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 denial.
For the reasons set forth in the June 4, 2009 decision issued by this court (Long, J.), 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. I find and rule that Mr. Scalli fully satisfied the requirements for a variance. Finally, I find and rule that no reasonable board, acting in good faith consistently with its past rulings on an adjoining lot and this very same lot, would deny a variance in the circumstances presented in this case. Accordingly, the boards decision is hereby ANNULLED and VACATED, and the case is remanded with instructions that the variance promptly be issued. 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.
By the court (Long, J.)
[Note 1] The proposed home would be fully compliant with all other requirements of the towns zoning bylaw. 2006 Variance Decision at 1.