STEPHEN D. ROGER and CLIFF INN CONDOMINIUM TRUST vs. WILLIAM R. MORIARTY, DAVID BENNET, BETSY BURKE-JACOBSON, KAREN TENENBAUM, and ANDREA PAPANEK, as they are members of the TOWN OF MARBLEHEAD ZONING BOARD OF APPEALS, and MARAH FLEMER

Plaintiff Stephen D. Roger ("Roger") filed his unverified Complaint pursuant to G. L. c. 40A, § 17, on January 13, 2006, appealing a decision ("Decision 1") of Defendant Town of Marblehead Zoning Board of Appeals (the "ZBA") which revoked a building permit (the "Building Permit") issued by the Marblehead Building Inspector (the "Building Inspector") to allow Roger to add a deck ("Deck 2") to his condominium unit ("Locus") located at Unit 4, 52 Chestnut Street, Marblehead, MA. [Note 1] Roger filed his Motion for Summary Judgment on September 1, 2006. On October 2, 2006, the ZBA filed its Cross Motion for Summary Judgment and Opposition to Roger's motion. Roger filed his Opposition to the ZBA's motion on October 30, 2006. A hearing was held on all motions on November 15, 2006, and a decision was issued by this court on December 21, 2006, denying Roger's Motion for Summary Judgment and allowing the ZBA's Cross Motion for Summary Judgment, and finding that a special permit was required for work performed under the Building Permit.

Roger filed an application for a special permit ("Special Permit 1") with the ZBA, which was denied on October 23, 2007, and the decision ("Decision 2") was filed with the Marblehead Town Clerk on January 3, 2008. Roger filed his Amended Complaint on January 22, 2008, appealing Decision 2. [Note 2] A pre-trial conference was held on May 14, 2008, and a trial was scheduled for June 27, 2008. On June 20, 2008, the parties reported a tentative settlement of the case and filed a joint motion for Remand and to Continue Trial, and this court issued a Remand Order on June 24, 2008. A status conference was held on October 7, 2008, at which the parties requested a sixty day Nisi Order for settlement purposes, which was issued the next day, and then extended to March 31, 2009. Roger filed an application for a modified special permit ("Special Permit 2") as a result of settlement talks, which the ZBA denied ("Decision 3") on February 10, 2009. Roger filed his Third Amended Complaint on April 16, 2009, appealing Decision 3. A revised pre-trial memorandum was filed on September 1, 2009. A site view and trial in the Land Court in Boston was held on December 15, 2009. The parties filed their Post Trial Briefs on February 4, 2010, and at that time the matter was taken under advisement.

Testimony for Roger was given by Stephen D. Roger (Plaintiff). Testimony for the ZBA was given by Marah Flemer (Defendant). There were thirty-two exhibits submitted, some in multiple counterparts.

Based on the sworn pleadings and the evidence submitted at trial, and the reasonable inferences drawn therefrom, I find the following material facts:

1. Roger purchased Locus by deed dated July 29, 1996. Locus (Unit 4) is one of four condominium units located in a single building (the "Building") at 52 Chestnut Street, Marblehead, MA (the "Property") known as Cliff Inn Condominium Building. [Note 3] The condominium was established by Master Deed dated January 28, 1981.

2. The Property is located in a Shoreline General Residence zoning district ("SG-R") and contains 6,667 square feet. Pursuant to the Town of Marblehead Zoning Bylaw (the "Bylaw"), the minimum lot size in such district for a one-family dwelling is 7,500 square feet and for a two-family dwelling is 10,000 square feet.

3. In a SG-R zoning district, a one-family dwelling is an allowed use and a two-family dwelling is a special permit use. A multifamily dwelling is a prohibited use.

4. The Building was built in the early 1900s. Up until the early 1980s, the Building was a rooming house. In 1981, the Building was converted to a condominium. There were substantial changes made to the Building by special permits in 1981 and 1995. In 1981, the special permit, in allowing structural changes to the Building, involved a reduction of the number of units in the building from six to four, and imposed nine conditions. [Note 4] In 1995, the special permit allowed the replacement and extension of an existing ground level deck ("Deck 1"), which is now approximately eight feet wide and twenty feet long, and which increased the footprint of the Building, and incorporated the nine conditions from the 1981 special permit. In this regard, a plan prepared by Otte & Dwyer, Inc. dated September 28, 1994, and entitled "Plan Showing Proposed Deck Unit 4 Cliff Inn Condominium Marblehead, Mass" shows the Building with a front yard setback of 2.37 feet from Cliff Street and a rear yard setback of 3.7 feet from the adjacent property owned by Defendant Marah Flemer ("Flemer"). The plan also shows the front yard setback on Chestnut Street as 16.10 feet with Deck 1 in place. The minimum setbacks in the SG-R zoning district are twenty feet front yard, eight feet rear yard and eleven feet side yard. [Note 5]

5. The Town of Marblehead Zoning Bylaw (the "Bylaw") was adopted on March 14, 1972. The parties do not dispute that in 1972 the Property had a pre-existing non-conforming multi-family use. [Note 6]

6. On May 8, 2005, Roger applied to the Building Inspector for the Building Permit to "replace all existing windows and clap boards, put new deck on second floor." The application was on a form titled "Buildings Other Than One or Two Family Dwellings." Deck 2 is within the existing footprint of the Building. As part of the window replacement, three (3) existing windows, totaling approximately seven (7) lineal feet, located above an existing pitched roof, were to be replaced. The pitched roof protects the first floor entryway to two units. In the application for the Building Permit, Roger requested permission to replace the three (3) windows with a single window and a 3x7 foot door, to convert approximately fifty square feet of the existing, pitched roof to Deck 2 with access from the second floor by way of the new door, and to extend the roof line. The roofline was extended by four feet, to cover Deck 1. A plan titled "Certified Plot Plan 21 Cliff Street Marblehead, Mass. Prepared for Stephen Roger" dated March 7, 2007, by Otte & Dwyer, Inc. shows the construction made pursuant to the Building Permit.

7. On May 10, 2005, the Building Inspector issued the Building Permit. Construction pursuant to the Building Permit was completed and the Building Inspector signed off on the work on June 14, 2005. Deck 2 was approximately 3.4 feet in width and 11.8 feet in length, and was constructed directly above, and within the footprint of Deck 1. [Note 7] In addition to Deck 1 and Deck 2, there is another deck attached to a different unit on the same side of the Building as Deck 1 and Deck 2, located on the third floor and accessible by another unit owner, as well as an upper floor deck on the opposite side of the Building attached to another unit and visible from Cliff Road.

8. On June 14, 2005, Flemer, who owns and resides at 48 Chestnut Street, Marblehead, MA, and is an abutter to the Property, filed a request for zoning enforcement with respect to Locus with the Building Inspector. The Building Inspector took no action.

9. On July 28, 2005, Flemer filed an appeal to the ZBA relative to the inaction of the Building Inspector.

10. On November 5, 2005, the ZBA voted unanimously to revoke the Building Permit, indicating that Roger should have applied for a special permit. On January 24, 2006, the ZBA filed its decision (Decision 1) with the Marblehead Town Clerk (the "Town Clerk").

11. Roger appealed Decision 1 to this court, which issued its decision on December 21, 2006, upholding Decision 1 in the revocation of the Building Permit.

12. On July 26, 2007, Roger filed an application for a special permit (Special Permit 1) with the ZBA [Note 8]. After hearing, the ZBA denied Special Permit 1 by a vote of 5-0 on October 23, 2007. The decision (Decision 2) was filed with the Town Clerk on January 3, 2008. Decision 2 stated

The Board then considered . . . whether [Roger] had met the special permit standards and whether the Board would exercise its discretion to grant a special permit.

This Board is not fond of second floor decks that pose a negative impact on neighbors' privacy. Moreover, this building, already a non-conforming use and a non-conforming structure, should not experience an increase in nonconformities merely for the convenience of the applicant. Architectural interest or convenience is not a reason to expose the neighborhood to a loss of privacy or an overstuffed parcel, even if the neighborhood were to contain only a single neighbor.

Accordingly, the Board voted as follows to deny the special permit on the grounds that the application would be more detrimental to the neighborhood than the status quo and for incompatibility with the general intent of the By-Law. [Note 9]

13. Roger appealed Decision 2 to this court.

14. By letter dated June 19, 2008, counsel for the ZBA outlined the settlement discussions between the parties, and the letter stated

Subject to approval of the full Board at a hearing on remand, this letter will confirm our agreement that we request a remand to the Board for the purpose of petitioner requesting a special permit to allow the roof and deck to remain as constructed, conditioned upon 1) the construction of a barrier shielding the Flemer residence from the lights; 2) that there be no access to the deck except for maintenance. Y We also discussed, to ensure compliance with the latter, that there be some kind of rail or barrier between the side of the house and the deck.

15. In response to such letter, this court issued a Remand Order to the ZBA dated June 24, 2008. The Remand Order stated:

The parties having reported a resolution of the issues presented in this case, subject to approval of the full membership of the Town of Marblehead Zoning Board of Appeals, this case is hereby ordered remanded to the Town of Marblehead Zoning Board of Appeals for further action consistent with the agreement of the parties.

16. Roger applied to the ZBA for Special Permit 2, consistent with the settlement discussions. [Note 10] As a part of the application, Roger proposed a settlement under which

1. The door leading to the newly-constructed deck would be sealed and blocked and all door hardware removed so that no access to the deck could be obtained from inside the premises; 2. The deck would not be used to store furniture or any other items; 3. Exterior lights on the second floor of the premises would be removed entirely and lights underneath the deck would be baffled to direct light away from Ms. Flemer's premises;...

The ZBA denied Roger's application for Special Permit 2 by a vote of 2-2 on February 10, 2009 (Decision 3). Decision 3 was filed with the Town Clerk on March 31, 2009. Roger appealed Decision 3 on April 16, 2009. Decision 3 stated

After considerable inquiry, and attempts to reconcile all parties' positions, Ms. Flemer refused any settlement. Y The Board then considered whether the settlement proposed by the applicants but refused by the abutter should be accepted and whether the Board would grant a special permit. In deliberations, Mr. Lipkind and Mr. Moriarty were unable to make the finding that the application would not adversely affect the neighborhood. They were of the opinion that the Action should proceed to its conclusion. Y The application is denied.

17. At the trial, Flemer testified that the closeness of Deck 2 to her property resulted in her ability to hear conversations and smell smoke from Locus, but she also testified that she had never seen anyone use Deck 2 since it was constructed in 2005. The bedroom Flemer asserted that would suffer an adverse effect from Deck 2 was a guest room that was only occasionally used. Flemer conceded that if somebody was sitting on Deck 1, Flemer could also smell the smoke and hear conversation from that deck. Flemer also conceded that she and Roger could look into the windows of each other's property from their own rooms. Flemer's house and the Building are approximately seventeen feet apart, and there are rooms of Flemer's house adjacent to Locus.

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The central issue in this case is whether the ZBA exceeded its authority in denying Special Permit 1, or, in the alternative, whether the ZBA exceeded its authority in denying Special Permit 2. I shall address Decision 2 and Decision 3 in turn. The ZBA argues that it was well within its discretion in assessing the impact of Deck 2 on the neighborhood in issuing Decision 2 and Decision 3. G.L. c. 40A, § 9, sets out, in relevant part, procedures by which a special permit may be obtained. [Note 11]

When reviewing a board's decision relative to a special permit, a judge must give "substantial deference" to a board's interpretation of its own zoning bylaws and ordinances. Manning v. Boston Redevelpment Auth., 400 Mass. 444 , 453 (1987). However, a board's "discretionary power of denial" is not limitless: it will be upheld "up to those rarely encountered points where no rational view of the facts the court has found supports the board's conclusion." Britton v. Zoning Bd. of Appeals of Gloucester, [supra at 74-75.] This court must first look to the Bylaw and to G. L. c. 40A, § 6, relative to the requirements for a special permit for a nonconforming structure or a nonconforming use. [Note 12]

Section 200-30C of the Bylaw states,

Special permit for the change of a nonconforming building. A building housing an allowed use which does not currently conform to the dimensional requirements of this Bylaw may not be altered, reconstructed, extended or changed unless a special permit for use and dimension for such change shall first be obtained from the Board of Appeals . . . the criteria set forth in § 200-36B, Standards for special permit for use and dimension, shall apply.

Section 200-36B states,

Standards for special permit for use and dimension. The Board of Appeals shall consider the following standards:

(1) The general purpose and intent of this Bylaw, and whether

(2) The specific site is an appropriate location for such use or building; and

(3) The use as developed will not adversely affect the neighborhood; and

(4) There will be no nuisance or serious hazard to vehicles or pedestrians;

(5) Adequate and appropriate facilities will be provided for the proper operation of the proposed use.

G. L. c. 40A, § 6 states in part as follows:

Pre-existing nonconforming structures or uses may be extended or altered, provided, that no such extension or alteration shall be permitted unless there is a finding by the permit granting authority or by the special permit granting authority designated by ordinance or by-law that such change, extension or alteration shall not be substantially more detrimental than the existing nonconforming use to the neighborhood.

Special Permit 1.

Roger states that the ZBA made no findings relative to the denial of Special Permit 1 in conformance with the state statute and the Bylaw, and argues that the ZBA may not deny Special Permit 1 simply by stating that the statutory conditions for a special permit were not met and that the special permit is more detrimental to the neighborhood and inconsistent with the intent of the Bylaw. He references Wendy's Old Fashioned Hamburgers of New York, Inc. v. Board of Appeal of Billerica, 454 Mass. 374 , 386 (2009) ("When a decision contains conclusions that do nothing more than repeat regulatory phrases, and are unsupported by any facts in the record, we are constrained to conclude that the decision is 'unreasonable, whimsical, capricious or arbitrary,' and therefore invalid.") He also points out that the trial is a trial de novo, and that Defendants must produce evidence to this court to indicate that the denial of Special Permit 1 and Special Permit 2 was valid. “In a word, the matter is heard de novo and the judge makes his own findings of fact, independent of any findings of the board, and determines the legal validity of the decision of the board upon the facts heard by the court...” (emphasis in original) Bicknell Realty Co. v. Board of Appeals of Boston, 336 Mass. 676 , 679 (1953).

This court must review the reasons and relevant facts stated in Decision 2 to find whether the ZBA has set forth clearly the reason for its decision and of its official actions under G. L. c. 40A, § 9. Decision 2 stated that the ZBA "determined that, given the evidence presented, the application did not meet the standards and refused to exercise its discretion to grant a special permit." There are five requirements under Section 200-36B of the Bylaw for special permits, as cited, supra. Roger alleges that Deck 2 is consistent with all five requirements because it meets the criteria of Section 200-36B of the Bylaw, is an appropriate location for the deck as it is a residential structure and there are many other decks in the neighborhood, and the deck will have no impact on vehicles or pedestrians. [Note 13] The central issue appears to be the impact on the neighborhood. Decision 2 stated that "the application would be more detrimental to the neighborhood than the status quo and for incompatibility with the general intent of the By-Law." The ZBA listed two reasons in Decision 2 for denial of Special Permit 1, one of which is "this building, already a non-conforming use and a non-conforming structure, should not experience an increase in nonconformities merely for the convenience of the applicant", and the other that Deck 2 poses "a negative impact on neighbors' privacy" and "[a]rchitectural interest or convenience is not a reason to expose the neighborhood to a loss of privacy or an overstuffed parcel." Decision 2 did not, however, give a basis for such findings. This court must review these two reasons and look at relevant facts. The first issue is whether the Building would experience an increase in nonconformities, which would make it more detrimental to the neighborhood. The Building contains both a preexisting non-conforming use and structure because: a) the Building is a four-family dwelling, which is a prohibited multifamily dwelling use in the Bylaw; and b) the Building has a front yard setback of 2.37 feet from Cliff Street, a front yard setback of 15.9 feet from Chestnut Street, and a rear yard setback of 3.7 feet from the adjacent property owned by Flemer, which violates the minimum setbacks requirement in the Bylaw. [Note 14], [Note 15] The multi-family use of Locus is not changing. The dimensional setbacks for the Building are not changing, since Deck 2 was constructed within the footprint of Deck 1; moreover, Deck 2 does not violate the twenty foot front yard setback. However, since Locus is an undersized lot, the addition of Deck 2 may increase the density of the lot since it adds slightly more bulk to the Building. But Bjorklund v. Zoning Bd. Of Appeals of Norwell, 450 Mass. 357 , 362-63 (2008) states that “the addition of a dormer; the addition, or enclosure, of a porch or sunroom” are examples of small-scale structural changes which “could not reasonably be found to increase the non-conforming nature of a structure, and we conclude, as a matter of law, that they would not constitute intensifications.” [Note 16] As a result, I find that Deck 2 does not increase nonconformities of either structure or use.

The second issue is whether Deck 2 adds a substantial detriment of “loss of privacy or an overstuffed parcel” to the neighborhood. Flemer was the only person who gave evidence at trial relative to the detriment to the neighborhood, and her testimony was very truncated. Flemer's main contention was loss of privacy. At first blush it appears that the primary privacy issue is caused by the proximity of Flemer's premises to Locus. [Note 17] There are, however, valid privacy concerns resulting from Deck 2. It is true that Flemer has never seen nor heard anyone on Deck 2 from the time it was constructed in 2005 to the present, yet she expressed concern that she would be able to hear people talking and smell cigarette smoke if people were to use Deck 2. [Note 18] Moreover, Flemer points out that Deck 2 has a direct view into a guest bedroom in her home, and photographs in evidence support this fact. As a result, it appears that Deck 2 exacerbates the privacy issue, specifically in regards to the guest bedroom in Flemer's home.

Flemer's contentions, at least with regards to the noise and cigarette smoke from Deck 2, are purely speculative, yet “even when a zoning board cites no particularized reasons or any specific evidence for its denial decision, its actions will be upheld,...if a rational basis for the denial exists which is properly supported by the record.” Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349 , 356 (2001). There is a rational basis for the ZBA denying the special permit based on the potential nuisance of noise and cigarette smoke, in addition to the loss of privacy to Flemer's guest bedroom as a result of any use of Deck 2. [Note 19]

Even if this court were to disagree with the ZBA's denial of Special Permit 1, it would be improper to substitute the judgment of this court in favor of that of the ZBA. In the case at bar, it is likely that reasonable minds could differ as to the seriousness of the privacy and nuisance issues arising out of Deck 2; however, this court will defer to the unanimous decision of the ZBA to deny Special Permit 1. See ACW Realty Management v. Planning Bd. of Westfield, 40 Mass. App. Ct. 242 , 247 (1996) (“if reasonable minds could differ on the seriousness of a problem in relation to the issuance of a special permit, it was the board's decision, and not the court's, which is controlling”). Id. As a result of the foregoing, I find that there is sufficient evidence to support the ZBA's finding that Deck 2 would be “substantially more detrimental” to Flemer's privacy.

Special Permit 2.

Flemer testified that Deck 2 affected her "emotionally" because she felt that Deck 2 violated the conditions established in the 1981 special permit. [Note 20] One of those conditions called for the construction of an eight foot high fence along the boundary of the Flemer property. It could be argued that such fence protected Flemer's privacy because in 1981 there were no exterior structures on Locus impacting the privacy of the Flemer property. When Deck 1 was added to the first floor in 1985, which was not opposed by Flemer, such fence did not protect Flemer's privacy from Deck 1, as the deck was higher than the fence. Notwithstanding the foregoing, as discussed, supra, it could be argued that Deck 2 will impact Flemer's privacy to some degree. The proposals, however, that Roger made in the application for Special Permit 2, would clearly protect Flemer from the potential loss of privacy caused by Deck 2. [Note 21] A letter from the attorney for the ZBA dated June 19, 2008, which is in evidence, indicated general agreement with this concept, and the post-trial brief from the ZBA labeled the proposal as "a reasonable one" and "a genuine effort by both sides."

The terms Roger presented in his application for Special Permit 2 addressed Flemer's privacy issue, which is the central issue in this case, as discussed, supra. The requirement that Roger baffle the lights underneath Deck 2, however, are unreasonable as it does not relate to Deck 2, and shall not be included in Special Permit 2. The lights underneath Deck 2 are for the benefit of Deck 1, which Flemer did not oppose. Therefore, the conditions of Special Permit 2 shall be as follows:

1. The door leading to the newly-constructed deck will be sealed and blocked and all door hardware removed so that no access to the deck could be obtained from inside the premises;

2. The deck will not be used to store furniture or any other items;

3. Exterior lights on the second floor of Locus will be removed entirely.

4. All construction changes will be inspected and certified complete by the Building Inspector as a condition of Special Permit 2.

As a result of the foregoing, I find that the ZBA exceeded its authority in denying Special Permit 2, since there is no evidence indicating that Deck 2 would increase the nonconformities to the Building, nor would Deck 2, with the conditions hereby imposed, be substantially more detrimental to the neighborhood because of causing "loss of privacy."

As a result, I remand this matter to the ZBA to issue Special Permit 2 in accordance with the terms of this Decision. [Note 22], [Note 23]

Judgment to issue accordingly.

Alexander H. Sands, III

Justice

Dated: January 7, 2011