MA Appeals Court Finds Town Zoning By-Law Required Property Owner to Seek a Special Permit for His Proposed Building

This post was authored by Matthew Loeser, Esq.

Defendant Stanley Sikorski desired to build a four-bedroom, two-and-a-half story single family residence on a vacant lot in Provincetown. Despite the fact that § 2640 of the zoning by-law that regulates the scale of new construction and additions 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 concluded that the by-law’s proscriptions were inapplicable to the proposed building. In an appeal brought by abutters Jonathan Sinaiko and Camille Cabrey, the Superior Court judge upheld the board’s decision on cross motions for summary judgment in favor of Defendant. On appeal, the abutters argued that the plain language of § 2640 required its application, and the by-law required Sikorski to seek a special permit for his proposed building.

The court found that the by-law, by its own language “is applicable to all new buildings and all additions in all zoning districts in Provincetown.” Here, there were no buildings in the relevent neighborhood, so the board concluded that the by-law placed no limits on the proposed building’s size. Rather than allowing a building to be constructed with no size limitation, or setting the neighborhood average at zero and requiring a special permit for any house to be built, the court analyzed the building commissioner’s decision. The building commissioner ended up with no existing structures on which to determine a neighborhood average only because he excluded the two existing structures that were located within 250 feet of the center of the lot. However, nothing in the language of § 2640 compelled the building commissioner to exclude existing structures when doing so would leave him without a basis upon which to set a neighborhood average.

Accordingly, the court reversed, finding the proposed building was too large to be approved under the board’s interpretation without a special permit.

Sinaiko v Zoning Board of Appeals of Provincetown, 2018 WL 2376520 (MA App. 5/25/2018)