## Facts

- Belle Soloway owned a single-family house in a single-residence zoning district in Westwood, Massachusetts.
- Soloway’s house was a lawfully existing nonconforming structure because it did not meet the district’s minimum dimensional requirements.
- Under the Town of Westwood zoning bylaw, the zoning board of appeals (ZBA) could grant a special permit to extend, alter, or change a nonconforming structure only if the change would not be substantially more detrimental to the neighborhood than the existing nonconforming structure.
- Soloway applied to the Westwood ZBA for special permits to construct an addition to her house to be used as an apartment for her elderly father.
- The town held a public hearing on the application.
- Neighboring property owners James and Elaine Giurleo appeared and testified in opposition, asserting that the proposed apartment would be very close to their property line.
- The ZBA granted Soloway’s application, finding that adverse effects would be outweighed by the project’s beneficial impact on the town.
- The ZBA also found the construction would not harm property values, would not be dangerous to public health, and would not be detrimental to the normal use of adjacent property.
- The Giurleos appealed the ZBA’s decision to the Massachusetts Land Court under G.L. c. 40A, § 17.

## Issues

1. Whether the ZBA lawfully granted special permits to extend or alter a preexisting nonconforming structure where the objecting abutters argued the addition would be substantially more detrimental to the neighborhood than the existing nonconforming structure.
2. Whether, in an appeal under G.L. c. 40A, § 17, the Giurleos proved grounds to annul the ZBA’s decision approving the addition and apartment.

## Decision

- The Land Court upheld the ZBA’s decision granting the special permits.
- The court concluded that the Giurleos did not establish that the proposed addition and apartment failed the “not substantially more detrimental to the neighborhood” standard governing changes to nonconforming structures.
- Judgment entered for the defendants, leaving the ZBA approval in place.

## Legal Principles

- Under Massachusetts zoning law and local bylaws addressing nonconforming structures, a special permit may be required to extend, alter, or change a lawfully existing nonconforming structure.
- The permit standard focuses on whether the proposed change would be substantially more detrimental to the neighborhood than the existing nonconforming structure.
- In a G.L. c. 40A, § 17 appeal, the court considers the validity of the board’s action and will not annul a special-permit decision absent a showing that the board exceeded its authority, committed legal error, or acted arbitrarily or capriciously.
- The party challenging a zoning board decision bears the burden of proof to show that the required permit criteria were not met or that the decision cannot stand under the governing law.
- A board may base a special-permit grant on findings about expected effects on property values, public health and safety, and the ability of neighboring owners to make normal use of their land, and may weigh harms against identified public benefits when the bylaw calls for that type of evaluation.

## Conclusion

The Massachusetts Land Court affirmed the Westwood ZBA’s grant of special permits allowing Belle Soloway to add an apartment for her elderly father to a lawfully nonconforming home, concluding that the abutters did not prove the addition would be substantially more detrimental to the neighborhood than the existing nonconforming structure or otherwise show a basis to overturn the board’s approval under G.L. c. 40A, § 17.


Giurleo v. McCusker, 2010 Mass. LCR LEXIS 44 (2010)