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March 9, 2026 Get Citation Alerts Download PDF Add Note

GUY MADDALONE & Another v. BOARD OF APPEALS OF NANTUCKET & Another.

Massachusetts Appeals Court

• Citations: None known
• Docket Number: 25-P-0170

• Precedential Status: Non-Precedential

• Opinion

• Authorities (9)

• Cited By (0)

• Summaries (0)

• Similar Cases (42.8K)

• PDF

Combined Opinion

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.

1. 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.

1. 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).

1. 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.

1. 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.

1. 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).

1. 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.

19