NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
25-P-170
GUY MADDALONE & another1
vs.
BOARD OF APPEALS OF NANTUCKET & another.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiffs, Guy and Diane Maddalone, appeal from a
judgment issued by a Land Court judge affirming the decision of
the board of appeals of Nantucket (board) to grant the
defendant, Michael Metz, a special permit to renovate and
enlarge the existing structures on his property.3 We affirm.
Background. The plaintiffs own a two-story vacation home
with ocean views located in the Surfside area of Nantucket at 14
Western Avenue (Maddalone property). The abutting property to
1 Diane Maddalone.
2 Michael Metz.
3 The board did not file a brief or appear at oral argument. the west is 16 Western Avenue, which has been owned by Metz
since 2007.
When the Maddalones purchased their property in January
2017, the Metz property housed a ramshackle dwelling and a
weathered garage (existing structures). The existing structures
predated the 1972 adoption of the town of Nantucket's zoning
bylaw (bylaw). The part of the Metz property pertinent to this
case is located in an R-20 district pursuant to the bylaw, in
which allowed uses include "primary dwellings."4 "Garages-
residential" use is allowed therein when it qualifies as
"accessory use."5
Under the bylaw's setback provisions in § 139-16.A,
structures in the district must be positioned at least ten feet
from side yard boundary lines and thirty feet from front yard
4 The bylaw defines "primary dwelling" in § 139-2 as "[a] detached single-family dwelling unit or the portion of a structure that contains a single dwelling unit. A primary dwelling may contain an attached garage." The bylaw defines "dwelling unit" in § 139-2 as "[a] room or enclosed floor space used, or to be used, as a habitable unit for one family or household, with facilities for sleeping, cooking and sanitation."
5 The bylaw defines "accessory use" in § 139-15 as an "activit[y] as [is] subordinate and customarily incident to . . . permitted uses."
2 property or street lines. The existing structures were both in
violation of these requirements.6
1. Use of the Metz property prior to December 2020. For a
total of thirteen seasons during the 1980s up to 1998, a
previous owner of the Metz property rented the property to a
family. The use of the Metz property between 1998 and November
2007 is unknown, but the parties agreed that the existing
structures had been in a state of disrepair for a number of
years before Metz's purchase. This disrepair rendered the Metz
property uninhabitable, and no one was living there when Metz
purchased the property. Between 2007 and December 2020, Metz
did not lease the property to anyone, and no one resided there.
Metz and his family used the garage between 2007 and
December 2020 for storage of motor vehicles and bicycles.
Metz's caretakers performed some repairs of the garage during
that time. Metz's caretakers performed seasonal cleanups and
light maintenance of the exterior of the Metz property every
year from late 2007 through December 2020. During that period,
Metz or his caretakers inspected the premises monthly for signs
of break-ins or damage.
6 The existing dwelling was 15.6 feet from the Metz property's front line (along the southern edge of Western Avenue) and 5.6 feet from the property's western boundary. The existing garage was only 0.2 feet from the Metz property's front line and 7.8 feet from the boundary with the Maddalone property.
3 Between 2009 and 2010, Metz enlarged the septic system to
accommodate a five-bedroom dwelling, though the existing
dwelling had fewer bedrooms than that.
In 2015, Metz was approached by a real estate broker who
proposed to market the Metz and Maddalone properties together.
Metz agreed, and had the boards and other protective coverings
removed from the existing dwelling's windows and doors. Metz
and the broker hired a landscaping crew to remove poison ivy and
brush that blocked the existing dwelling's ocean views, and the
broker "staged" the dwelling's interior and took promotional
photographs and video recordings. In the second half of 2015,
the broker showed the interior of the existing dwelling to
several buyers. During each summer between 2016 and 2019, the
broker showed the property to two or three prospective buyers.
2. Proposed renovations. On December 15, 2020, Metz
applied to the board seeking a special permit under § 139-33.A
of the bylaw for the proposed improvements to the property. The
proposal was to remove the existing garage and construct a two-
story, full basement addition on the eastern side of the
existing dwelling, as well as raising the existing roofline and
expanding the dormered second floor of the existing dwelling.
The proposal also called for the installation of two new window
4 wells, one in each proposed basement bedroom, to satisfy the
bylaw's basement egress requirements.
Whereas the closest distance between the Maddalone property
line and the existing structures was 7.8 feet, the retaining
walls attached to the proposed window wells would come closer to
the Maddalone property boundary than 7.8 feet. The renovation
would in fact increase the distance between any structure and
the Metz property front line from 0.2 feet to 10.4 feet.
After removing the existing garage, a new expanded second
story of the dwelling would occupy the space above where the
garage had been, coming up to 7.8 feet from the Maddalone
property line.
3. Proceedings below. The Maddalones wrote a letter to
the board opposing Metz's application for a special permit. The
board issued its decision granting the permit in March 2021, and
the plaintiffs appealed from that decision to the Land Court
pursuant to G. L. c. 40A, § 17. In June 2023, the town building
commissioner issued a building permit to Metz for the
renovations and construction was completed by the time of trial.
The parties appeared for trial on four issues:7 (1) whether
Metz abandoned the right to obtain a special permit through
7 The judge added the issue of standing, which he resolved in favor of the Maddalones.
5 "non-use" of the existing dwelling; (2) whether the window wells
were excluded from the special permitting exemptions in the
bylaw; (3) whether Metz's renovations would not be substantially
more detrimental to the neighborhood than the preexisting
nonconforming structures; and (4) whether the renovations were
in conformity with the general purpose and intent of the bylaw.
In a first decision (Maddalone I), the judge vacated the
board's decision and remanded to the board to determine whether,
for three or more years after November 2, 2016,8 the existing
dwelling on the Metz property had been in a condition in which
it could not be used as a "dwelling unit" pursuant to the bylaw,
such that the dwelling had lost the bylaw's protections for
existing nonconforming uses and structures and therefore could
not be reestablished by special permit, instead requiring a
variance.
On May 24, 2023, following a public meeting, the board
issued a second, unanimous decision (remand decision) to grant
Metz a special permit for the proposed renovation. In its
remand decision, the board interpreted the bylaw's "non-use"
provision to mean that a preexisting, nonconforming single-
family dwelling retains its protected status for "[s]o long as
8 The significance of this date is discussed infra.
6 . . . [it] remains in physical existence and through a
combination of permitting and/or rehabilitation may be
inhabited." The Maddalones appealed from the board's remand
decision, pursuant to G. L. c. 40A, § 17.
On January 30, 2024, the judge issued an order (Maddalone
II) ruling that the board's interpretation of the bylaw was
unreasonable and articulating the test for "non-use" of an
unoccupied, preexisting, nonconforming dwelling under the bylaw
as "whether 'there was . . . no effort to market, rent, or
occupy the dwelling or to maintain it as a dwelling'" (citation
omitted). The judge continued the case to allow the parties the
opportunity to supplement the trial record pertaining to the
determination of "non-use." On June 13, 2024, the judge issued
an order resolving the "non-use" issue in favor of Metz and the
board, without making further findings or legal conclusions.
On November 8, 2024, the judge resolved the remaining
issues in favor of the defendants and entered judgment affirming
the board's remand decision. This appeal followed.
Discussion. 1. Standard of review. In reviewing the
decision of a municipal board under G. L. c. 40A, the Land Court
"shall hear all evidence pertinent to the authority of the board
or special permit granting authority and determine the facts,
and, upon the facts as so determined, annul such decision . . .
7 or make such other decree as justice and equity may require."
G. L. c. 40A, § 17. On appeal from a board's "decision granting
a special permit, the burden of proof is upon the applicant
. . . and the board . . . to submit evidence to demonstrate that
the statutory prerequisites for the granting of a special permit
have been met, and that the special permit was properly issued."
Fish v. Accidental Auto Body, Inc., 95 Mass. App. Ct. 355, 362
(2019). "On appellate review, we defer to the factual findings
of the trial judge unless they are clearly erroneous. We review
the judge's determinations of law, including interpretations of
zoning bylaws, de novo, but we remain 'highly deferential' to a
board's interpretation of its own ordinances" (citations
omitted). Grady v. Zoning Bd. of Appeals of Peabody, 465 Mass.
725, 728-729 (2013).
2. Creation of new nonconformities. The plaintiffs argue
that the judge erred in concluding that no new nonconformity was
created by the renovations. They contend that the new
dwelling's second story and window wells are new nonconformities
that require a variance rather than a special permit.
a. Second story of new dwelling. Because only the
existing garage, and not the existing dwelling, violated the
eastern side yard setback, the plaintiffs contend that the
intrusion of the new dwelling into that setback is a new
8 nonconformity that does not enjoy the protections of the
garage's preexisting nonconformity. We do not reach the merits
of this argument because it is not properly before us.
At a pretrial conference, the judge and the parties
identified four issues for trial. Whether the new second
story's encroachment into the eastern setback created a new
nonconformity was not among those issues. Our review of the
record shows that the first and only time that the plaintiffs
raised this issue at trial was in their closing argument.
However, the defendants responded by requesting the judge to
disregard the argument on the ground that it "was rejected by
the [c]ourt in the summary judgment phase and is outside the
scope of the express issues identified for trial." The record
provided to us by the plaintiffs nowhere else references the
issue,9 and does not include the pretrial briefing or any
information about the summary judgment phase. As far as we can
tell, neither the board's two decisions nor the judge's three
written decisions addressed the new nonconformity of the second
story now raised by the Maddalones. The Maddalones concede as
much in their brief.
9 The issue was also not raised in the plaintiffs' complaints, filed in April 2021 and as amended in June 2023 following the board's remand decision, which stated that "the [i]mprovements increased the existing side-yard setback non- conformity" (emphasis added).
9 The record is thus inadequate to evaluate whether the issue
was properly raised below, why it was excluded from trial, and
how it was treated by the judge. The plaintiffs, as appellants,
bore the burden of producing a record appendix adequate for an
appellate court to review. Mass. R. A. P. 18 (a), as appearing
in 481 Mass. 1637 (2019); Openshaw v. Openshaw, 493 Mass. 599,
611 n.21 (2024). Therefore, the issue is not properly before
us.
b. Window wells. The plaintiffs argue that the board's
interpretation of the bylaw as excluding at or below-grade
window wells from the definition of "structure" was
unreasonable, and that the judge erred by deferring to that
interpretation. Because Metz's new window wells extended
farther into the east side yard setback than any existing
structure, the plaintiffs contend that they created a new
nonconformity. We disagree.
The term "Structure" is defined under § 139-2 of the bylaw
as follows:
"Anything constructed or erected, the use of which requires a fixed location on the ground. 'Structure' shall be construed, where the context allows, as though followed by the words 'or part thereof' and shall include, but not be limited to, buildings [and] retaining walls which support buildings . . . . 'Structure' shall not include retaining walls not exceeding four feet in height for landscaping purposes. . . ."
10 The term "window well" appears twice in § 139-2, in the
definitions of "ground cover" and "secondary dwelling," but is
never separately defined. As the judge observed, a primary
function of the window wells is to "prevent . . . side lawns
from subsiding into excavated areas surrounding [the] home's
basement windows." It is patently reasonable to consider the
structural aspect of window wells as akin to a "landscape
retaining wall." Because window wells do not support the
buildings to which they are attached, this similarity does not
warrant their treatment as "structures" under the definition's
second sentence. However, because the bylaw's calculation of a
structure's height pursuant to § 139.17.A disregards the
subterranean portion thereof, below-ground window wells such as
Metz's are functionally similar to the "retaining walls not
exceeding four feet in height for landscaping purposes" that are
excluded by the definition's third sentence. In light of this
analogy, and because the list of excluded structures in the
third sentence is not expressly exhaustive, the board's
interpretation of "structure" as excluding window wells is
reasonable and entitled to deference. Shirley Wayside Ltd.
Partnership v. Board of Appeals of Shirley, 461 Mass. 469, 475
(2012). The judge did not err.
11 We also find unavailing the plaintiffs' argument that the
board's interpretation of the bylaw conflicts with the
Massachusetts Building Code. Where G. L. c. 40A does not define
a term -- here, "structure" -- it is understood that the
Legislature intended to leave it "to each municipality to define
the term . . . for purposes of its own zoning code," consistent
with the general delegation of zoning authority. BAK Realty,
LLC v. Fitchburg, 495 Mass. 587, 595 (2025). The town of
Nantucket is free to define "structure" for purposes of its own
zoning bylaw, notwithstanding the Building Code's treatment of
window wells.
3. Nonuse of the existing dwelling. General Laws c. 40A,
§ 6, permits municipalities to end statutory protections for
preexisting, nonconforming structures and uses if such
nonconformities have not been "used for a period of two years or
more." See Chiaraluce v. Zoning Bd. of Appeals of Wareham, 89
Mass. App. Ct. 290, 293-294 (2016). Nantucket's corresponding
"non-use" provision, found in § 139-33.C of the bylaw, provides
that "[n]onconforming uses and structures abandoned or not used
for a period of three years shall not be reestablished."
a. Applicable time period. The plaintiffs argue that the
judge erred by limiting review of the use of the existing
dwelling to after November 2, 2016. We disagree.
12 November 2, 2016, is the effective date of St. 2016,
c. 184, § 1, entitled "an act relative to non-conforming
structures," which inserted the following new third paragraph
into G. L. c. 40A, § 7:
"If real property has been improved by the erection or alteration of 1 or more structures and the structures or alterations have been in existence for a period of at least 10 years and no notice of an action, suit or proceeding as to an alleged violation of this chapter or of an ordinance or by-law adopted under this chapter has been recorded in the registry of deeds for the county or district in which the real estate is located or, in the case of registered land, has been filed in the registry district in which the land is located within a period of 10 years from the date the structures were erected, then the structures shall be deemed, for zoning purposes, to be legally non-conforming structures subject to section 6 and any local ordinance or by-law relating to non-conforming structures."
The new act also expressly provided that the amendment would
apply retroactively to structures "erected prior to" the
statute's effective date. St. 2016, c. 184, § 2.
In this case, the judge found that the existing structures
predated the 1972 adoption of the Nantucket bylaw and that the
Metz property was never the subject of a notice of the type
described in the amendment. Thus, the plain language of the
amendment "deemed [the existing structures], for zoning
purposes, to be legally non-conforming structures subject to
section 6 and [the bylaw]." G. L. c. 40A, § 7. As the judge
correctly stated, "even if the [e]xisting [s]tructures lost
their protected status on account of non-use prior to November
13 2, 2016, the 2016 amendment to § 7 restored that status as of
that date." The judge did not err in limiting review of nonuse
to after the enactment of the amendment.
The plaintiffs argue to the contrary that the statute did
not create new protected structures because it merely "affirm[s]
that the nonconforming structures are subject to further
regulation and use analysis." This reading is untenable because
it would render the statute practically meaningless. Volin v.
Board of Pub. Accountancy, 422 Mass. 175, 179 (1996). Moreover,
it is irreconcilable with the statute's key language, providing
that qualifying "structures shall be deemed . . . to be legally
non-conforming structures." G. L. c. 40A, § 7.
b. Finding of nonoccurence of "non-use". The plaintiffs
argue that "there were at least two three-year periods of non-
use such that the preexisting nonconforming status of the
[e]xisting [d]welling was lost . . . prior to the 2021 special
permit [d]ecision."
One period of "non-use" alleged by the plaintiffs' brief is
from 2010, the time of the septic system upgrade, to late 2015,
when Metz began working with a broker. In light of our prior
determination that review of nonuse is properly limited to after
November 2, 2016, we need not consider this period.
14 The second alleged period of "non-use" is not specifically
identified in the plaintiffs' brief. Instead, the brief vaguely
asserts that Metz "took zero steps for over 13 years to improve
the dwelling such that it could function as a residence" and
that there was "clear evidence of vacancy, uninhabitability,
lack of utilities and appliances, and no efforts to maintain the
[e]xisting [d]welling as a residence."
The plaintiffs do not appear to dispute the legal test for
"non-use" under the bylaw, and as applied by the judge --
whether "there was . . . no effort to market, rent, or occupy
the dwelling or to maintain it as a dwelling." Rather, the
plaintiffs contend that the judge "flipped the analysis" by
"putting excessive weight" on the factors of effort to market or
rent the dwelling. We disagree.
Because the bylaw's definition of a "dwelling unit"
contemplates not just actively inhabited units but also any
"room or enclosed floor space . . . to be used . . . as a
habitable unit," evidence of an effort to market or rent a
dwelling for future use as a habitable unit may suffice,
standing alone, to establish use as a "primary dwelling."
Whether Metz met his burden to do so was a question of fact for
the trial judge. See, e.g., Orange v. Shay, 68 Mass. App. Ct.
358, 362 (2007).
15 A judge should not set aside a board's decision unless the
decision was "based on a legally untenable ground, or is
unreasonable, whimsical, capricious or arbitrary." MacGibbon v.
Board of Appeals of Duxbury, 356 Mass. 635, 639 (1970). The
court must determine that "no rational view of the facts the
court has found supports the board's conclusion" in order to
overturn the decision of the board. Britton v. Zoning Bd. of
Appeals of Gloucester, 59 Mass. App. Ct. 68, 74-75 (2003).
Here, the judge found that the existing dwelling had its
interior "staged" for showings in late 2015 and was shown a few
times each summer between 2017 and 2019. From 2016 to 2020,
Metz's caretakers continued to perform seasonal cleanups and
light maintenance on the existing structure's exterior. A
"rational view of the facts" could support the conclusion that
there was use of the dwelling between 2017 and 2020 based on an
effort to market the property. Britton, 59 Mass. App. Ct. at
75. Therefore, the judge did not err in finding that there was
no three-year period of "non-use" in the relevant time between
November 2, 2016, and December 2020.
4. Substantial detriment to the neighborhood. The
plaintiffs argue that the judge erred in concluding that the new
dwelling is not more substantially detrimental to the
neighborhood than the existing dwelling because it increases the
16 density of the neighborhood, significantly alters the mass and
appearance of the structure, and intrudes farther into the side
yard setback than the prior dwelling. We are not persuaded.
The judge found that the renovated Metz structures were
approved by the Nantucket historic district commission, "fit the
Surfside neighborhood architecturally and are less massive than
many of the nearby homes, including the Maddalones'." Nine out
of twelve houses on Western Avenue had second stories, and some
other houses in the Surfside neighborhood feature attached
garages and renovated basements with window well egresses like
the Metz property.
Regarding the side yard setback, the evidence supports the
judge's finding that the renovated dwelling added forty-four
square feet of encroaching second-floor space on the building's
eastern side yard (abutting the Maddalone property) but removed
at least 160 square feet of the existing garage's ground-level
encroachment into the Metz property's front yard setback.
The judge did not err in determining that the board's
finding was rational considering that the renovation conformed
to the neighborhood's architecture and substantially reduced the
Metz property's total setback nonconformity. See Britton, 59
Mass. App. Ct. at 74 (judge's review of "substantially more
17 detrimental" finding is limited to whether "any rational board
could [reach that] conclu[sion]" based on facts found by judge).
5. Factual challenges. The plaintiffs challenge several
of the judge's factual findings concerning the window wells, the
eastern setback, and the use of the existing dwelling.
The plaintiffs incorrectly characterize as a finding the
judge's determination that the window wells are not part of the
"structure" of the new dwelling. Other than the factual
questions of the height of the window wells and whether they
supported the dwelling, which the plaintiffs do not challenge on
appeal, this was a purely legal question concerning the
interpretation of the bylaw's definition of "structure." Our
review of the two specific findings challenged by the plaintiffs
-- finding seventeen of Maddalone I10 and finding twenty-six of
the instant case11 -- likewise reveals that the nature of the
plaintiffs' objections is legal, not factual.
10Finding seventeen stated that "[a]s part of the Renovations, Mr. Metz raised the roofline of the Existing Dwelling and, taking advantage of the area the Existing Garage occupied, expanded the second floor of the Dwelling easterly, towards 14 Western Ave."
11Finding twenty-six stated that "[t]he Renovations also didn't change the Existing Garage's non-conforming eastern side- yard setback distance (7.8 feet), but they extended into the Garage's non-conforming setback, within the Garage's footprint, a second floor."
18 Finally, the plaintiffs challenge the judge's findings
"[t]o the extent the [judge] found that the [e]xisting
[d]welling did not lack 'facilities for sleeping, cooking, and
sanitation.'" In fact, the judge only found that there was a
lack of evidence about the absence of those facilities during
the period in which the existing dwelling was being "staged" and
shown to prospective buyers. Based on our review of the record,
we conclude that this finding was not clearly erroneous.
Judgment affirmed.
By the Court (Walsh, Toone & Tan, JJ.12),
Clerk
Entered: March 9, 2026.
12 The panelists are listed in order of seniority.