Heard: October 1, 2018.
action commenced in the Land Court Department on November 18,
2016. The case was heard by Keith C. Long, J., on motions for
Supreme Judicial Court granted an application for direct
appellate review. Jeffrey P. Allen (Donald J. Gentile also
present) for the plaintiffs.
Jeffrey P. Allen (Donald J. Gentile also present) for the
Jennifer Dopazo Gilbert for Jason Jewhurst & another.
Jonathan Simpson, Associate Town Counsel, for zoning board of
appeals of Brookline.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
again construe the "difficult and infelicitous"
language of the first two sentences of G. L. c. 40A, §
6, insofar as they concern single- or two-family residential
structures. See Fitzsimonds v. Board of Appeals of
Chatham, 21 Mass.App.Ct. 53, 55-56 (1985) . These
statutory provisions set forth both the exemption afforded to
all legally preexisting nonconforming structures and uses
from the application of zoning ordinances and bylaws, as well
as how those protections can be forfeited or retained when
such nonconforming structures or uses are extended or
altered. The statute also accords special protection to
single- and two-family residential structures in the event
that the nonconformity is altered or extended; it is the
extent of that protection in the circumstances here that we
defendant homeowners sought to modify the roof of their
two-family house and to add a dormer; doing so would increase
the preexisting nonconforming floor area ratio. The zoning
board of appeals of Brookline (board) allowed the
defendant's request for a special permit, after
determining that increasing the preexisting nonconforming
nature of the structure would not be substantially more
detrimental to the neighborhood than the preexisting
nonconforming use. The plaintiff abutters, however,
challenged the board's action, contending that the
statute does not exempt the defendants from compliance with
municipal bylaws, and that to do so here would require the
defendants to obtain a variance in addition to the special
permit. The plaintiffs appealed; a Land Court judge upheld
the board's action.
conclude that the statute requires an owner of a single-or
two-family residential building with a preexisting
nonconformity, who proposes a modification that is found to
increase the nature of the nonconforming structure, to obtain
a finding under G. L. c. 40A, § 6, that "such
change, extension or alteration shall not be substantially
more detrimental that the existing nonconforming use to the
neighborhood." The statute does not require the
homeowner also to obtain a variance in such circumstances. We
accordingly affirm the judgment of the Land Court.
material facts are not in dispute. The defendants, Jason
Jewhurst and Nurit Zuker, own the second-floor condominium
unit of a two-family house on Searle Avenue in Brookline. The
plaintiffs, Maria Bellalta and Damon Burnard, own a house on
Cypress Street that abuts the defendants' house. The two
abutting lots are located in a T-5 residential zoning
district that encompasses single-family, two-family, and
attached single-family houses. While many of the lots on
Searle Avenue are undersized according to the Brookline
zoning bylaw, the defendants' lot is the smallest; its 2,
773 square feet are slightly more than one-half the minimum
requirement of 5, 000 square feet for a lot containing a
two-family house in the T-5 zone.
the structure itself, the sole legal nonconformity of the
defendants' house, which was in existence when they
purchased the property, is the floor area ratio
(FAR). The Town of Brookline (town) bylaw
requires a maximum FAR of 1.0 for a two-family house in a T-5
zoning district, and the defendants' house has a FAR of
1.14. The proposed renovation project would convert the roof
of the house from a hip roof to a gable roof and would add a
dormer to the street-facing fagade, thereby creating 677
square feet of additional living space on the third floor of
the building. This project would increase the
already nonconforming FAR from 1.14 to 1.38.
defendants initially submitted their request for a building
permit to the building commissioner; that application was
denied. The defendants then submitted a
request for a special permit to the board, and the board
conducted a public hearing on the request. The abutting
plaintiffs opposed the request for a special permit, both in
writing prior to the hearing and orally at the hearing.
Fifteen other neighbors submitted statements in support of
the project; they viewed the proposed roofline as being
consistent with the over-all design and character of the
of the town's building department and its planning board
spoke at the hearing, and presented reports on their review
of the project, as did the defendants' architect, who had
conducted shadow studies of the effect of the proposed roof
on the abutters' property. Statements and reports from
town officials indicated that the majority of the houses on
the street have partial or full third stories, and are taller
than the defendants' existing building. Those officials
also noted that the proposed project would make the
defendant's house appear more consistent, both in height
and in design, with the others on the street. The board
unanimously determined, inter alia, that, pursuant to the
requirements of section 9.05 of the bylaw, "[t]he
specific site is an appropriate location for such a use,
structure, or condition," and "[t]he use as
developed will not adversely affect the neighborhood."
Accordingly, the board found that the defendants had
satisfied the requirements for issuance of a special
permit. The defendants did not request a
plaintiffs commenced an action in the Land Court, pursuant to
G. L. c. 40A, § 17, to challenge the board's
decision. The parties agreed that the material facts were not
in dispute, and filed cross motions for summary judgment. A
Land Court judge denied the plaintiffs' motion and
allowed the joint motion of the defendants and the board. The
plaintiffs appealed to the Appeals Court, and we allowed
their petition for direct appellate review.
review de novo the allowance of a motion for summary
judgment, viewing the facts "in the light most favorable
to the party against whom judgment entered." 81
Spooner Rd., LLC v. Zoning Bd. of Appeals of Brookline,
461 Mass. 692, 699 (2012), citing Albahari v. Zoning Bd.
of Appeals of Brewster, 76 Mass.App.Ct. 245, 248 n.4
(2010) . A decision on a motion for summary judgment will be
upheld if the judge "ruled on undisputed material facts
and the ...