952 N.E.2d 977
Mass. App. Ct.2011Background
- Gales own 17 Squam Rock Rd.; Foote, as trustee, owns 19 Squam Rock Rd. held in trust for Foote family.
- Originally one lot, later divided in 1961 into Gale and Foote parcels with a right of way over Gale property to Foote property.
- Foote lot is nonconforming in area/setbacks under Gloucester zoning; Gale lot largely surrounding Foote lot.
- In 2008 Foote sought to replace a 1,000 sq ft seasonal cottage with a 2,700 sq ft year‑round residence, increasing footprint.
- Foote sought a special permit under G. L. c. 40A, § 6, and a variance under Gloucester ordinance § 2.4.5(d) to reconstruct.
- Board granted a special permit finding reconstruction would not be substantially more detrimental; granted variance citing hardship due to lot shape, steep grade, and ledge, enabling reconstruction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing of Gales to appeal | Gales are abutters with standing given right of way impact. | Footes must show aggrievement; standing could be challenged. | Gales have standing to appeal. |
| Necessity of a variance under § 2.4.5(d) when § 6 provides no substantial detriment finding | Ordinance requires variance notwithstanding § 6 no-substantial-detriment finding. | No variance needed; § 6 suffices for single/two-family alterations. | Variance not required; no substantial detriment finding alone suffices. |
| Scope of § 6 two-part framework for single/two-family structures | Local by-law requirements must be applied alongside no substantial detriment finding. | Second sentence finding stands alone; no extra local‑by‑law step required. | Board's no-substantial-detriment finding was sufficient; no § 2.4.5(d) variance needed. |
| Effect of Rockwood v. Snow Inn on the decision | Rockwood requires ordinance adherence for reconstruction when nonconformities are intensified. | Rockwood dicta; applicable context is commercial; Bransford framework controls. | Rockwood does not require a variance here; Bransford framework governs. |
Key Cases Cited
- 81 Spooner Road, LLC v. Zoning Bd. of Appeals of Brookline, 78 Mass. App. Ct. 233 (2010) (abutter standing presumption; aggrievement standard)
- Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 (1996) (standing requires special and particularized injury)
- Fitzsimonds v. Board of Appeals of Chatham, 21 Mass. App. Ct. 53 (1985) (framework for no substantial detriment under § 6)
- Bransford v. Zoning Bd. of Appeals of Edgartown, 444 Mass. 852 (2005) (two-part framework for § 6; framework later adopted in Bjorklund)
- Willard v. Board of Appeals of Orleans, 25 Mass. App. Ct. 15 (1987) (interpretive framework for second sentence of § 6)
- Rockwood v. Snow Inn Corp., 409 Mass. 361 (1991) (reconstruction of nonconforming uses; dicta when context is commercial)
- Bjorklund v. Zoning Bd. of Appeals of Norwell, 450 Mass. 357 (2008) (adopts Bransford framework for single/family alterations)
- Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115 (2011) (standing considerations related to ocean views; discussed in notes)
- Goldhirsh v. McNear, 32 Mass. App. Ct. 455 (1992) (historic treatment of single/family nonconformities)
- Dial Away Co. v. Zoning Bd. of Appeals of Auburn, 41 Mass. App. Ct. 165 (1996) (framework for substantial/non-substantial detriment analysis)