FRANK J. SCALLI, JR., as trustee of the Majacky Realty Trust v. LARS-ERIK WIBERG, PETER BERGHOLZ, LORI KAISER, TACY SAN ANTONIO, JOHN KRENN, CHARLES CHRISTOPHER, ELIZABETH MURPHY, JOHN REES, PATTY WEGMAN and WILHELMINA SHEEDY, as they are members of the ROCKPORT BOARD OF APPEALS

By decision dated December 7, 2006 (the “2006 Variance Decision”), defendant Rockport Board of Appeals (the “board”) denied plaintiff Frank Scalli’s application for a variance from the town’s 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. Scalli’s G.L. c. 40A, § 17 appeal from that decision, and presents a single material issue. Was the board’s 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 board’s 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 board’s ANR endorsements in 1960 [Note 5] and 1972 [Note 6]), or was it actually based on Mr. Scalli’s 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. Scalli’s 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]

Facts

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 board’s 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 1’s 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 board’s 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 board’s 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 2’s frontage on Ocean View Drive, which now dead-ends at Lot 2’s northern boundary, is 37.76 feet. [Note 20] Lot 1’s 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 2’s 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 board’s 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 board’s 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 bylaw’s 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 lot’s 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 petitioner’s 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 board’s 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 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 (judge may not adopt findings “not supported by the evidence heard by him and only appearing in the written decision of the board”). The board’s 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 court’s “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 board’s 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 board’s 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).

Analysis

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 Board’s 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 board’s view, is in “an attractive location for a dwelling.” [Note 44] I concur with the board’s 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 board’s 1960 and 1971 ANR endorsements explicitly reflect the town’s 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 Board’s improper condition about the “trail,” a residence could have been constructed at that time.

The board’s 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 plaintiff’s recognition and accommodation of the so-called “prescriptive easement” across the plaintiff’s land. The 2006 decision denied the variance after the plaintiff made clear that he would not agree to the easement’s imposition. The only difference between 2004 and 2006 was the board’s 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 plaintiff’s 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 Bylaw’s 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. Scalli’s argument, that Lot 2 is “grand-fathered” under prior zoning requirements, fails.

Conclusion

For the foregoing reasons, I find and rule that the board acted arbitrarily, capriciously and on a legally untenable basis in denying Mr. Scalli’s 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 board’s 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 board’s 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.

SO ORDERED.

Keith C. Long, Justice

Dated: 4 June 2009