Opinion
No. 11–P–1259.
2012-06-15
Jason P. SCHOLTEN v. Sandra CARTER & another.
By the Court (GRASSO, MILLS & TRAINOR, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In a judgment issued January 18, 2011, a Land Court judge annulled a decision of the zoning board of appeals of Reading (ZBA) and ordered the revocation of a building permit issued to defendant Sandra Carter by the town's building inspector. The defendant Carter appeals the judgment. We affirm.
The project at issue consisted of, inter alia, the replacement of the foundation of the existing single-family structure, the addition of a second story, and an addition to the rear of the structure. Importantly, the existing structure was located on an undersized lot, and also violated at least one of the town's minimum setback requirements.
The ZBA affirmed the grant of the building permit based on language in § 6.3.11.1 of the Reading zoning by-law (the by-law) providing that “[a]n existing nonconforming one-family or two-family dwelling ... which is nonconforming with respect to a minimum setback, may be enlarged or extended in any other direction in compliance with this By–Law, by the issuance of a building permit .” We agree with the judge that the ZBA erred in its interpretation of § 6.3.11.1. That section, by its plain language, does not authorize the expansion of a structure located on an undersized lot simply because the structure also violates minimum setback requirements.
As noted by the judge, the defendant's argument, if we accept it, would have the anomalous and undesirable effect of entitling undersized lots that violate setback requirements “greater protections ... than [an] undersized lot that complies with all setbacks.”
Further, although small-scale improvements are exempted from zoning ordinances and by-laws under G.L. c. 40A, § 6, first par., the substantial reconstruction and expansion at issue here is not exempted. See Bjorklund v. Zoning Bd. of Appeals of Norwell, 450 Mass. 357, 362–363 (2008). Such a project may only be performed on a nonconforming lot with the acquisition of a special permit. See G.L. c. 40A, § 6. As is made clear in the notice of docket entry that accompanied the judge's order, the defendant is not foreclosed from seeking such a permit.
The docket entry provided that the judgment was “Without Prejudice to Defendant ... Seeking Additional Zoning Relief.”
Judgment affirmed.