BARBARA GOLDMAN and MARK GELFAND, TRUSTEES OF PLAN B REALTY TRUST v. BARBARA SHEFFTZ, KAREN TENENBAUM, WILLIAM MORIARTY, CHRISTOPHER CASEY, and ELIZABETH BURKE-JACOBSON, as they are members of the BOARD OF APPEALS OF THE TOWN OF MARBLEHEAD. DAVID KOH and ELAINE KOH, Intervenors.

In this action, brought pursuant to G. L. c. 40A, § 17, Plaintiffs appeal a decision of the Marblehead Board of Appeals (Board) denying their application for a special permit. Plaintiffs initiated this action on September 25, 2007, by filing a one-count complaint alleging that the Board’s decision was arbitrary, capricious, and legally untenable. On March 19, 2008, a Motion to Intervene was filed by Plaintiffs’ abutters, David Koh and Elaine Koh, and that motion was allowed by the court after hearing.

In the presence of counsel and the parties, this court took a view of Plaintiffs’ and the Kohs’ properties on April 23, 2008, and a one-day trial was held that same day. At trial this court heard the testimony of James Velleco, a registered architect; Plaintiff Barbara Goldman; and Intervenor David Koh. Thirteen exhibits were entered in evidence. [Note 1] All parties filed post-trial briefs in June, 2008.

Based on all the evidence and reasonable inferences drawn therefrom, and observations from the view, this court finds the following material facts:

1. Plaintiffs own property located at 436 Atlantic Avenue in Marblehead (Locus). Locus is located in the Shoreline Single Residence Zoning District (SSR District) as defined by the Marblehead Zoning Bylaw (Bylaw). Locus is improved by a single family dwelling.

2. Intervenors are the beneficial owners of property directly abutting Locus on Atlantic Avenue, although their address is 14 Shuman Road.

3. Locus is a pre-existing nonconforming lot that is long and narrow, containing 21,210 square feet of land with 65 feet of frontage on Atlantic Avenue, a public way. The Bylaw requires 100 feet of frontage in an SSR District. The existing dwelling has a side setback of 11 feet at its closest point to a lot line. The Bylaw requires a side setback of 25 feet in an SSR District.

4. The Bylaw provides that dimensional relief in Marblehead is granted by a special permit (as opposed to a variance) from the Board. Additionally, any expansion of five hundred gross square feet or greater to an existing dwelling in an SSR District, such a Plaintiffs’ proposal, requires a “site plan special permit” (Site Plan) from the Marblehead Planning Board.

5. Site Plan approval was granted by the Planning Board on January 6, 2006, after a duly-noticed public hearing.

6. The special permit at issue represents the second time Plaintiffs sought relief from the Board to alter their house on Locus. On January 10, 2006, the Board held a duly-noticed public hearing on Plaintiffs’ application for a special permit to allow the conversion of an existing garage into living space and the enclosure of existing open porch areas. The application also included plans to build a new two car garage with a second story living area on the Atlantic Avenue side of Locus.

7. Mr. Koh objected to the addition of the new garage stating, among other reasons, that it would eliminate the light to his home. At the continued hearing on February 14, 2006, Plaintiffs amended their application by striking the plans for the new garage structure. As a result, Mr. Koh stated he had no objection to the amended plan, the Board granted the special permit, and Plaintiffs made the proposed changes to their home (First Special Permit).

8. After construction was completed pursuant to the First Special Permit, Plaintiffs decided to add an office over the existing mudroom and a garage which would have a maximum height of six feet, three inches. The proposed addition would have a side setback of 15 feet. The total addition would be an increase of 970 square feet, a 13% increase to the existing house. [Note 2] The proposed addition required both a Site Plan from the Planning Board under Bylaw Section 200-37, and a special permit from the Board under Bylaw Section 200-36. [Note 3]

9. On June 15, 2007, Plaintiffs filed an application for a special permit with the Board (Second Special Permit). A duly-noticed public hearing was held on July 10, 2007, and Mr. Koh again objected to the project as proposed. After hearing, the Board unanimously denied Plaintiffs’ request for relief and filed its decision with the Town Clerk on September 7, 2007. This appeal followed.

10. The proposed addition on Locus would create a walled effect on the side of Locus that faces the Kohs’ house, the impact of which is most experienced by the Kohs. The proximity of Plaintiffs’ and the Kohs’ houses will be a visual barrier to the public viewing the houses from the far side of Atlantic Avenue. The addition would not interfere with the public’s view toward the ocean from the sidewalk adjacent to the parties’ properties, as the hilly topography already blocks the public view of the water from the sidewalk on that side of Atlantic Avenue. 11. Plaintiffs’ proposed addition would have a negative impact on the light entering the kitchen/family room in the Kohs’ house. Where they currently have an obstructed view from their kitchen/family room across Plaintiffs’ property, their view would be entirely blocked by the addition.

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Plaintiffs assert that the Board’s decision should be annulled because the Board failed to give any deference to the Planning Board’s Site Plan approval. Plaintiffs further argue that the Board’s decision should be annulled because Intervenors failed to introduce any evidence that the proposed addition to Locus would interfere with Intervenors’ light, air, or views.

An appeal of a municipal board’s decision on an application for a variance or special permit is heard de novo, with the court considering all evidence pertinent to the authority of the board’s action. Pendergast v. Board of Appeals, 331 Mass. 555 , 558-59 (1954). The judge then makes his or her own findings of fact, independent of any findings of the board. Id. To set aside a local board’s decision, the court must find, based on the evidence, that the board’s 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). If the board’s decision may be upheld for any reason based on the facts found, the court must defer to the board. See Parrish v. Board of Appeal of Sharon, 351 Mass. 561 (1966). Further, inasmuch as no one has a right to a special permit, the reviewing authority has the discretion to deny the application for a special permit, so long as the exercise of that discretion is reasonable. Gulf Oil Corp. v. Board of Appeals, 355 Mass. 275 , 277 (1969). It is Plaintiffs’ burden to substantiate their claim that they are entitled to the special permit and that the Board's denial was arbitrary and capricious. See Planning Bd. of Northborough v. Board of Appeals of Northborough, 356 Mass. 732 , 733 (1969); Schiffone v. Zoning Bd. of Appeals of Walpole, 28 Mass. App. Ct. 981 , 983 (1990).

In the instant case this court has found that Plaintiffs’ proposed addition would interfere with the light and view from Intervenors’ property due to its size and proximity to the Kohs’ house. The addition would create a 93-foot long wall viewed from the Kohs’ property. The wall effect is exacerbated by the height of the structure. In denying the special permit the Board stated, “[t]he proposed second addition and the new second floor on the existing addition will further extend the massing of the house to form a long ‘wall-like’ appearance facing the Koh house . . . . The proposal also results in a ‘railroad car’ effect: the length of the original house, plus existing addition (now raised to a second story), plus a further addition results in an approximately 93-foot ‘wall’ facing the Koh residence, which sits approximately one foot from the side yard. The Board believed that the construction would be detrimental to the neighborhood, and particularly to the Kohs, due to the massing and shadow effect.”

Plaintiffs argue that Locus would be well within the open area ratio requirements of the Bylaw (1.1), even after the construction of the proposed addition. The evidence established that the post-addition open area ratio would be 2.16.1, well within the Bylaw’s requirement. Nonetheless, where Plaintiffs’ lot is long and narrow, and the house is closer to both its side lot lines than what is required by the Bylaw, the Board was well within its reasonable discretion to conclude that the “massing” of the house is out of scale for this location and should not be allowed by special permit.

Where a board exercises its discretion in denying an application for a special permit, the court’s function on appeal is “to ascertain whether the reasons given by the [Board] had a substantial basis in fact, or were, on the contrary, mere pretexts for arbitrary action or veils for reasons not related to the purposes of the zoning law.” Vazza Properties, Inc. v. City Council of Woburn, 1 Mass. App. Ct. 308 , 312 (1973). Plaintiffs point to the Planning Board’s approval of the Site Plan as evidence that the Board acted outside its authority in denying Plaintiffs’ application for a special permit. The fact that the Planning Board reviewed a site plan application and reached a different conclusion does not indicate that the Board acted in an arbitrary or capricious manner or outside its authority. Indeed, where reasonable minds could disagree with respect to an application for a special permit, “the board’s decision [is] not arbitrary and must prevail.” ACW Realty Mgmt., Inc. v. Planning Board of Westfield, 40 Mass. App. Ct. 242 , 247 (1996).

It is not for this court to substitute its opinion regarding Plaintiffs’ project for that of the Board. Under the circumstances presented in this case, and the facts established at trial, this court concludes that the Board acted within its authority under the Zoning Act and the Bylaw.

Judgment to issue accordingly.

Karyn F. Scheier

Chief Justice

Dated: January 6, 2009