HomeMy WebLinkAbout5250 28 Little Dipper Ln Letter of Opposition 19 Attorney Hurrie2
through the Board's abutter notices and when they approached the current resident, Patricia
Muldoon, she referred all inquiries to her son. Despite spending several weeks in the
neighborhood during July and August, the applicant made no effort to contact any abutter
directly. His first offer to "maintain open communication" arrived by letter on August 21st, after
the September 10th hearing date had already been set.
The proposed building is categorically out of scale with every structure on the street, it
eliminates the privacy of immediately abutting neighbors, its design, with 9-foot floor heights
and a widow's walk, reflects a purpose beyond ordinary residential use, and the neighborhood's
own historic deed restrictions, while expired, speak directly to the character the §104.3.2(2)
standard is designed to protect.
I.Zoning Data: Site Plan, July 2026
The site plan submitted by the applicant in July 2026 (Project #25-059) confirms the following
dimensional data, which we submit for the Board’s reference:
Standard Required Existing Proposed (July
2026)
Status
Lot area 25,000 sf 7,893 sf 7,893 sf ● NC
Lot frontage 150 ft 78 ft 78 ft ● NC
Side setback 15 ft 7.4 ft 8.8 ft ↑ ● NC
Front setback 30 ft 32.2 ft 30.2 ft ↓ At limit
Rear setback 20 ft 28.6 ft 24.0 ft ↓ Worsens
Bldg. coverage (no steps) 25% 23.0% 24.5% Near limit
Bldg. coverage (w/ steps) 25% 23.0% 25.4% ↑ ● Exceeds
Total lot coverage 70% 42.3% 51.2% Conforming
Building height 35 ft 16.1 ft 32.36 ft (+3 deck) ● Doubles
Note that building coverage with steps (25.4%) now exceeds the 25% maximum.
This is a new conformance failure should be addressed directly by the Board. A new
nonconformity is direct evidence of intensification under the §104.3.2(2) analysis. M.G.L. ch.
40A, § 17, Shafer v. Zoning Bd. of Appeals, 24 Mass. App. Ct. 966, 511 N.E.2d 635 (1987).
II.The §104.3.2(2) Standard: Neighborhood Character, Not Dimensional Compliance
A. Dimensional Considerations
The applicant has framed this petition as an improvement because the proposed side setback (8.8
ft) is marginally better than the existing (7.4 ft).
That framing is legally insufficient.
The standard under §104.3.2(2) is not “does the proposal improve at least one nonconformity”, it
is “will the project as a whole be substantially more detrimental to the neighborhood.”
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The answer, measured against the character of this neighborhood, is plainly yes.
Under Massachusetts law, pre-existing nonconforming structures or uses may be extended
or altered only upon a finding by the permit granting authority that such change, extension,
or alteration shall not be substantially more detrimental than the existing nonconforming
use to the neighborhood. M.G.L. ch. 40A, § 6. This protection extends to all
nonconforming structures and uses, including the single-family dwelling at issue here. Noll
v. Abington Zoning Bd. of Appeals, 30 LCR 549, 550-551 (2022).
The Board's inquiry must focus on whether the proposed alteration is substantially more
detrimental than the existing nonconforming structure or use to the neighborhood. Willard
v. Board of Appeals, 25 Mass. App. Ct. 15, 20 (1987) (comparison must be to the existing
nonconforming structure, not merely the use).
As the Appeals Court clarified in Willard, the statute requires judicial supplementation to
make the legislative intent operative: the comparison must be between the proposed
alteration and "the existing nonconforming structure or use," not merely the existing use.
Willard at 21. This interpretation ensures that both the physical structure and its intensity
of use are evaluated together. Willard at 21-22.
The proposed structure represents the following increases over the structure it replaces:
• Height: 16.1 ft → 32.36 ft (per July 2026 site plan), plus 3-ft roof deck, an effective
increase of over 100%
• Cubic mass: approximately 25,878 cubic feet → approximately 59,619 cubic feet, an
increase of 130%
• Conditioned living area: 1,128 sf → 3,938 sf, an increase of 249%
• Bathrooms: 1 → 5, a five-fold increase in use intensity indicators
Every other structure on Little Dipper Lane and Briar Circle is a single-story ranch or 1.5-story
Cape Cod home, ranging in height from approximately 13 to 20 feet. The applicant’s own
submitted materials confirm this. A 32-to-35-foot two-and-a-half-story structure with a widow’s
walk is not an improvement on the existing neighborhood, it is a categorical departure from it.
Massachusetts courts have repeatedly recognized that the enlargement of nonconforming
structures is disfavored under G.L. c. 40A, § 6, and that permit applicants bear the burden
of demonstrating lack of substantial increased detriment to the neighborhood. Davis v.
Zoning Bd. of Chatham, 52 Mass. App. Ct. 349, 358 (2021). A zoning board's denial of a
special permit for enlargement of a nonconforming structure is sustainable if supported by
rational grounds, including increased neighborhood detriment, adverse effects on
community resources, and noncompliance with by-law dimensions. Davis at 358.
In the present case, the proposed structure more than doubles the existing height, increases
cubic mass by 130%, and introduces a widow's walk that will overlook the entire
neighborhood. These changes are not minor adjustments within the existing footprint; they
represent a wholesale transformation of the property's impact on the surrounding area.
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B. Parking and Use Intensity
The proposed structure also raises a parking adequacy concern under Zoning Bylaw §301. While
§301.5 requires a minimum of two off-street spaces for a single-family dwelling, §301.2
provides that an existing structure may not be enlarged or altered so as to increase parking
demand without demonstrating maximum feasible compliance with current parking
requirements. The existing two-bedroom ranch generates modest parking demand. The proposed
3,938 sf, 3-bedroom residence with 5 bathrooms that will generate substantially greater demand,
particularly if used as a short-term or seasonal rental property. The Board should require the
applicant to demonstrate that the proposed driveway configuration provides at minimum two
compliant 10 x 20-foot spaces as required by §301.4.2, and should consider the overflow parking
impact on Little Dipper Lane as an additional factor in the §104.3.2(2) neighborhood detriment
analysis. The Board should further note that Little Dipper Lane is a narrow residential way.
Overflow parking on the street is the inevitable consequence of a 3,938 sf, 5-bathroom residence
generating demand beyond what the proposed driveway can accommodate, risks obstructing
emergency vehicle access in violation of 527 CMR, and the Board should require the applicant to
demonstrate that on-street parking generated by the proposed use will not compromise public
safety on this street.
III. Direct Privacy Impacts on Abutting Neighbors
Unlike the existing single-story ranch presently located at the subject property, the proposed two-
story structure with 9-foot floor heights creates significant, direct, and permanent privacy
intrusions on immediately abutting properties that do not exist today. These are not speculative
harms; they are the certain consequence of the proposed massing and window placement.
EAST
As immediate abutters to the east, the Kilmartins at 24 Little Dipper Lane will have their
private rear yard, patio area, and outdoor shower directly overlooked by second-floor
windows on the proposed structure. The existing one-story ranch presents no such intrusion.
The proposed structure's second-floor elevation with 9-foot first-floor ceiling heights placing
second-floor windows well above any fence or landscaping buffer will permanently eliminate
privacy in these outdoor living spaces.
NORTH
As immediate abutters to the north, the Canovas at 56 Little Dipper Lane will have their rear
yard and the rear elevation of their home directly overlooked by second-floor windows and
the roof deck of the proposed structure. Again, the existing one-story ranch creates no
comparable impact. A 32-foot-tall structure sited 8.8 feet from the side lot line on a 78-foot-
wide lot will dominate the northern neighbors’ property in a way the current structure does
not.
Privacy impacts of this nature, the direct, permanent overlooking of neighbors’ yards, outdoor
showers, and rear-of-house living spaces from an elevated second story, are squarely within the
“substantially more detrimental” analysis. The Board should consider not only the dimensional
data but the lived experience of the neighbors who will be most directly affected.
The principle that the Board must consider is "the lived experience of the neighbors who
will be most directly affected" is implicit in Davis, Gordon v. Zoning Bd. of Appeals, 22
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Mass. App. Ct. 343, 494 N.E.2d 14 (1986), Arrigo v. Planning Bd. of Franklin, 12 Mass.
App. Ct. 802, 429 N.E.2d 355 (1981) (enlargement of nonconformities is disfavored and
that adverse effects on neighborhood resources support denial). The privacy impacts here
are precisely such adverse effects.
In determining whether an alteration will intensify existing nonconformities or create new
ones, boards of appeals must identify the particular respects in which the existing structure
does not conform with the by-law and determine whether the proposed alteration or
addition would intensify those nonconformities or result in additional ones. Valentino v.
City of Waltham, 18 LCR 66, 68 (2010), Goldhirsh v. McNear, 32 Mass. App. Ct. 455, 460
(1992). If there will be no intensification or new nonconformity, a special permit may issue
under the "second exception" of G.L. c. 40A, § 6; if not, the applicant must show the
change will not be substantially more detrimental to the neighborhood. Valentino at 68,
Goldhirsh at 460.
Here, the proposed structure does not merely fail to reduce nonconformity: it dramatically
intensifies it by adding a second occupied story with elevated sight lines into neighboring
properties, introducing privacy impacts that the existing single-story structure does not
create.
Photographs and renderings depicting the existing and proposed structure as viewed from
the front of the subject property and abutting properties to the east and north and south are
attached hereto as Exhibits A-D. Note, imposed images are to scale.
IV. Nine-Foot Floor Heights and the Widow’s Walk: Intended Use and Actual Height
The architectural drawings submitted by the applicant specify 9-foot rough-head floor-to-floor
heights on both the first and second floors. The Massachusetts State Building Code (780 CMR)
establishes a minimum habitable ceiling height of 7 feet. Nine-foot ceilings are not a code
requirement; they are a design choice that adds approximately 4 feet of additional height to the
structure beyond what would be necessary to comply with code.
The significance of this choice cannot be overstated in the context of the §104.3.2(2) analysis:
• The July 2026 site plan lists building height as 32.36 ft (per architect plans). Adding the 3-
foot roof deck floor gives an effective height of approximately 35 ft, at the absolute
maximum permitted.
• If standard 7-foot floors were used instead of 9-foot floors, the structure would be
approximately 4 feet shorter, materially reducing both its visual impact and its privacy
intrusion on neighbors.
• The additional floor height serves no code-required purpose. It is an aesthetic and
functional choice that the applicant has made at the direct expense of the neighborhood.
The widow’s walk, as a rooftop observation deck, is the clearest possible statement of the
project’s actual purpose. Little Dipper Lane is located approximately 600 feet from the South
Shore Drive waterfront and Nantucket Sound. A widow’s walk on a 32-plus-foot structure on an
elevated lot is designed to provide an ocean view. That is a legitimate aspiration, but it comes at
a cost: it drives the structure to the top of the permitted height envelope, it places an occupied
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outdoor deck at an elevation that surveys every neighboring property, and it reveals that the
project is designed around the ambition of a premium coastal view property, not around the
modest residential character of the surrounding neighborhood.
The Board may properly consider whether design choices that maximize height beyond code
minimums, for the purpose of obtaining an ocean view, are consistent with the finding that the
replacement will not be substantially more detrimental to the neighborhood.
Massachusetts courts have held that in reviewing a special permit application under M.G.L. c.
40A, § 6, the board must determine whether the proposed changes will intensify the structure's
nonconformity, and the fact that there will be no enlargement of the foundational footprint is but
one factor to be considered. Goldhirsh at 460-461.
Here, the applicant's choice to build to the maximum allowable height with 9-foot floors and a
widow's walk is a deliberate design decision that intensifies the structure's nonconforming
impact on the neighborhood, regardless of footprint.
V. EXPIRED DEED RESTRICTIONS AND THE CHARACTER OF THE
NEIGHBORHOOD
The property at 28 Little Dipper Lane and surrounding lots in the Southside Development at
Parkers Neck were historically subject to deed restrictions, recorded in Barnstable County
Registry of Deeds Deed Book 929, Page 231, that limited the size and character of structures in
the neighborhood.
While we understand that those restrictions may have expired and that it is not the role of this
Board to enforce private deed covenants, their former existence is directly relevant to the
§104.3.2(2) analysis.
The deed restrictions are evidence of the neighborhood character that the original developers of
this subdivision intended to establish and preserve: modest, single-story residential structures
consistent with the Cape Cod and South Yarmouth coastal neighborhood context. The fact that
every existing home on the street, long after those restrictions may have expired, remains 1 story
ranch or 1.5-story Cape is the strongest possible evidence that this neighborhood character has
been maintained voluntarily and organically, not merely by legal compulsion.
The §104.3.2(2) standard directs the Board to assess whether the proposed project will be
substantially more detrimental to the neighborhood, the Little Dipper Lane neighborhood that
actually exists, as it actually looks, with the character it has actually maintained over decades.
That neighborhood is a street of one-story and 1.5-story homes. The proposed 2.5-story structure
with a widow’s walk is not consistent with that character, regardless of whether any private
covenant now compels consistency.
In Davis v. Zoning Bd. of Chatham, the Appeals Court affirmed a zoning board's denial of a
special permit for enlargement of a nonconforming structure where the proposed changes would
increase detriment to neighborhood resources and violated dimensional and conservation
requirements. Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349, 357 (2021). The court
emphasized that enlargement of a nonconformity is disfavored under G.L. c. 40A, § 6, and that
permit applicants bear the burden of demonstrating lack of substantial increased detriment. Davis
at 357. Similarly, in Shirley Wayside Ltd. P'ship v. Bd. of Appeals, the Supreme Judicial Court
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held that a zoning board may deny expansion of a preexisting nonconforming use if there is
credible evidence that the expansion would be substantially more detrimental to the
neighborhood than the existing nonconforming use. Shirley Wayside Ltd. P'ship v. Bd. of
Appeals, 461 Mass. 469, 470-471 (2021).
Here, the credible evidence is overwhelming: a street composed entirely of single-story and 1.5-
story homes, a historic development pattern reinforced by deed restrictions for decades, and a
proposed structure that is more than twice the height of any existing home on the street.
VI. Flood Zone Considerations
We note that the updated site plan for the proposed dwelling (July 2026) indicates that the
property is located in Flood Hazard Zone AE (EL. 11) per FEMA Flood Map Panel
25001C0589J, effective July 16, 2014, and that the property is located entirely within a Special
Flood Hazard Area. The RDA narrative submitted to the Conservation Commission
acknowledges this designation.
The applicant’s narrative asserts that the proposed reconstructed house will be built in
compliance with FEMA requirements and will represent a substantial improvement over the
existing dwelling. We do not dispute that a new structure may be required to meet current flood
standards.
A structure may be FEMA-compliant and still be substantially more detrimental to the
neighborhood under §104.3.2(2). Flood zone compliance is a necessary condition for permitting,
not sufficient justification for the proposed scale.
While flood compliance may necessitate elevation of the first floor, it does not compel 9-foot
ceilings, a second occupied story, or a rooftop deck—all of which are design choices that drive
the structure to maximum allowable height and create the privacy and scale impacts at issue.
VII. The Variance Standard: §203.5
In addition to the Special Permit under §104.3.2(2), the applicant seeks a Variance under
Yarmouth Zoning Bylaw §203.5.
Effective July 1, 2026, the Massachusetts Legislature substantially revised the variance standard
under M.G.L. c. 40A, §10.
The applicant cannot satisfy the amended requirements.
Under the current statute, the Board may grant a variance only if it "specifically finds that a strict
enforcement of the ordinance or by-law would result in a practical difficulty." M.G.L. ch. 40A, §
10. In making that determination, the Board must "weigh the benefits to the appellant or
petitioner and to the public interest, including the interest in supporting the production of
housing against the detriment to the public health, safety and welfare of the neighborhood." Id.
The statute permits, but does not require, the Board to consider:
• Whether the practical difficulty relates to soil conditions, shape, or topography of the
land or structures;
• Whether strict enforcement would impose a financial hardship on the applicant;
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• Whether the benefit sought can be achieved by some other method feasible for the
applicant; and
• Whether the practical difficulty was self-created.
The Board must also find that "desirable relief may be granted without substantial detriment to
the public good and without nullifying or substantially derogating from the intent or purpose" of
the bylaw. M.G.L. ch. 40A, § 10.
A. The Balancing Test Weighs Against the Applicant
The Board's central task is to balance the benefit to the applicant and the public interest in
housing production against the detriment to neighborhood health, safety, and welfare. Here, that
balance weighs decisively against granting the variance:
1. Benefit to Applicant
The applicant seeks to replace a 1,128 sf single-story ranch with a 3,938 sf, 32-foot-tall structure
featuring 9-foot floor heights and a rooftop widow's walk designed to capture ocean views from
a lot located 600 feet from Nantucket Sound. The benefit is primarily private: a substantially
larger, more valuable residence on a premium coastal lot.
2. Public Interest in Housing Production
The proposal does not increase the housing supply. It replaces one single-family dwelling with
another single-family dwelling. There is no density increase, no accessory dwelling unit, and no
contribution to regional housing goals. The statute's inclusion of housing production as a public
benefit is inapplicable here.
3. Detriment to Neighborhood Health, Safety, and Welfare
The proposed structure will:
• Exceed building coverage limits (25.4% with steps vs. 25% maximum), introducing a
new dimensional nonconformity;
• More than double the existing building height (16.1 ft → 32.36 ft, plus 3-foot roof deck);
• Increase cubic mass by approximately 130% and conditioned living area by 249%;
• Directly overlook the private rear yards, patios, and outdoor showers of abutting
properties at 24 and 56 Little Dipper Lane from second-floor windows and the roof deck,
eliminating privacy that the existing single-story structure does not compromise;
• Introduce a structure categorically inconsistent with the neighborhood's established
character, which consists entirely of single-story ranches and 1.5-story Cape Cod homes
ranging in height from approximately 13 to 20 feet.
The detriment is substantial, permanent, and borne directly by immediate abutters and the
broader neighborhood.
B. The Optional Considerations Do Not Support Relief
1. Self-Created Difficulty
The applicant's difficulty arises not from any unique characteristic of the land, but from the
decision to design a 3,938 sf residence with 9-foot floor heights and a widow's walk on a 7,893
sf nonconforming lot. Massachusetts State Building Code requires only 7-foot habitable ceiling
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heights. The choice to add approximately 4 feet of height beyond code minimums is voluntary
and aesthetic, not compelled by lot conditions. The practical difficulty, to the extent one exists, is
self-created.
2. Soil, Shape, or Topography
The nonconformities affecting 28 Little Dipper Lane: undersized lot area (7,893 sf vs. 25,000 sf
required) and deficient frontage (78 ft vs. 150 ft required), are characteristic of the entire Little
Dipper neighborhood, not unique to this parcel. A condition shared by the neighborhood
generally does not constitute the type of site-specific difficulty contemplated by the statute.
While the amended §10 no longer requires soil, shape, or topography as a mandatory threshold
showing, the absence of any such unique condition remains probative of whether strict
enforcement creates a genuine practical difficulty as opposed to an ordinary limitation applicable
to similarly situated properties.
3. Financial Hardship
The applicant has not demonstrated that strict enforcement of dimensional limits would impose
financial hardship. The lot is capable of supporting a conforming or less-nonconforming single-
family residence; the applicant simply seeks to maximize size and height beyond what the bylaw
permits.
4. Alternative Methods
The applicant could achieve reasonable residential use of the property by constructing a structure
consistent with neighborhood scale: a single-story or 1.5-story dwelling with standard ceiling
heights, no widow's walk, and reduced mass, thereby avoiding or minimizing dimensional
nonconformities and privacy impacts on abutters.
C. The Proposed Relief Would Derogate from the Intent of the Bylaw
Even under the amended standard, the Board must find that relief may be granted "without
nullifying or substantially derogating from the intent or purpose" of the bylaw. M.G.L. ch. 40A,
§ 10. The R-25 district's dimensional requirements: minimum lot size, frontage, setbacks,
maximum height, and coverage limits, exist to maintain neighborhood scale, preserve privacy,
and ensure orderly development consistent with Cape Cod residential character.
A variance permitting a 32-foot structure with a rooftop deck on a 7,893 sf lot, exceeding
building coverage limits, and creating direct sight lines into neighboring private outdoor spaces
does not merely accommodate a practical difficulty, it effectively nullifies the protective
purposes of those standards for this parcel.
Granting such relief would set a precedent inconsistent with the bylaw's intent and invite similar
oversized development on other small lots in the subdivision.
D. The Board Should Deny the Variance
The balancing test mandated by the amended M.G.L. c. 40A, §10 does not support the requested
variance.
The applicant seeks private benefit at substantial cost to neighborhood welfare, proposes no
increase in housing supply, has created the dimensional difficulty through voluntary design
choices, and can achieve reasonable residential use through a design consistent with
neighborhood character.
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The burden rests with the applicant, and it has not been met.
IX. Conclusion
The proposed structure: at 32 to 35 feet in height, 3,938 square feet of conditioned space, 130%
greater cubic mass than the structure it replaces, with 9-foot floors, a widow’s walk, and second-
floor windows that directly overlook the private yards and outdoor spaces of abutting neighbors
is substantially more detrimental to the neighborhood than the existing nonconforming ranch
home.
The entire street is composed of modest single-story and 1.5-story structures. The proposed
project is not an improvement on the existing nonconformity: it transforms a modestly
nonconforming lot into the site of the largest, tallest, and most imposing structure in the
neighborhood.
Under G.L. c. 40A, §6, an owner of a single- or two-family residential structure with a legally
preexisting nonconformity who proposes a modification increasing the nonconformity must
obtain a finding that the change is not substantially more detrimental to the neighborhood.
Bellalta v. Zoning Board of Appeals of Brookline, 481 Mass. 372, 377–378 (2019).
The applicant has not and cannot meet that burden under §104.3.2(2). Independently, the
applicant cannot satisfy the three-part variance test under M.G.L. c. 40A, §10 and §203.5.
The application satisfies neither the special permit nor the variance standard and as such, should
be denied.
Respectfully submitted,
Terrence J. Hurrie, Esq.
cc: Clients
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Exhibit A
Existing and Proposed
View from Front of Subject Property
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Exhibit B
Existing and Proposed
View from Spellman Residence 32 Little Dipper Lane/Western Property Line
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Exhibit C
Existing and Proposed
View from Canova Residence at 56 Little Dipper Lane/ Southern Property Line
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Exhibit D
Existing and Proposed View from Kilmartin Residence at 24 Little Dipper Lane/Eastern Property Line