The board of appeals (board) of the town of Truro (town) issued a building permit to the codefendant Donald Kline for work on his property at 25-27 Stephens Way (Kline property or property). The plaintiffs, direct abutters or abutters once removed, sought judicial review under G. L. c. 40A, § 17. A judge of the Land Court concluded that the town’s building commissioner erred in determining that the project would not increase the existing nonconforming nature of the property, and that the board consequently erred in upholding that determination.
Background. The facts are undisputed. The property comprises 9.11 acres located in a residential district in the town in which the minimum lot size is 33,750 square feet (or roughly three-quarters of one acre) and the minimum frontage is 150 feet on a street of at least forty feet in width. An owner of conforming property is permitted a single family residence and a “habitable studio” as that term is defined in the town’s zoning by-law.3
For many years the property contained a small house of roughly 1,970 square feet, predating the present dimensional requirements. That house qualified as a preexisting nonconform
Standing. The judge found that the plaintiffs have standing because the defendants failed to proffer any evidence that would rebut the presumption of aggrievement. We agree. The plaintiffs alleged in their complaint that the project would “increase traffic and exacerbate the unsafe conditions on Stephens Way, interfere with the ability of emergency vehicles to access the plaintiffs’ properties, and interfere with the [ejasement that the plaintiffs have over the Kline Property and rely upon for safe access to their properties.” Despite the fact that the property relies for access on a road that is deficient in width under the town’s zoning code, and was alleged to be deficient in quality by the plaintiffs whose properties are located on the same road beyond the Kline property, the defendants offered no evidence that the project would not adversely affect traffic on what the judge described as “this constrained, narrow, twisting road over which the [pjlaintiffs need to pass.”
Standing is a prerequisite for judicial review. Accordingly the defendants might still challenge the judge’s finding, based as it is on the defendants’ failure to rebut the presumption in favor of aggrievement established by the plaintiffs. We therefore also consider the judge’s conclusion that the plaintiffs cannot base a claim of aggrievement on impairment of view. The judge correctly noted that a zoning by-law can create a protected interest in views from a landowner’s property. See Martin v. Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints, 434 Mass. 141, 146-147 (2001). In this case the by-law itself does not explicitly refer to views; it does however incorporate by reference the town’s local comprehensive plan,4 which contains the following statement: “Long and broad
Mootness. After the case had been filed in the Land Court, Kline prepared an “approval not required” (ANR) plan, which depicts the road fronting the property as forty feet in width. This plan, he asserted, rendered the case moot because the property was thereby brought into compliance. The judge correctly rejected this argument, noting that the by-law “does not cast its requirement for a road forty feet wide so it can be satisfied merely by drawing a new line on a paper plan.”5 Frontage roads must “in fact exist on the ground.” Perry v. Planning Bd. of Nantucket, 15 Mass. App. Ct. 144, 151 (1983). Even if the plan alone were deemed adequate, “[t]he Board may disapprove a plan if it determines the access road to the subdivision is inadequate.” Truro planning board subdivision regulations, § IV (f)2. See Perry, supra, 153 (board can properly disapprove a plan “because of inadequate access, despite technical compliance with frontage requirements”). Here, moreover, the regulation specifically requires a width of forty feet; it does not permit a separate overriding determination that a lesser width is permissible if it can be deemed of “sufficient width, suitable
Alteration. The judge determined that the building commissioner did not abuse his discretion in determining that the “project fits the Truro definition of an ‘alteration.’ ” Our review of the meaning of statutory or regulatory language is de novo. Commerce Ins. Co. v. Commissioner of Ins., 447 Mass. 478, 481 (2006).
Section 10.4 of the by-law defines alteration as follows:
“Any construction, reconstruction or related action resulting in a change in the structural parts, height, number of stories, exits, size, use or location of a building or other structure or any other related change.”
We conclude that the project fails to qualify under this definition.
Our analysis begins with the fact that, considered independently, the erection of any new building requires conformity with current zoning regulations. G. L. c. 40A, § 6. A simultaneous and additional change to the property — here, removal of kitchen facilities from the original structure — does not remove this requirement by converting the new house into an alteration of the old cottage. Efforts to characterize the new house as an alteration of the original one as a consequence of removing the old cooking facilities are unpersuasive, as there is no requisite connection: an entirely new building in a different location, which is also completely different in appearance and more than four times the size of its predecessor, cannot correctly be deemed an “alteration” of the original. That conclusion is unavoidable both from the perspective of regulatory terminology and common usage.6
The statutory authority conferred upon the town under c. 40A provides it with the power, subject to an abuse of discretion or clear error, to determine when an alteration has — or has not — occurred. However, the statute does not permit the town to ignore the legislative provision requiring conformity with current zoning requirements by the simple expedient of declaring every change, and every simultaneous aggregation of changes, to be no more than an “alteration” of nonconforming property. It is axiomatic that “[a] by-law cannot conflict with the statute.” Planning Bd. of Reading v. Board of Appeals of Reading, 333 Mass. 657, 660 (1956). Here, the by-law itself is unobjectionable, but both in its interpretation and its application of the bylaw, the town has strayed beyond the statutory bounds.7 Nor, in this context, can it be asserted that the by-law’s catchall phrase “any other related change” permits the unlimited combination of changes while the preceding body of the by-law does not. That phrase merely allows for the consideration of changes not explicitly listed.
Finally we note that the judge correctly recognized the
Conclusion. The judge’s remand to the board is affirmed for further proceedings consistent with this opinion, and specifically subject to our determination that the project does not constitute an alteration.9
So ordered.
3.
In pertinent part, § 10.4 of the by-law, entitled “Definitions,” states: “A habitable studio shall consist of one or more bedrooms, with or without bathroom facilities, in a building detached from the principal residence, which is incidental and accessory to the principal residence and which does not include residential kitchen facilities.”
4.
Section 10.2 of the zoning by-law states, “The purpose of this bylaw is
5.
Lot frontage is defined in the by-law as “[t]hat portion of a lot fronting upon and having access to a street.” By-law § 10.4. “[S]treet right-of-ways shall be 40 feet” in their minimum width. Truro planning board subdivision regulations, § IV(b). See By-law § 10.4 (defining “street” as conforming to subdivision regulations).
6.
“[A]lter, 1: to cause to become different in some particular characteristic
7.
We note that in oral argument before us the town asserted that in nineteen years, without exception, it had never determined that a change did not qualify as an alteration, and that it was within its authority in so doing. Our decision is however limited to the facts of this case.
8.
We note as well that the judge properly applied the holdings of Bransford v. Board of Appeals of Edgartown, 444 Mass, at 832, and Bjorklund v. Zoning Bd. of Appeals of Norwell, 450 Mass. 357 (2008), in determining that a change to the structure triggered the statute even though the existing nonconformity related to the lot (frontage). See Bransford, supra at 861 (rejecting argument that “no problem exists because [the plaintiffs’] nonconforming lot will remain exactly the same with the reconstructed residence”).
9.
The judge noted that ‘1 [notwithstanding the commencement of this action, Kline broke ground and commenced [the project]. On October 23, 2008, counsel for all parties appeared for a case management conference, at which I cautioned counsel for Kline that he proceeded with construction at his own risk, being fully aware of the pending challenge.”