JUSTIN E. GALE, HENRY WARE GALE, PETER PEABODY GALE, BENJAMIN WINSOR GALE and EMILY ANNE GALE v. JAMES P. MOVALLI, DAVID B. GARDNER, STEPHAN C. REYNOLDS, and ROBERT C. STEWART, as they are Members of the CITY OF GLOUCESTER ZONING BOARD OF APPEALS and GEORGE B. FOOTE, JR., Trustee under the 1988 REVOCABLE TRUST INDENTURE OF ANNA PUTNAM FOOTE u/d/t dated October 27, 1988

This case comes before the Court on Plaintiffs’ Motion for Summary Judgment. The action was commenced on December 30, 2008 by the Plaintiffs, appealing the decision of the City of Gloucester Zoning Board of Appeals (“ZBA”), pursuant to G.L. c. 40A § 17, granting a special permit and variance allowing the applicant/defendant, George B. Foote, Jr., Trustee, to demolish and reconstruct a structure on property located at 19 Squam Rock Road, Gloucester (“The Premises”).

On September 30, 2009, Plaintiffs moved for Summary Judgment and filed a supporting memorandum and exhibits. Defendants’ Opposition to Summary Judgment was filed on November 24, 2009, and Plaintiffs’ Reply was filed on December 29, 2009. On January 5, 2010 a Summary Judgment Hearing was held and the matter taken under advisement; also on that date, Defendant’s Motion to Strike Computer Modeling Images and Motion to Strike Plaintiffs’ Supplemental Answers to Interrogatories were argued and taken under advisement.

Based on the record as assembled by the parties pursuant to Mass. R. Civ. P. 56 and submitted to the Court, I find that the following facts are not in dispute and justify Summary Judgment in favor of the Defendants.

1. The Plaintiffs, Justin E. Gale, Henry W. Gale, Peter P. Gale, Benjamin W. Gale and Emily A. Gale (the “Gales”) are the owners of 17 Squam Rock Road, Gloucester, Massachusetts, a property that abuts the Premises, and assert that they are aggrieved by a December 11, 2009 decision of the Defendant ZBA.

2. The Defendant, George B. Foote, Jr., Trustee under the 1988 Revocable Trust Indenture of Anna Putnam Foote dated October 27, 1988, of 61 Judy Farm Road, Carlisle, Massachusetts (the “Applicant”), is the owner of the Premises, located at 19 Squam Rock Road, Gloucester, Massachusetts. The Premises is held in trust for the beneficiaries of said Trust, the Foote family members.

3. The Premises is located in Zoning District R-2 (low/medium residential). The Premises is pre-existing nonconforming with respect to lot area, lot width, frontage, front yard setback, and rear yard setback.

4. The Plaintiffs’ property (the “Gale Property”) surrounds and abuts the Premises on the southeasterly and southwesterly boundaries of the Premises. The Gale Property is improved with a two-story residential structure approximately 3000 square feet in size, and a smaller 1.5 story accessory structure.

5. Both the Premises and the Gale Property are located on the coastal peninsula of Annisquam, in the area known as Cape Ann. Both properties enjoy views of the ocean and the historic Annisquam lighthouse. A Decision Sketch showing the two lots and the surrounding area is attached hereto.

6. The Premises is bounded on the northwest by Ipswich Bay and the Annisquam River, and on its northeasterly side is bounded by preserved open space owned by the Squam Rock Land Trust.

7. The Premises slopes from approximately 30-33 feet in elevation at its southeasterly bound to 14-15 feet at the edge of the coastal bank, an estimated 15 foot change in elevation over approximately 145 feet.

8. The area surrounding the Premises includes lots and houses of various sizes, including lots smaller and larger than the Premises.

9. The Premises is accessed via a right of way from Squam Rock Road, a private way, over the Gale Property.

10. The Gale Property and the Premises once comprised a single lot, purchased by Lyman Gale in 1900. In 1961, Lyman Gale died and the property was divided into two lots with a cottage on each. The right of way over the Gale Property was created at that time. The two parcels were conveyed to Lyman’s children Winsor Gale and Priscilla (Gale) Smith. Winsor Gale’s lot (the Gale Property) was eventually transferred to his children, Joan, Jem and Justin. Justin Gale, a plaintiff herein, then purchased his siblings’ shares and over time conveyed partial ownership to his children, the remaining plaintiffs named herein. Priscilla (Gale) Smith’s lot, the Premises, was conveyed to her daughter Anna Foote upon her death. In 1988, Anna conveyed the Premises to the family trust that currently holds title.

11. Essentially, the Gale Property and the Premises are derived from a shared family compound with a common driveway.

12. In September 2008, the Defendant/Applicant Mr. Foote (the “Applicant”) applied to the ZBA for (1) a special permit to alter/expand the existing non-conforming structure, and (2) variances in order to allow for the proposed new structure to be built with reduced setbacks.

13. The Applicant’s plans call for the demolition of the existing structure, which is approximately 1,000 square feet in size, and the construction of a larger structure in its place.

14. The Applicant sought relief from the applicable set-backs within the application as follows:

Side Yard Setback Required: 20'
Existing dimension: approx. 17'
Proposed dimension: 11' 10"

Front Yard Setback Required: 30'
Existing dimension: approx. 18' 9"
Proposed dimension: 21' 4"

Rear Yard Setback Required: 30'
Existing dimension: approx. 17'
Proposed dimension: 11' 10"

15. The application was the second submission by the Applicant to the ZBA concerning the proposed structure. An earlier application was withdrawn without prejudice in July 2008 in response to opposition by the Gale family, opposition from other neighbors, and a suggestion by the ZBA that the parties confer and the Applicant re-submit a smaller design.

16. The subject application was filed September 16, 2008. The ZBA held a public hearing concerning the Application on October 9, 2008.

17. The ZBA granted to the Applicant the requested special permit and a variance as follows: “Therefore, the Board unanimously voted to grant all variances from the requirements of the zoning ordinance required to allow the reconstruction of the existing single-family home as shown on the Plans.”

18. Within the decision, the ZBA made findings concerning the Premises in support of its grant of the variance as follows:

19. The applicant has estimated that construction of the proposed structure would take place over a fifteen month period.

DEFENDANT FOOTE’S MOTIONS TO STRIKE: SECTIONS OF GALE AFFIDAVIT, COMPUTER IMAGING MODELS, AND PLAINTIFFS’ SUPPLEMENTAL ANSWERS TO INTERROGATORIES

As a preliminary matter, the Court denies Defendant Foote’s Motion to strike Plaintiffs’ Supplemental Answer to Interrogatory number four (4), which is not substantially different from Plaintiffs’ original Answer, and therefore is not unduly prejudicial to the Defendants.

The Court grants Defendant Foote’s Motion to Strike Paragraph 18 of the Gale Affidavit and Exhibit 12, both which reference emails sent by neighbors opposing the Foote Application. This evidence is inadmissable hearsay and irrelevant to the legal issue at hand.

The Court denies Defendant’s Foote’s Motion to Strike Computer Modeling Images, but bears in mind the objections raised by the Defendant in evaluating the weight of the evidence.

STANDARD OF REVIEW

“Summary judgment is appropriate where there is no genuine issue of material fact, and viewing the evidence in the light most favorable to the nonmoving party, the moving party is entitled to judgment as a matter of law.” Opara v. Massachusetts Mut. Life Ins. Co., 441 Mass. 539 , 544, 806 N.E.2d 924 (2004). In making a determination as to whether a genuine issue of material fact exists, the court must draw all reasonable inferences from the material accompanying the summary judgment motion in the light most favorable to the party opposing the motion, and resolve all doubt concerning the existence of a material fact against the moving party. Attorney Gen. v. Bailey, 386 Mass. 367 , 371, 436 N.E.2d 139 (1982). The party opposing summary judgment “cannot rest on his or her pleadings and mere assertions of disputed facts to defeat the motion for summary judgment.” LaLonde v. Eissner, 405 Mass. 207 , 209 (1976). When appropriate, summary judgment may enter against the moving party. Mass R. Civ. P. 56(c).

ANALYSIS

The issues before the Court are the following: (1) whether the Plaintiffs have standing to appeal the decision of the ZBA under G.L. c. 40A § 17, and (2) if standing is found, whether the ZBA erred in granting a variance to the Applicant. The Court finds that, while Plaintiffs have standing to challenge the decision of the ZBA, there remain no issues of material fact that must be decided at trial. Therefore, summary judgment is granted to Defendant.

I. STANDING

Massachusetts General Laws chapter 40A § 17 provides in pertinent part: “[a]ny person aggrieved by a decision of the board of appeals or any special permit granting authority . . . may appeal to the Land Court Department . . . by bringing an action within twenty days after the decision has been filed in the office of the city or town clerk.” In other words, in a zoning action, a person must be “aggrieved” in order to have standing to bring such an action. The Supreme Judicial Court has defined the phrase “person aggrieved” as a person whose legal rights have been infringed by the board’s action, which legal rights are of a type “intended to be given to the plaintiff by the statute permitting an appeal.” Circle Lounge & Grille v. Bd of Appeals of Boston, 324 Mass. 427 , 430-31 (1949); Barvenik v. Bd. Of Alderman of Newton, 33 Mass. App. Ct. 129 , 137-39 (1992).

In order to demonstrate such injury, “plaintiff must establish – by direct facts and not by speculative personal opinion – that his injury is special and different from the concerns of the rest of the community.” Barvenik, 33 Mass. App. Ct. At 132. A presumption of standing lies in favor of “parties in interest” defined by G.L. c 40A § 11 as “the petitioner, abutters, owners of land directly opposite on any public or private street or way . . . .” However, this presumption can be rebutted by the defendant by putting forth sufficient evidence to show that plaintiff “has no reasonable expectation of proving a legally cognizable injury.” Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 35 (2006).

The above stated standard, as applied to the case at bar, requires this Court to find that the Plaintiffs are persons aggrieved with standing to appeal the decision by the ZBA. The Plaintiffs’ have put forth sufficient evidence to support their contention that certain aspects of their property that are protected by the Gloucester Zoning Ordinances, such as property value and light and air, may be adversely affected by the proposed structure on the Premises, thereby giving the Plaintiffs standing to appeal the ZBA decision. [Note 1]

First, the Plaintiffs have established that they are the immediate abutters of the Premises on two sides; therefore, they enjoy a presumption of being a person aggrieved. Next, the Premises can only be accessed by a right of way over the Plaintiffs’ property, so any increase in year round use, as well as construction of the proposed structure, may affect the Plaintiffs’ enjoyment of their land. Additionally, both the existing structure and the proposed structure on the Premises are approximately thirty feet from the Plaintiffs’ property. This close proximity means that any substantial change of use to the Premises has the potential to substantially affect Plaintiffs’ privacy and enjoyment of their property. In particular, a primary function of an ocean front dwelling is the enjoyment of the light and air, specifically the view, and Plaintiffs have shown that their view may be adversely affected by the proposed structure to be built on the Premises. Moreover, the close proximity means that any changes to the Premises will directly affect the property values of the Plaintiffs’ property, though there is a dispute between the parties about whether the proposed structure will increase or decrease the value of the Gale Property. In short, the close proximity and the use of the right of way show that the Plaintiffs’ have a legal interest that is different and distinct from the public at large; therefore, the Plaintiffs have standing.

II. PLAINTIFFS’ APPEAL OF THE ZBA DECISION

G.L. c 40A § 17 provides in relevant part that “[t]he court shall hear all evidence pertinent to the authority of the board or special permit granting authority and determine the facts, and, upon the facts as so determined, annul such decision if found to exceed the authority of such board . . . or make such other decree as justice and equity may require.” The Supreme Judicial Court has interpreted § 17 to require that a court hearing an appeal pursuant to G.L. c 40A § 17 apply a combination of de novo review and deference to the judgment of the municipal authority. Bicknell Realty Co. v. Bd of Appeal of Boston, 330 Mass. 676 , 679 (1953). The court is solely concerned with “the validity but not the wisdom of the board’s action.” Wolfman v. Bd. Of Appeals of Brookline, 15 Mass. App. Ct. 112 , 119 (1983). The court may overturn the board’s decision only if the decision is “based on a legally untenable ground or is unreasonable, whimsical, capricious or arbitrary.” Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 ,72 (2003).

An issue has been raised concerning whether the Applicant even needed a variance prior to constructing the home according to the new plans, or whether a special permit and a finding pursuant to G.L. c. 40A § 6 would have been sufficient. [Note 2] G.L. c. 40A § 6 states that an alteration, reconstruction, extension or structural change of a nonconforming single-family residential structure is legitimized under the second “except clause . . . if it “does not increase the nonconforming nature of said structure”; otherwise . . . it must be submitted . . . for a determination by the board of the questions whether it is “substantially more detrimental than the existing nonconforming [structure] to the neighborhood.” Fitzsimonds v. Bd. of Appeals of Chatham, 21 Mass. App. Ct. 53 , 55 (1985). See also Mark Bobrowski, Handbook of Massachusetts Land Use and Planning Law, 199-201 (2d ed. 2002). In the present case, the ZBA made a finding on page four (4) of its decision that the proposed structure will not be substantially more detrimental to the neighborhood than the existing nonconforming structure. Therefore, as a matter of law, a variance was not required.

Alternatively, this Court holds that even if a variance was required, it was validly granted. Pursuant to G.L. c 40A § 10, a variance from the applicable requirements of municipal zoning codes shall only be granted where “(1) literal enforcement of the provisions of this ordinance would involve substantial hardship to the applicant, financial or otherwise; (2) and said hardship arises from circumstances relating to the soil conditions, shape or topography of the land or structure(s) in question, which circumstances particularly affect such land or structure(s) but which do not generally affect the zoning district in which they are located; and (3) the desired relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of this ordinance.” (Numbering/emphasis added). The Statute’s requirements are conjunctive and variances may only be granted where all the requirements are met. Perez v. Bd of Appeals of Norwood, 54 Mass. App. Ct. 139 , 142 (2002). It appears from the record that there remains no dispute of fact whether each of these statutory prerequisites has been met; in addition, insufficient evidence has been put forth to show that the ZBA’s decision was based on a legally untenable ground, or was unreasonable, whimsical, arbitrary or capricious. Therefore, Summary Judgment in favor of the Defendants is granted.

In regards to the first two elements required for a variance, it is clear that the unusually narrow shape of the lot would make any kind of reasonable improvement to the Premises impossible without a variance. The ZBA aptly noted that the required setbacks leave only 24 feet of buildable width because the lot is so narrow. The variance allows the applicant 30 feet of workable width to construct an adequately sized structure. The ZBA correctly noted that literal enforcement of the zoning ordinance would result in a structure that would be functionally too narrow, thereby creating a substantial hardship for the applicant. The ZBA also correctly noted that the steep grade, the scattered ledge, and ledge outcroppings further contribute to the substantial hardship for the Applicant by restricting the possible area to build, though these features do not appear to be unusual in that neighborhood. Plaintiffs cite to case law and argue that the relative narrowness of the lot is a legally irrelevant consideration. This argument is invalid because Plaintiffs misconstrue the case law they cite, which is only applicable to lots that are below the minimum lot size required to build upon. [Note 3]

Further, the evidence on the record also supports the ZBA’s finding that the proposed structure is appropriate for the neighborhood because it will be smaller than the adjacent residence and most other structures in the neighborhood; thus, the grant of variances will not nullify or derogate from the purposes of the zoning ordinance. The record shows that the Annisquam neighborhood, and Squam Rock Road in particular, is home to both large estates and small seasonal cottages. Accordingly, the proposed structure is appropriate for the neighborhood in which it is to be built.

It is also clear that the ZBA was correct in finding that the grant of the variance will not have a negative impact on the public good because there will not be any increased impact on neighbors. The Plaintiffs contend that the proposed structure will be just as large as the structure originally proposed to, and rejected by, the ZBA, and they opine that the Applicant merely recategorized the attic and basement to consist of non-living space in order to represent the structure as a two bedroom home. The Plaintiffs further submit that the view from the Gale Property will be significantly blocked by the proposed structure on the Premises. However, the plans that were submitted to, and approved by, the ZBA indicate otherwise, depicting a structure that is placed so as to minimalize the impact on the view from the Gale Property. The computer generated images submitted by the Plaintiffs indicate that the proposed structure will block the view from the Gale Property, but these images place the basement level above ground, which creates the appearance of more height – in contradiction of the plan that was submitted to, and approved by, the ZBA.

CONCLUSION

This court finds that, as a matter of law, the Plaintiffs have standing to appeal the decision of the ZBA under G.L. c. 40A § 17; however, the record indicates that the Applicant did not need a variance; they merely needed a special permit. Nevertheless, the ZBA did not err in granting both a special permit and a variance to the Applicant, and insufficient evidence was submitted to show that the ZBA’s decision was made on a legally untenable ground. In short, the ZBA was justified in granting the special permit and variance to the Applicant. There remain no issues of material fact that must be decided at trial; therefore, summary judgment is hereby granted to Defendants.

For the foregoing reasons, this Court concludes that the Plaintiffs’ Motion for Summary Judgment is DENIED, and Summary Judgment for the Defendants is GRANTED.

Judgment to enter accordingly.

Charles W. Trombly, Jr.

Justice

Dated: July 01, 2010