THOMAS PELLEGRITI v. DARREN BAIRD, BRIAN BEATTIE, and ROMEO MOREIRA as members of the WINTHROP BOARD OF APPEALS

Introduction

This case is plaintiff Thomas Pellegriti’s G.L. c. 40A, § 17 appeal from a decision of the Winthrop Board of Appeals (the “zoning board”) which (1) denied his appeal from the building inspector’s refusal to issue building permits for the construction of two, two-family homes on his property at 40R Banks Street, and (2) denied his application for a variance from the frontage requirement (upon which the building inspector’s refusal was based) and the lot area requirement.

40R Banks Street consists of two lots (C-1 and C-2) as shown on a plan endorsed Approval Not Required by the Winthrop Planning Board (the “planning board”) on September 12, 1988. A copy of that plan is attached as Exhibit A. The lots are both vacant land. Lot C-1 meets the minimum square footage requirement for two-family homes. [Note 1] Lot C-2 falls approximately 179 square feet short. [Note 2] Both are interior lots, surrounded on all sides by residential properties. Neither has frontage on a public or town-approved private way as required by the zoning bylaw. [Note 3] The only access to Lot C-2 is through use of a 29-foot wide, 85-foot long easement from Banks Street. See Exhibit A. Access to Lot C-1 is available only through use of a 24-foot wide, 134-foot long easement over Lot C-2. Id. Mr. Pellegriti contends that the planning board’s ANR endorsement is binding on the building inspector and zoning board with respect to access and frontage issues or, at the least (and coupled with the fact that Lot C-2 is nearly large enough to fulfill the lot size requirement) shows that the denial of his variance application was arbitrary and capricious. The zoning board disagrees.

The case was tried before me, jury-waived. I also took a view. Based upon the parties’ stipulation of facts, my observations at the view, the agreed exhibits, the testimony and additional exhibits admitted into evidence at trial, and my assessment of the credibility, weight and inferences to be drawn from that evidence, I find and rule that the ANR plan is not binding on the ZBA with respect to access and frontage, and that the ZBA’s actions in denying the appeal from the building inspector’s decision and denying the variance were within its allowable discretion.

Facts

The plaintiff, Thomas Pellegriti, is the owner of the property at 40R Banks Street in Winthrop, the characteristics of which are set forth above. It is an entirely interior property, approximately in the center of the block bounded by Banks Street, Main Street, Douglas Street and Morton Street. It has no frontage of its own on any of those streets, and is completely surrounded by fully developed residential lots that do have such frontage.

40R Banks Street was formerly owned by Mr. Pellegriti’s parents, A. Thomas and Nora Pellegriti, who also owned the abutting properties at 40 Banks Street and 51 Douglas Street. 40R, as previously noted, was completely landlocked at that time. 40 Banks Street fronts directly on Banks Street, and 51 Douglas Street fronts directly on Douglas Street. All three lots were subsequently conveyed to the Pellegritis’ nominee trust and remained there, in common ownership, until 1985 when the trust began to sell them off. 40 Banks Street was sold in 1985, with the trust reserving “a perpetual affirmative easement and right of way over and across the above described parcel” for access to the 40R Banks Street property. [Note 4] The easement is twenty-nine feet wide and 84.75 feet long, and is located on the eastern part of the 40 Banks Street lot. See Exhibit A. In 1989, the trust conveyed the 51 Douglas Street property to Brian K. Sullivan and Debra Norton, [Note 5] and on October 14, 2005, conveyed 40R Banks Street to Thomas A. Pellegriti, [Note 6] the plaintiff in this action.

In 1988, some years after 40 Banks Street had been sold, the trust sought an ANR endorsement for a plan showing the division of 40R Banks Street into two lots, with access by easements as shown on Exhibit A. The planning board granted endorsement on September 12, 1988, and the ANR plan thereafter was recorded at the registry of deeds. [Note 7] Exhibit A. Almost immediately thereafter, the trust sought a variance from the zoning board to construct two-family dwellings on the two lots, one on each (the same relief Mr. Pellegriti seeks in this case). The variance was denied for lack of the required lot area (lot C-2) and frontage (both lots) [Note 8] — precisely the same grounds on which relief was denied in this case.

In 1990, undaunted by this earlier failure, the trust again sought a variance from the zoning board, this time to construct a single family home on lot C-2. That application was denied, again for lack of frontage, by decision dated December 17, 1990. [Note 9]

On September 15, 2005, while the property was still owned by his parents’ trust, Mr. Pellegriti applied for building permits to construct a two-unit dwelling on Lot C-1 and a two-unit dwelling on Lot C-2, in essence a revisiting of the trust’s 1988 variance application. [Note 10] The building inspector denied the application that same day, stating that “neither lot has frontage on a town street or way.” [Note 11] On October 5, 2005, Mr. Pellegriti timely appealed the decision of building inspector to the zoning board. [Note 12] In that same appeal, in the alternative, he also sought a variance from the lot size and frontage regulations of the zoning bylaw. [Note 13]

On October 14, 2005, approximately a month after the building permits had been refused and nine days after the appeal and variance application were filed, the trust formally transferred ownership of the 40R Banks Street property to Mr. Pellegriti. [Note 14] The zoning board held public hearings on the appeal and application on November 17, 2005, January 26, 2006, and March 30, 2006. [Note 15] At the hearings, Captain William Hazlett of the Winthrop Fire department testified that there was concern for the fire department’s ability to gain entrance to the back lot (C-2) through the easement and even if they could gain entrance, the ladder trucks would be unable to make the turning radius onto Lot C-1, and there was a concern for life safety. [Note 16] He gave the same testimony at trial, expanding on those concerns and, with reference to the size of the trucks and their turning radiuses, demonstrated exactly how difficult the turns would be and why they would be even more difficult with parked cars on the lots and in winter snow conditions.

By decision dated April 25, 2006, the zoning board denied the requested variance and upheld the decision of the building inspector because the “lots have inadequate frontage,” and the proposed construction “is in contravention of local zoning bylaws,” “derogates from the character of the neighborhood,” “causes risk to public safety and safety hazards,” and “would nullify or substantially derogate from the intent or purpose of the Zoning by-laws.” [Note 17] The board also found that “owing to conditions relating to soil conditions, shape or topography of the lots and especially the lots of the appellant, but not affecting generally the Zoning District in which the lots are located, a literal enforcement of the provisions of the by-laws would not involve a substantial hardship, financial or otherwise, to the appellant and, therefore, appellant is not entitled to variances requested in the application as appellant has failed to satisfy the requirements of G.L. c. 40A, § 10.” [Note 18]

Mr. Pellegriti appealed to this court under G.L. c. 40A, §17, contending that the ANR endorsement of the Planning Board and its subsequent recording is conclusive that 40R Banks Street has the requisite frontage and access, and thus the ZBA should not have denied his appeal from the decision of the building inspector. He further contends that he fully satisfied the requirements for a variance, and that the ZBA’s denial of that variance was arbitrary and capricious. Accordingly, he seeks to have the ZBA’s decision annulled and an order entered directing the issuance of the building permits. [Note 19]

Other pertinent facts are included in the sections below.

The Standard for a G.L. c. 40A, § 17 Appeal

In a G.L. c. 40A, § 17 appeal, the court is required to hear the case de novo, make factual findings, and determine the legal validity of the board’s decision upon those facts. Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478 , 486 (1999) (citing Bicknell Realty Co. v. Bd. of Appeal of Boston, 330 Mass. 676 , 679 (1953)); Josephs v. Bd. of Appeals of Brookline, 362 Mass. 290 , 295 (1972)). In making those findings, “the judge is not allowed to give the board’s findings or decision evidentiary weight.” Josephs, 362 Mass. at 295 (citing Devine v. Zoning Bd. of Appeals of Lynn, 332 Mass. 319 , 321-322 (1955)). Facts may only be based on the evidence heard by the court. Devine, 332 Mass. at 322.

“Even when a zoning board cites no particularized reasons or any specific evidence for its denial decision, its action will be upheld, as will that of a judge affirming that action under G.L. c. 40A, § 17, if a rational basis for the denial exists which is supported by the record. So long as any reason on which the board can fairly be said to have relied has a basis in the trial judge’s findings and is within the standards of the zoning by-law and The Zoning Enabling Act, the board’s action must be sustained regardless of other reasons which the board may have advanced.” Davis v. Zoning Bd. of Canton, 52 Mass. App. Ct. 349 , 356 (2001) (internal quotations and citations omitted). “The decision of the board cannot be disturbed unless it is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary.” Roberts, 429 Mass. at 486 (citations omitted).

In determining whether the decision was “based on a legally untenable ground,” the court must determine whether it was decided

on a standard, criterion, or consideration not permitted by the applicable statutes or by-laws. Here, the approach is deferential only to the extent that the court gives ‘some measure of deference’ to the local board’s interpretation of its own zoning by-law. In the main, though, the court determines the content and meaning of statutes and by-laws and then decides whether the board has chosen from those sources the proper criteria and standards to use in deciding to grant or to deny the variance or special permit application.

Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 73 (2003) (internal citations omitted).

In determining whether the decision was “unreasonable, whimsical, capricious, or arbitrary,” “the question for the court is whether, on the facts the judge has found, any rational board could” come to the same conclusion. Id. at 74. While “it is the board’s evaluation of the seriousness of the problem, not the judge’s, which is controlling,” Barlow v. Planning Bd. of Wayland, 64 Mass. App. Ct. 314 , 321 (2005) (internal quotations and citations omitted), and “a highly deferential bow [is given] to local control over community planning,” Britton, 59 Mass. App. Ct. at 73, deference is not abdication; the board’s judgment must have a sound factual basis. See Britton, 59 Mass. App. Ct. at 74-75 (board’s decision must be supported by a “rational view of the facts”); Mahoney v. Bd. of Appeals of Winchester, 344 Mass. 598 , 600-602 (1962) (board’s determination that proposed use would adversely affect the health and safety of persons living in the neighborhood or be detrimental to the public welfare was not supported by “substantial evidence”, “could not reasonably be found”, and was thus reversed). If the board’s decision fails that test, the court should annul it, see, e.g., Colangelo v. Bd. of Appeals of Lexington, 407 Mass. 242 , 246 (1990); Mahoney, 344 Mass. at 600-602, and may also “make such other decree as justice and equity may require” which, in appropriate circumstances, can include an order for permits to issue. G.L. c. 40A, § 17; see e.g., Petrucci v. Bd. of Appeals of Westwood, 45 Mass. App. Ct. 818 , 827-828 (1998).

Analysis

The ANR Endorsement

Mr. Pellegriti contends that the ANR endorsement granted by the planning board conclusively determined that his planned development of C-1 and C-2 has adequate access and frontage, and thus should be binding on the building inspector and on the ZBA. That contention is wrong.

In granting an ANR endorsement, the planning board makes a determination that the proposed plan does not constitute a subdivision. See G.L. c. 41, § 81L [Note 20] (defining a subdivision); G.L. c. 41, § 81P [Note 21] (providing for ANR endorsement when the planning board determines the submitted plan does not constitute a subdivision, and thus does not require approval). A “subdivision” is a division of land into lots, each of which does not have access via a street or way. See G.L. c. 41, § 81L. To determine that a plan is not a subdivision, and thus eligible for ANR approval, the planning board should consider whether there is adequate access and frontage “of at least such distance as is then required by zoning or other ordinance or by-law, if any, of said city or town for erection of a building on such lot, and if no distance is so required, such frontage shall be of at least twenty feet.” See G.L. c. 41, § 81L.

However, the frontage and access determination by the planning board is only a preliminary step. “The cases are legion which recognize that a Section 81P endorsement of a plan (‘approval not required’) gives a lot shown on that plan no standing under the zoning bylaw.” Arrigo v. Planning Board of Franklin, 12 Mass. App. Ct. 802 , 807 (1981) (emphasis added) citing Smalley v. Planning Board of Harwich, 10 Mass. at 599, 603 (1980). Moreover, “[t]here is no sound reason why the approval of a plan . . . which may be based on nothing more substantial than neglect by a planning board to attend to its duties on time, should preclude a building inspector or board of appeals from performing their statutory duties of requiring adherence to the town’s zoning bylaw, including any provision specifying minimum frontage. . .” Arrigo, 12 Mass. App. Ct. at 807-808 (internal case citations omitted).

Mr. Pellegriti points to the language in G.L. c. 41, § 81P which provides that an ANR endorsement is “conclusive on all persons,” and argues that it reflects the Legislature’s intent to make that endorsement, and all its necessary subsidiary findings, binding on the building inspector and the zoning board. But, despite that language, an ANR plan is not impervious to review. See Lee v. Board of Appeals of Harwich, 11 Mass. App. Ct. 148 , 151-152 (1981)(“We will not lightly assume that the Legislature intended to insulate administrative action, often taken by a single individual, from correction, no matter wrong or arbitrary the action may have been.”). Indeed, when planning boards have wrongly granted ANR endorsements, those endorsements have been subsequently reversed when challenged. See Gifford v. Planning Board of Nantucket, 376 Mass. 801 (1978) (holding that an ANR plan was endorsed when not appropriate, and reversing that approval because a narrow winding road leading to the planned units did not provide adequate access); see also Lee v. Board of Appeals of Harwich, 11 Mass. App. Ct. at 152 (observing that a lot lacking requisite frontage appeared on the same ANR endorsement as the lot at issue).

The building inspector denied Mr. Pellegriti’s application for a building permit, specifically stating that “neither lot has frontage on a town street or way.” Denial of Building Inspector, Sept. 15, 2005. [Note 22] He was not precluded from doing so by the planning board’s prior endorsement of the ANR plan, nor was the zoning board precluded from affirming his denial. Notably, “[a]n endorsement under Section 81P [ANR] does not mean that the lots within the endorsed plan are buildable.” See Stefanick v. Planning Board of Uxbridge, 39 Mass. App. Ct. 418 , 425 (1995) (emphasis added and internal citations omitted); Lee, 11 Mass. App. Ct. at 152. Indeed, even aside from the frontage issue, at least one of the lots, C-2, cannot be used for construction of the sought-after two-family dwelling because it lacks sufficient area. It has only 9,821.5 square feet of land, [Note 23] and the zoning bylaw requires a minimum lot area of 10,000 square feet for a two-family dwelling. [Note 24] Moreover, under the rationale in the Arrigo and Lee cases the building inspector could enforce the bylaw, even with respect to frontage and access, notwithstanding the ANR approval. See Arrigo, 12 Mass. App. Ct. at 807-808; Lee, 11 Mass. App. Ct. at 151-152. [Note 25]

The Zoning Board Acted Within Its Allowable Discretion When It Denied the Appeal from the Building Inspector’s Decision and the Plaintiff’s Variance Application

The zoning board’s decision may be reversed only if “it is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary.” Roberts, 429 Mass. at 486 (citations omitted). As noted above, the board was not bound by the ANR plan on frontage and access issues and was free to examine those questions anew, so long as it acted in accordance with the law in a rational, non-arbitrary manner. Clearly Mr. Pellegriti’s development plans were in violation of the zoning bylaw’s requirements on minimum square footage (Lot C-2) and frontage (both lots). The board correctly refused to overturn the building inspector’s decision on those grounds. The only avenue by which Mr. Pellegriti could obtain the permits he sought was through a variance and, as discussed below, the zoning board acted within its allowable discretion in denying that application. Its judgment that access would be inadequate and, therefore, that the development would be in derogation of the purposes of the zoning bylaw, was rationally based and neither arbitrary nor capricious.

Variances are governed by G.L. c. 40A, § 10, which provides:

The permit granting authority shall have the power… to grant upon appeal or upon petition with respect to particular land or structures a variance from the terms of the applicable zoning ordinance or by-law where such permit granting authority specifically finds that owing to circumstances relating to the soil conditions, shape, or topography of such land or structures and especially affecting such land or structures but not affecting generally the zoning district in which it is located, a literal enforcement of the provisions of the ordinance or by-law would involve substantial hardship, financial or otherwise, to the petitioner or appellant, and 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 such ordinance or by-law.

The Supreme Judicial Court has “repeatedly held that no variance can be granted unless all of the requirements of this statute are met.” Warren v. Zoning Bd. of Appeals of Amherst, 383 Mass. 1 , 9-10 (1981). “[A] failure to establish any one of them is fatal.” Guiragossian v. Bd. of Appeals of Watertown, 21 Mass. App. Ct. 111 , 115 (1985) (citing Blackman v. Bd. of Appeals of Barnstable, 334 Mass. 446 , 450 (1956)). “On appeal to the [Land Court], the judge is required to hear the matter de novo and to determine the legal validity of the board’s decision concerning the variance upon the facts found by the judge.” Guiragossian, 21 Mass. App. Ct. at 114 (citing G.L. c. 40A, § 17; Josephs v. Bd. of Appeals of Brookline, 362 Mass. 290 , 295 (1972); Garvey v. Bd. of Appeals of Amherst, 9 Mass. App. Ct. 856 (1980)). “[T]he burden rests upon the person seeking a variance and the board ordering a variance to produce evidence at the hearing in the [Land Court] that the statutory prerequisites have been met and that the variance is justified.” Dion, 344 Mass. at 555-556 (1962). Although the judge hears the matter de novo, a zoning board decision “cannot be disturbed unless it is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary.’” Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478 , 486 (1999) (quoting MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 639 (1970)).

The zoning board denied the variance chiefly on the ground that to grant it would cause substantial detriment to the public good and either nullify or substantially derogate from the intent or purpose of the zoning by-law. Specifically, they denied it because of safety concerns.The key testimony at trial came from Captain Hazlett of the Winthrop Fire Department, whom I find to be expert in matters of fire and emergency-apparatus access and whose testimony on those issues I credit in full. As previously noted, Lots C-1 and C-2 are interior lots, with no frontage on any public or approved private way. They are separated from the nearest way by fully built-upon residential properties, and they are accessible only by easement. That easement is long, narrow and has a sharp 90º turn. See Exhibit A. The planned two-family dwellings would occupy much of the space on the lots, effectively eliminating any room to maneuver outside the easement. See Exhibit B (development plan).

Banks Street itself is narrow (22 feet wide) and one-way. [Note 26] Cars park along the side closest to 40R, reducing the usable width of the road to 16 feet and even less in winter when cars have difficulty getting close to the curb. [Note 27] There are utility poles and a fire hydrant near the easement entrance. [Note 28] Winthrop’s fire trucks are approximately 42 feet long, with 100 foot ladders. Their “curb to curb” turning area (the space required for the fire truck to make an unobstructed turn) is approximately 37 feet. [Note 29] Their “wall to wall” turning area (the necessary space, in total, from front to back, required for the truck to turn if there are obstructions) is 41 feet and 4 inches. [Note 30] Both are critical. These turning ratios, coupled with the narrowness of the street, the obstructions created by parked cars, the utility pole and the hydrant, and the sharp turn necessary to get onto the easement from Banks Street, would make it extremely difficult for the fire department “to get their apparatus up Banks Street and then to make a right-hand turn onto the easement.” [Note 31] Once on the easement, there are further problems. The individual owner of a private way is responsible for his own snow removal and parking restrictions on the way, not the town. Thus, emergency responders would be at the mercy of the owner of the way, and whether that owner is diligent in plowing snow and enforcing parking restrictions. There is also the turning-area problem of the 90º left turn and the obstructions created by the proposed two-family dwellings and the cars parked alongside them. See Exhibit B. For all of those reasons, Mr. Hazlett testified that gaining access to C-1 and C-2 with emergency fire vehicles would be “extremely difficult.” [Note 32]

Mr. Pellegriti argued that other streets in Winthrop are worse than this, and if the town can deal with them, why not him? But even if access to other properties is compromised, the town is under no obligation to increase the number of its narrow streets and ways and make a bad situation worse. Mr. Pellegriti’s counsel also questioned Chief Hazlett about the possibility of mounting a smaller ladder on the ground if necessary to access the second floor or roof of the proposed two-family units on C-1 and C-2. But it is clear from Mr. Hazlett’s explanation of the limited number of firefighters that there would be insufficient responders to take the ladder off the truck, and mount it on the ground while fighting a fire. [Note 33] Mr. Pellegriti also questioned whether a fence owned by the property behind his could be taken down if the fire department had to access his property. There are two problems with this. First, there was no evidence that the owner of that property, who owns the fence, would consent. Second, the fire department and the zoning board are under no obligation to provide for such an exception to the ordinary access requirement.

In light of the testimony of Mr. Hazlett, which I find both credible and well-founded, I find and rule that the zoning board did not act arbitrarily and capriciously in denying Mr. Pellegriti’s appeal of the decision of the building inspector and did not act arbitrarily and capriciously in denying Mr. Pellegriti’s application for a variance. A rational board could come to the conclusion that the access to Mr. Pellegriti’s proposed residences on C-1 and C-2 was inadequate and unsafe. [Note 34] It is also consistent with the zoning board’s previous decisions about this property. [Note 35]

Conclusion

For the foregoing reasons, the plaintiff’s appeal from the zoning board’s decision is DISMISSED, WITH PREJUDICE. Judgment shall enter accordingly.

SO ORDERED.

Keith C. Long, Justice

Dated: 20 March 2009