By decision dated December 7, 2006 (the 2006 Variance Decision), defendant Rockport Board of Appeals (the board) denied plaintiff Frank Scallis application for a variance from the towns frontage requirements to construct a single family home on his vacant lot of registered land on Ocean View Drive (Lot 2). [Note 1] This case is Mr. Scallis G.L. c. 40A, § 17 appeal from that decision, and presents a single material issue. Was the boards denial based on permissible criteria, rationally applied, or were the reasons given by the board, in actual fact, a pretext for a decision based on legally untenable considerations? Simply stated, was the boards decision truly based on a good faith judgment that the conditions for issuance of a variance are not met in this case [Note 2] (a conclusion directly contrary to its decision, reached on identical facts, just two years earlier; [Note 3] inconsistent with its grant of a frontage variance to the directly abutting lot in 1992; [Note 4] and inconsistent with the planning boards ANR endorsements in 1960 [Note 5] and 1972 [Note 6]), or was it actually based on Mr. Scallis refusal to grant the town an easement across his property? [Note 7]
The matter was tried before me on a case stated basis. As more fully set forth below, based upon the parties stipulation of facts, the agreed exhibits, documents of record of which I may take judicial notice, [Note 8] and the inferences I draw from that evidence, [Note 9] I find and rule that the board based its denial on legally untenable grounds (Mr. Scallis refusal to recognize or grant the easement) and acted arbitrarily and capriciously in doing so. I further find that Mr. Scalli fully satisfied the requirements for a variance and that no reasonable board, acting in good faith consistently with its past rulings on an adjoining lot and this very same lot, [Note 10] would deny a variance in the circumstances presented in this case. Accordingly, the 2006 Variance Decision is ANNULLED and VACATED, and the case is remanded to the board with instructions that the variance promptly be issued. [Note 11]
Lot 2 (the property at issue in this case) was once part of a larger parcel owned by Ms. Elsie Newcomb. [Note 12] In 1960, Ms. Newcomb divided that parcel into two lots, then called Parcels 1 and 2 and later, after correction of subsequently-discovered minor dimensional errors, Lots 1 and 2. [Note 13] She submitted a plan showing that division to the Rockport Planning Board and, on December 1, 1960, received the planning boards ANR endorsement of the plan (G.L. c. 41, § 81P) which she duly recorded at the registry of deeds (the 1960 ANR plan). [Note 14] The 1960 ANR plan shows a twenty-foot wide private right of way extending straight eastward from Pigeon Hill Court (a public road) to Parcel 1, widening to over fifty feet at its turn to the south at Parcel 1s border, and then, over 37 feet wide, proceeding south in a straight line to Parcel 2. [Note 15] The record does not explicitly state when the way first existed, but the planning boards endorsement of the 1960 ANR plan (and its later endorsement of the 1972 ANR plan, discussed more fully below) indicate that the way predates July 14, 1951 (the date Rockport adopted the subdivision control law) [Note 16] and, in that boards opinion, was of sufficient width, suitable grades and adequate construction to provide for the needs of vehicular traffic in relation to the proposed use of the land abutting thereon or served thereby [a single family home on Lot 1 and a single family home on Lot 2] and for the installation of municipal services to serve such land and the buildings erected or to be erected thereon. [Note 17] St. 1956, c. 282 (G.L. c. 41, § 81L in the form in effect in 1960). The way later became known as Ocean View Drive, [Note 18] and both Lot 1 and Lot 2 have full deeded rights to use it. [Note 19]
Lot 2s frontage on Ocean View Drive, which now dead-ends at Lot 2s northern boundary, is 37.76 feet. [Note 20] Lot 1s frontage on Ocean View Drive at the boundary of that lot is 20.71 feet. [Note 21] The bylaw in effect at the time the lots were created did not have any requirement for minimum lot frontage. [Note 22] Thus, the twenty-foot minimum in G.L. c. 41, § 81L applied to ANR endorsements, and both Lots 1 and 2 complied with that requirement.
One month after recording the 1960 ANR plan, Ms. Newcomb sold Lot 1 to Robert and Nancy Howatt and Lot 2 to Edward and Carol Newcomb. [Note 23] In 1971, those parties submitted another ANR plan to the planning board to correct minor dimensional errors in the 1960 ANR plan, which the planning board endorsed on July 27, 1972 (the 1971 ANR plan). [Note 24] By that time, the bylaw required a minimum lot frontage of 75 feet. [Note 25]
In 1973, the Howatts petitioned the Land Court for registration of Lot 1, the Newcombs petitioned for registration of Lot 2, and judgments of registration were entered on February 9, 1983. [Note 26] A copy of Lot 2s registration plan, showing both the lot and its access easement over Ocean View Drive, is attached to this Decision as Exhibit A. [Note 27] Lot 2 has the benefit of an appurtenant right to use Ocean View Drive, but is not burdened with an easement of any kind. [Note 28]
The record does not reflect when Mr. Scalli acquired Lot 1, but in 1992 the board granted him a variance to construct a 2 ½ -story dwelling on that property. [Note 29] That variance was necessary for the same reason as the one currently at issue for Lot 2 Lot 1 complied with all applicable zoning requirements except for minimum frontage. [Note 30] As previously mentioned, Lot 1 has no frontage on a public way, only 20.71 feet of frontage at its boundary on Ocean View Drive (a private way) and, by 1992, the bylaw for that district (then, Residential A) required a minimum of 75 feet. [Note 31] The 1992 Variance Decision is important not only for the fact that the frontage variance was granted, but also for three of the boards subsidiary findings: first, that access to Lot 1 was over Ocean View Drive (described as a private way from Pigeon Hill Court), second, its acknowledgement that the Planning Board appears to have approved both segments of the way as access for at least one other lot (a reference to Lot 2 and the 1960 and 1971 ANR plans), and third, that, despite the boards current argument that Ocean View Drive is not a way or street within the meaning of the bylaw for purposes of frontage, [Note 32] its finding in 1992 that the actual access given by Ocean View Drive fully justified the granting of a variance from the bylaws frontage requirements. [Note 33]
In 2004, Ms. Blair Newcomb was the owner of Lot 2 and Mr. Scalli its prospective purchaser. Having previously been successful with his variance application for Lot 1, Mr. Scalli now applied to the board for a variance to construct a single-family dwelling on Lot 2. The condition requiring the variance in both cases was the same the lots lack of frontage [Note 34] and now the lack was even greater; between 1992 and 2004 the required minimum amount of frontage increased from 75 feet to 150 feet. [Note 35] However, after a detailed analysis of the length and dimensions of Ocean View Drive and a detailed analysis of the lot itself, the board granted the variance for Lot 2 (the lot at issue in this case), making explicit findings that all conditions for issuance of a variance were met, [Note 36] all bylaw requirements other than frontage [were] easily met, and access is adequate as an appropriate driveway can extend Ocean View Drive. 2004 Variance Decision at 1-2 (emphasis added). But the board also added a condition to the variance. According to the board, a very old, well-worn path has been used for many years to access the quarry area from the pubic parking on Town-owned land at the water tower, and [t]estimony at [the] hearing indicated such long, continuous, unobstructed public use of the trail as to leave little doubt that prescriptive rights have been acquired. 2004 Variance Decision at 1. The board thus required that the proposed house be sited in a location that would not interfere with this trail. Id. at 2.
Mr. Scalli and Ms. Newcomb appealed the 2004 Variance Decision to the Land Court, challenging the condition which required that the purported trail be preserved. See Case Management Conference Joint Statement at 3; Frank J. Scalli, Jr. and Blair Deborah Newcomb v. Town of Rockport Zoning Board of Appeals, Miscellaneous Case No. 304199 (CWT). By joint motion of the parties, that case was remanded to the board so that the board may reconsider the conditions on the variance Remand Order (Sept. 15, 2005) (Trombly, J.). There is nothing on file in either this case (Misc. 335745-KCL) or the remanded case (Misc. 304199-CWT) to indicate what, if anything, happened on remand. Instead, on October 5, 2006, Mr. Scalli (who by then had purchased Lot 2 from Ms. Newcomb) [Note 37] filed a new variance application with the board and, in connection with that application, made clear his contention that, as the property was registered land, there was no easement across Lot 2, prescriptive or otherwise, on which the board could insist. [Note 38] The board disagreed and denied the variance outright. [Note 39] After stating that Mr. Scalli had not shown the trail on his plans submitted to this Board, and it appears that petitioners siting of the proposed residence would interfere with the trail, the board found, directly contrary to its findings in the 2004 Variance Decision, that:
[T]he conditions for issuance of a variance are not met in this case. Although the lot is large and is an attractive location for a dwelling, there is no hardship that would justify a dimensional variance. There are many lots throughout Rockport that are accessed only by trails or private ways. The Bylaw requires frontage so that our community does not become a maze of paths and ways as development pushes deeper into the woodlands. This trend has intensified over the last few years driven by rising property values. An approval in this instance would set an unfavorable precedent within the zoning district and the community.
2006 Variance Decision at 1-2. Mr. Scalli timely appealed that denial to this court.
Other pertinent facts are included 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 boards decision in light of 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 boards 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 (judge may not adopt findings not supported by the evidence heard by him and only appearing in the written decision of the board). The boards decision is competent evidence only to the extent to enable the judge to ascertain what conclusion the board reached in order to determine whether upon the facts found by him the decision of the board should stand or should be annulled or should be modified. Bicknell Realty Co., 330 Mass. at 679; see also Building Inspector of Chatham v. Kendrick, 17 Mass. App. Ct. 928 , 931 (1983). Other board decisions are competent evidence to the same extent to show what conclusions were reached on those occasions (which, in the case of grants, may have substantive effect) and the reasons that were formally stated for those conclusions. Building Inspector of Chatham, 17 Mass. App. Ct. at 931. [Note 40] This can be particularly important where, as here, the issue is pretext, the court finds that the facts relevant to the decisions being examined are identical, the decisions repeatedly come out one way (affirmative grants) when the boards apply permissible criteria, and only come out the other (a denial) when the board considers an impermissible factor.
The courts function on appeal, based on the facts it has found de novo, 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). If the boards decision is found to be arbitrary, capricious, or based solely on impermissible factors, the court should annul the decision. See, e.g., Colangelo v. Bd. of Appeals of Lexington, 407 Mass. 242 , 246 (1990); Mahoney v. Bd. of Appeals of Winchester, 344 Mass. 598 , 601-02 (1962); DiGiovanni v. Bd. of Appeals of Rockport, 19 Mass. App. Ct. 339 , 349 (1985) (denial of variance is in excess of boards authority only when the variance has been denied solely on a legally untenable ground or when the decision is unreasonable, whimsical, capricious, or arbitrary.) (emphasis in original; internal citations omitted). Under those circumstances, the court may also make such other decree as justice and equity may require, which may include ordering permits to issue if all the requisites of such a permit have been met. G.L. c. 40A, § 17; see e.g., Petrucci v. Bd. of Appeals of Westwood, 45 Mass. App. Ct. 818 , 828 (1998).
Lot 2 Fully Satisfied All Requirements for the Granting of a Variance and No Rational Board, Acting Consistently With Its Past Rulings, Could Find Otherwise; The Boards Denial Was Based Solely on an Impermissible Criterion and the Reasons It Gave in Purported Support of Its Decision Were Pretextual
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.
There are thus four prerequisites to the granting of a variance for a parcel of land, each of which must be satisfied for the grant to be valid: (1) circumstances relating to the soil conditions, shape or topography of the land which especially affect the parcel in question but do not affect generally the zoning district in which it is located, (2) a substantial hardship, financial or otherwise, that would result from a literal enforcement of the zoning bylaws, and (3) relief that can be granted without substantial detriment to the public good, and (4) without nullifying or substantially derogating from the intent or purpose of the bylaw. G.L. c. 40A, § 10; Warren v. Zoning Bd. of Appeals of Amherst, 383 Mass. 1 , 9-10 (1981).
The board did not dispute that Lot 2 meets the first criteria. [Note 41] Indeed, in its 2004 Variance Decision it specifically found that this criterion (and every other necessary criterion) had been fully met. [Note 42] The lot is shaped differently than any of its neighboring lots. [Note 43] It is on a hillside, sloping approximately 50 feet from east to west and, in the boards view, is in an attractive location for a dwelling. [Note 44] I concur with the boards 2004 Variance Decision that all this makes the lot sufficiently unusual to qualify for a variance. [Note 45]
The board contends that the denial of a variance would not create a hardship. [Note 46] But this is directly contrary to the conclusion it reached on identical facts in its 2004 Variance Decision, [Note 47] and is clearly incorrect. Lot 2 requires a variance for one reason only; it lacks the minimum required frontage on a street or way. So far as the record shows, the roadway easement that provides access to Lot 2 (Ocean View Drive) has been in existence for over fifty-seven years. [Note 48] It is straight and twenty-feet wide from Pigeon Hill Court until it reaches the border of Lot 1, widens to over fifty feet at its turn south towards Lot 2, and is straight and never less than 37.76 feet wide as it proceeds to its end at the boundary of Lot 2. See Exhibit A (Land Court Plan 38131A). There is nothing in the record to indicate that it cannot easily accommodate emergency vehicles or, for that matter, any vehicle traveling to or from the two lots (Lot 1 and Lot 2) it serves. Indeed, the planning boards 1960 and 1971 ANR endorsements explicitly reflect the towns own judgment that the way is of sufficient width, suitable grades and adequate construction to provide for the needs of vehicular traffic in relation to the proposed use of the land abutting thereon or served thereby [a single family home on Lot 1 and a single family home on Lot 2], and for the installation of municipal services to serve such land and the buildings erected or to be erected thereon. St. 1956, c. 282 (G.L. c. 41, § 81L in the form in effect in 1960). [Note 49] Based on my review of the evidence, I completely concur and so find. The hardship is thus readily apparent the inability to build on an admittedly attractive lot, [Note 50] created and ANR-endorsed over forty-eight years ago, that fulfills every zoning requirement save that of frontage, whose single-family house will have no discernible effect on density, [Note 51] and whose right of way is more than sufficiently wide, suitably graded, and adequately laid out for access to that house. Indeed, the access provided by that roadway has been deemed to justify a dimensional variance by this very board on two prior occasions. [Note 52] The board argues that Mr. Scalli cannot show he would suffer hardship because he knew the property lacked adequate frontage when he purchased it, and thus had no expectation that he could build a residence on Lot 2. But that is not correct. Mr. Scalli had a reasonable expectation he could do so because a variance was granted for that very purpose in 2004, before he purchased the property (in 2006). If not for the Boards improper condition about the trail, a residence could have been constructed at that time.
The boards chief reason for denying the variance in 2006 (the decision at issue in this case) was its stated conclusion that approving a variance in this instance would set an unfavorable precedent, leading to a maze of paths and ways as development pushes deeper into the woodlands. 2006 Variance Decision at 2 (emphasis added). This presumably relates to criteria (3) and (4) substantial detriment to the public good or nullifying or substantially derogating from the intent or purpose of the bylaw. But it is clearly pretextual. The board itself admitted that there are many lots throughout Rockport that are accessed only by trails or private ways. 2006 Variance Decision at 2. Thus, a variance in this instance would not set any new precedent. [Note 53] More importantly, this ruling ignores the characteristics of the way in question (relatively short, well designed, and serving only two residences, both on large lots), its long-standing existence, and the adequacy of the access it provides, and is directly contrary to the two prior variance decisions (1992 and 2004), both of which found that frontage variances for the lots on the way were justified and desirable. Thus, all that is occurring in this instance is the addition of one single-family home to an already-existing, long-established private road whose adequacy and justification for frontage variances has repeatedly been reviewed and approved in the past. This is surely a unique situation, and cannot rationally be seen as creating the precedent which the board purports to fear. In these circumstances, the construction of a single family home on this large lot will not cause any detriment to the public good, and the intent or purpose of the frontage requirement in the bylaw (access and density) will not be nullified or derogated to a substantial degree.
What most reveals the pretextual nature of the variance denial is a simple comparison of the 2004 and 2006 variance decisions, both made on an identical facts (the same lot, with the same access and frontage). The 2004 decision granted the variance conditioned on the plaintiffs recognition and accommodation of the so-called prescriptive easement across the plaintiffs land. The 2006 decision denied the variance after the plaintiff made clear that he would not agree to the easements imposition. The only difference between 2004 and 2006 was the boards discovery that it could not insist on a public easement across Lot 2 a reason not related to the purposes of the zoning act, Vazza, 1 Mass. App. Ct. at 312, and thus not permissible as a basis for denial.
ANR Zoning Freeze as to Frontage
Since I have already determined that the board acted arbitrarily and capriciously in denying the variance and, further, that Mr. Scalli fully satisfied the requirements for a variance, I do not need to address the plaintiffs argument that Lot 2 is subject to a zoning freeze as to the frontage requirement. However, briefly, that argument is without merit. Lot 2 is not protected by a zoning freeze as a result of the ANR plans endorsed in 1960 and in 1972. The ordinary duration for an unconditional zoning freeze, resulting from an ANR endorsement, is three years. See G.L. c. 40A, § 6, ¶ 6. [Note 54] That does not protect Lot 2, because it could only freeze the 1972 bylaw requirement of 75 feet of minimum frontage until 1975 (and the 1960 Bylaws requirement until 1965), and Lot 2 only has 36.67 feet of frontage. Paragraph 4 of G.L. c. 40A, § 6 enumerates more lengthy zoning freezes based on ANR endorsements or recordings (whichever came first), as applied to construction of single-family and two-family residences. If the adjoining lots were not held in common ownership, the zoning freeze lasts for five years, provided the lot conformed to then existing requirements and had less than the proposed requirement but at least five thousand square feet of area and fifty feet of frontage. G.L. c. 40A, § 6, ¶ 4 (emphasis added). Lot 2 has less than 50 feet of frontage, and thus does not qualify under that provision. If adjoining lots were held in common ownership, the zoning freeze lasts for five years, provided the lot conformed to the existing zoning requirements as of January first, nineteen hundred and seventy-six, and had less area, frontage, width, yard or depth requirements than the newly effective zoning requirements but contained at least seven thousand five hundred square feet of area and seventy-five feet of frontage . . . G.L. c. 40A, § 6, ¶ 4 (emphasis added). Lot 2 does not qualify under that provision either, again because it lacks the requisite frontage. Additionally, both of the above provisions only freeze certain zoning requirements for five years, and thus neither the 1960 ANR endorsement nor the 1972 endorsement would exempt Lot 2 from the minimum frontage requirements in the Bylaw in 2006. Thus, Mr. Scallis argument, that Lot 2 is grand-fathered under prior zoning requirements, fails.
For the foregoing reasons, I find and rule that the board acted arbitrarily, capriciously and on a legally untenable basis in denying Mr. Scallis 2006 application for a variance for Lot 2 and, further, I also find and rule that Mr. Scalli fully satisfied the requirements for a variance. Accordingly, the boards decision is hereby ANNULLED and VACATED, and the case is remanded with instructions that the variance promptly be issued. [Note 55] I leave it to the boards discretion, however, to determine whether (and to what extent) the easement should be improved (i.e. graveled or paved, and to what widths) to ensure sufficient emergency and other access to the single family home plaintiff proposes to build, and to condition the variance on such improvement. Judgment shall enter accordingly.
Keith C. Long, Justice
Dated: 4 June 2009
[Note 1] The proposed home would be fully compliant with all other requirements of the towns zoning bylaw. 2006 Variance Decision at 1.
[Note 2] 2006 Variance Decision at 2.
[Note 3] Board of Appeals Decision No. 040803 (Nov. 15, 2004) (the 2004 Variance Decision).
[Note 4] Board of Appeals Decision No. 911102 (Jan. 28, 1992) (the 1992 Variance Decision).
[Note 5] Rockport Planning Board, endorsement of approval under subdivision control law not required (Dec. 1, 1960) (1960 ANR endorsement) (Ex. 4); Statement of Agreed Facts (May 16, 2008) (Agreed Facts), ¶ 20.
[Note 6] Rockport Planning Board, endorsement of approval under subdivision control law not required (Jul. 27, 1972) (1972 ANR endorsement) (Ex. 7); Agreed Facts, ¶ 26.
[Note 7] The board contends that a prescriptive easement crosses the plaintiffs property (Lot 2), allowing access from town land on Lot 2s eastern boundary to other town land to the west of Lot 2. 2006 Decision at 1; 2004 Decision at 1. There appears to be no legal basis for such a claim. No such easement is reflected on the plaintiffs certificate of title for Lot 2 (Certificate No. 79273, Essex (South) Registry of Deeds), on any of the propertys prior certificates of title (see, e.g., Complaint, Ex. 2 the original certificate of title) or on the Land Court plan (Land Court Plan 38131A, a copy of which is attached to this decision as Exhibit A), and adverse use cannot create prescriptive rights on registered land. G.L. c. 185. § 53; Commonwealth Electric Co. v. MacCardell, 450 Mass. 48 , 53-54 (2007). Both the town and all of Lot 2s abutters were properly served with notice of the registration proceedings, and none asserted any easement rights, prescriptive or otherwise, at any point during those proceedings. Land Court Registration Case No. 38131 (Judgment entered Feb. 9, 1983).
[Note 8] Land Court Plan 41024A (on permanent file at the Land Court), Land Court Plan 38131A (on permanent file at the Land Court and attached to the Complaint as Ex. 3), the 2004 Variance Decision (attached to the Complaint as Ex. 4), the 1992 Variance Decision (attached to the Complaint in Scalli v. Rockport Board of Appeals, Land Court Misc. Case No. 304199 (Dec. 3, 2004) and included in the Appendix to the plaintiffs reply brief in this case), Lot 2s original Certificate of Title (attached to the Complaint as Ex. 2) and the plaintiffs Certificate of Title (Certificate No. 79273, Essex (South) Registry of Deeds, Jan. 27, 2006).
[Note 9] See Town of Ware v. Town of Hardwick, 67 Mass. App. Ct. 325 , 326 (2006) citing Nolan & Henry, Civil Practice § 33.7 (3d ed. 2004) ("It is now provided that upon a case stated by agreement of the parties for the decision of the court in any action, any court before which the case may come, either in the first instance or upon review, is at liberty to draw from the facts and documents stated in the case any inferences of fact which might have been drawn therefrom at a trial, unless the parties expressly agree that no inferences shall be drawn"). The parties in this case agreed that the case would be tried on a case stated basis, with the court allowed to draw inferences from the agreed and undisputed facts. Notice of Docket Entry (Apr. 23, 2008).
[Note 10] See the 2004 Variance Decision and the 1992 Variance Decision. See also the planning boards 1960 and 1972 ANR endorsements.
[Note 11] See G.L. c. 40A, § 17 (court shall annul decision if found to exceed boards authority or make such other decree as justice and equity may require); Petrucci v. Bd. of Appeals of Westwood, 45 Mass. App. Ct. 818 , 827-828 (1998) (affirming court order directing issuance of permit since it is clear from the record that the same ultimate result would ensue from an unspecific remand as that effected by the challenged order).
[Note 12] Agreed Facts, ¶¶ 13, 14, 18.
[Note 13] Agreed Facts, ¶¶ 18, 20, 21, 25. The 1960 ANR plan, for example, described Parcel 2 as containing approximately 1.43 acres. Ex. 4. As discovered in connection with the 1971 survey that became Land Court Plan 38131A (and the 1971 ANR plan), it is actually 1.36 acres. Ex. 7.
[Note 14] Agreed Facts, ¶ ¶ 18, 21, 22. ANR endorsement requires, inter alia, a finding by the planning board that every lot within the tract so divided has frontage on (a) a public way or a way which the clerk of the city or town certifies is maintained and used as a public way, or (b) a way shown on a plan theretofore approved and endorsed in accordance with the subdivision control law, or (c) a way in existence when the subdivision control law became effective in the city or town in which the land lies, having, in the opinion of the planning board, sufficient width, suitable grades and adequate construction to provide for the needs of vehicular traffic in relation to the proposed use of the land abutting thereon or served thereby, and for the installation of municipal services to serve such land and the buildings erected or to be erected thereon. G.L. c. 41, § 81L (definition of subdivision).
[Note 15] Agreed Facts, ¶ 19; Exs. 3 and 4; and Land Court Plan 38131A.
[Note 16] See Ex. 12 at 8 (Bylaw § I(C)(44)(c)).
[Note 17] This statement can be made because it is the only basis on which the ANR plan could properly have been endorsed under G.L. c. 41, §§ 81L and P (the way does not fall under the other two exceptions public ways, or ways previously approved in accordance with the subdivision control law). See St. 1956, c. 282 (the statutory language in effect at the time, which defined subdivision in substantially the same fashion as today); Nevins v. City Council of City of Springfield, 227 Mass. 538 , 883 (1917) (It is taken for granted that conduct of public officers as well as of individuals is according to law unless the contrary is made to appear); Planning Bd. of Appeals of Springfield v. Bd. of Appeals of Springfield, 338 Mass. 160 , 163 (1958) (presumption that public officers act legally in the performance of their duties unless properly rebutted).
The defendants claim that the 1960 and 1972 ANR endorsements for Lot 2 were unquestionably improper and contrary to law because the driveway on Lot 1 meets none of the [statutory or bylaw] definitions, Defendants Statement of Law (Jun. 17, 2008) at 7-8, but cite no evidence in the record to support that contention. Since the record fails to show that the way did not exist until after July 14, 1951, and since the facts fully support the conclusion that the way was more than sufficiently wide, suitably graded and adequately laid out for access to single family homes, the presumption that the ANR endorsements were properly granted prevails. Nevins, 227 Mass. at 883; Planning Bd. of Appeals of Springfield, 338 Mass. at 163. Lot 2s frontage on the way was, and is, 37.76 feet, and Lot 1s frontage at its border was, and is, 20.7 feet. Land Court Plans 38131A (Lot 2) and 41024A (Lot 1). Thus, since the bylaw in 1960 had no minimum frontage requirement, both lots were in compliance with the minimum twenty feet of frontage required for ANR endorsement under G.L. c. 41, § 81L and P.
[Note 18] Agreed Facts, ¶ 19.
[Note 19] Exs. 4, 5, 6, 8; Certificate of Title No. 79273, Essex (South) Registry of Deeds (Jan. 27, 2006) (certificate issued to plaintiff Frank Scalli, Jr., as trustee of the Makjacky Realty Trust).
[Note 20] See Land Court Plan 38131A, a copy of which is attached as Exhibit A. Frontage is defined in the Rockport Zoning Bylaw as frontage on street or way. Ex. 12, Bylaw § IV(B) (schedule of area and dimensions).
[Note 21] Land Court Plan 41024A; 1992 Variance Decision at 1.
[Note 22] Agreed Facts, ¶ 17; Ex. 10 (1960 Zoning Bylaw).
[Note 23] Exs. 5, 6.
[Note 24] Ex. 7; Agreed Facts, ¶¶ 24, 25, 26.
[Note 25] Ex. 11 (1972 Bylaw, §V.1(B)(d)); Agreed Facts, ¶ 28.
[Note 26] Agreed Facts, ¶ 30; Land Court Registration Case Nos. 41024 (Lot 1) and 38131 (Lot 2); Complaint, Ex. 2 (Original Registration Certificate for Lot 2).
[Note 27] Land Court Plan No. 38131A.
[Note 28] See n. 7, supra.
[Note 29] 1992 Variance Decision.
[Note 30] Id. at 1.
[Note 31] Ex. 11, Bylaw §V.1(B)(d); Agreed Facts, ¶ 28; 1992 Variance Decision at 1.
[Note 32] The current bylaw defines frontage as frontage on street or way, Ex. 12, Bylaw § IV(B) and, mirroring the definition in the subdivision control law, G.L. c. 41, § 81L, way or street as a way or street used or available for use for vehicular traffic and meeting one of the following definitions: (a) a public way duly laid out by the town, by Essex County or by the Commonwealth of Massachusetts, (b) a way or street shown on a definitive subdivision plan approved and endorsed by the Planning Board in accordance with Sub-Division Control Law and constructed in accordance with that plan and the rules and regulations of the Planning Board, (c) a way or street in existence on July 14, 1951, having, in the opinion of the Planning Board, sufficient width, suitable grades and adequate construction to adequately provide for the needs of vehicular traffic in relation to the proposed use of the lots abutting thereon or serviced thereby, (d) a public or private way shall not be deemed a way or a street relative to any lot that does not have rights of access to and passage over said way or to any lot that cannot use that way as an access. Bylaw § I(C)(44) (emphasis added). As previously noted, the board currently argues that Ocean View Drive does not meet this definition and thus cannot provide any amount of frontage in and of itself. See n. 16. However, also as previously noted, the board cites no evidence to support that contention (i.e. no evidence to show that the way as opposed to the lot was not in existence prior to July 14, 1951). Id. Thus, the presumption provided by the planning boards 1960 and 1971 ANR endorsements that the way was in existence prior to July 14, 1951 and met the sufficiency, suitability and adequacy tests set forth in both the bylaw and G.L. c. 41, § 81L is unrebutted and Ocean View Drive provides frontage within the bylaw definition. This was certainly the boards own conclusion when it granted the 1992 variance, and (as apparent from its reasoning) in the 2004 and 2006 Variance Decisions as well.
[Note 33] 2006 Variance Decision at 1 (referring to 1992 Variance Decision and its finding that the private way now known as Ocean View Drive provid[e] actual access). See also 1992 Variance Decision at 1-2 (granting variance to Lot 1) and 2004 Variance Decision at 1 (granting variance to Lot 2) (both variances based on access provided by Ocean View Drive and other characteristics of the lots).
[Note 34] Both Lot 2 and Mr. Scallis proposed home on Lot 2 complied, and continue to comply, with all other requirements of the zoning bylaw. 2004 Variance Decision at 1; 2006 Variance Decision at 1.
[Note 35] Ex. 12, Bylaw § IV(B) (Single Residential AA District).
[Note 36] The decision recited the five requirements for the granting of a variance and, one by one, found that each of them was satisfied. 2004 Variance Decision at 2.
[Note 37] Ex. 8; Agreed Facts, ¶ 34.
[Note 38] Complaint, ¶ 27. See n. 7.
[Note 39] 2006 Variance Decision at 2.
[Note 40] Board decisions are also competent evidence of the date of each meeting, the motions made, the vote upon each motion, [and] the board members present and absent. Id. As previously noted, the boards findings, however, have no evidentiary weight. Id.
[Note 41] The variance was denied on other grounds, discussed below. 2006 Variance Decision at 1, 2.
[Note 42] 2004 Variance Decision at 1, 2.
[Note 43] See Exs. 3, 4, 7, 9.
[Note 44] 2006 Variance Decision at 1, 2.
[Note 45] 2004 Variance Decision at 2,
[Note 46] 2006 Variance Decision at 2.
[Note 47] 2004 Variance Decision at 2.
[Note 48] The planning boards approval of the 1960 and 1971 ANR plans indicates that the way has been in existence since at least July 14, 1951. See n. 17 & 32.
[Note 49] I recognize that the planning boards rulings are not binding on the zoning board for purposes of zoning-related decisions. See, e.g., Arrigo v. Planning Bd. of Franklin, 12 Mass. App. Ct. 802 , 807 (1981). But they nonetheless are evidence that can be considered when weighing pretext since they are decisions of another town board addressing identical facts under essentially identical standards. In any event, the 2006 Variance Decision does not appear to contest the adequacy of the access provided by Ocean View Drive, per se. Instead, as discussed more fully below, the boards decision is purportedly based on a concern for the unfavorable precedent that supposedly would be set by allowing a variance from frontage requirements in this instance, allegedly leading to a maze of paths and ways as development pushes deeper into the woodlands. 2006 Variance Decision at 2. The question presented is whether this purported reason is genuine or pretextual
[Note 50] The board specifically found that the lot was an attractive location for a dwelling. 2006 Variance Decision at 2.
[Note 51] It has over 58,000 square feet (as previously noted, almost half again the 40,000 square feet the bylaw requires) and is bounded by town land and other lots of comparable or larger size.
[Note 52] See the 1992 Variance Decision (for Lot 1) and the 2004 Variance Decision (for Lot 2).
[Note 53] As noted above, two prior variances from the frontage requirement have already been granted to properties on this roadway, one of them to this very same lot. See n. 52, supra.
[Note 54] When a plan referred to in section eighty-one P of chapter forty-one has been submitted to a planning board and written notice of such submission has been given to the city or town clerk, the use of the land shown on such plan shall be governed by applicable provisions of the zoning ordinance or by-law in effect at the time of the submission of such plan while such plan is being processed under the subdivision control law including the time required to pursue or await the determination of an appeal referred to in said section, and for a period of three years from the date of endorsement by the planning board that approval under the subdivision control law is not required, or words of similar import. G.L. c. 40A, § 6, ¶ 6.
[Note 55] See G.L. c. 40A, § 17 (court shall annul decision if found to exceed boards authority or make such other decree as justice and equity may require); Petrucci v. Bd. of Appeals of Westwood, 45 Mass. App. Ct. 818 , 827-828 (1998) (affirming court order directing issuance of permit since it is clear from the record that the same ultimate result would ensue from an unspecific remand as that effected by the challenged order).