Heard: March 12, 2018
action commenced in the Superior Court Department on
September 25, 2015.
case was heard by Robert C. Rufo, J., on motions for summary
J. Wall for the plaintiffs.
Christopher J. Snow for David Mayo & another.
Present: Milkey, Maldonado, & Desmond, JJ.
Stanley Sikorski wants to build a four-bedroom,
two-and-a-half story single family residence on a vacant lot
(lot) in Provincetown (town). At issue is the application of
§ 2640 of the town zoning by-law (by-law), which
regulates the scale of new construction and additions.
Despite the fact that § 2640 expressly states that it
"is applicable to all new buildings and all additions in
all zoning districts in Provincetown, " the building
commissioner and zoning board of appeals (board) concluded
that the by-law's proscriptions were inapplicable to the
proposed building here. In an appeal brought by abutters
Jonathan Sinaiko and Camille Cabrey (abutters) pursuant to G.
L. c. 40A, § 17, a Superior Court judge upheld the
board's decision on cross motions for summary judgment.
The abutters now appeal, arguing that the plain language of
§ 2640 requires its application here, and that, as
applied, the by-law requires Sikorski to seek a special
permit for his proposed building. Because we agree, we
reverse the judgment.
2640 of the by-law regulates building scale. Its express
purpose is to preserve the town's existing character of
"buildings that have relatively consistent and
harmonious scale within neighborhoods, " and to prevent
the construction of "[n]ewer buildings, where the
appropriate scale has not been maintained, [that] have
disrupted the character of the neighborhoods." By-law
§ 2640(B). To serve these ends, the by-law limits the
size of new buildings and building additions that can be
constructed. Those limits are keyed to the size of existing
structures (measured by volume) that already exist in the
the terms of § 2640, a landowner can -- as of right --
build a new structure (or expand an existing structure) that
is up to twenty-five percent larger than the average size of
existing buildings in the area (referred to in the by-law as
the "neighborhood average"). By-law §
2640(D). A landowner can seek to construct a larger building
than can be built as of right by applying for a special
permit from the board. Id. § 2640(E). The board
is vested with broad discretion to grant a special permit
where "the deviation [from the scale allowed as of
right] is appropriate and [the proposal] meets one or more of
[six enumerated] criteria" (the specifics of which we
reserve for later discussion). Ibid.
details of how the neighborhood average is to be calculated
are important. That average is set based on existing
structures that lie within 250 feet of the applicable
measuring point. That measuring point in turn varies
depending on whether the proposal is for new construction or
for the expansion of an existing structure. For new
construction, the starting point is "the center of the
parcel, " while for proposed expansions it is "the
center of the proposed renovation." By-law §
2640(C) . Generally, all existing structures that lie within
250 feet of the applicable measuring point are to be
included, with the qualification that "the largest and
smallest structures" within that radius are to be
excluded. Ibid. Thus, the neighborhood
average employs a form of what statisticians refer to as a
"trimmed mean." See Oxford Dictionary of
Statistical Terms 412 (6th ed. 2006).
The proposed building.
in question is owned by defendant David Mayo, but Sikorski
apparently has agreed to purchase it contingent on his
obtaining a building permit. The lot, which is rectangular,
is over one acre in size, but it is exceptionally long and
narrow. Specifically, the lot is only forty-nine feet wide,
but over 1, 000 thousand feet long. One of the narrow sides
fronts on Bradford Street, with the lot extending north from
that street deep into a wooded area.
originally proposed to build a two-family residence at a
particular location on the lot. Because of neighborhood
opposition to that proposal, Sikorski changed it to a
single-family home, reduced its size, moved its location on
the lot, and modified its design in certain respects. Under
the revised proposal, the building would remain a not
insubstantial structure. For example, the building will
include two-and-a-half stories -- the maximum allowed in the
-- and comprise 33, 810 cubic feet in volume.
proposed house is to be located at the southern edge of the
lot, that is, next to Bradford Street. It is undisputed that
there are many existing structures in close proximity to that
proposed location. For example, as the abutters pointed out
in their appeal to the board, there are approximately sixteen
structures that lie within 250 foot of the center of the
proposed building, and the average volume of those structures
--not including the largest and smallest -- is 9, 250 cubic
feet. Thus, the proposed building is over three times ...