MISC 06-317772

January 7, 2011

Sands, J.


Plaintiff Stephen D. Roger ("Roger") filed his unverified Complaint pursuant to G. L. c. 40A, ยง 17, on January 13, 2006, appealing a decision ("ZBA 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 ("Land Court Decision 1") 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 ("ZBA Decision 2") was filed with the Marblehead Town Clerk on January 3, 2008. Roger filed his Amended Complaint on January 22, 2008, appealing ZBA 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 ("ZBA Decision 3") on February 10, 2009. Roger filed his Third Amended Complaint on April 16, 2009, appealing ZBA 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. A decision of today(s date ("Land Court Decision 2") has been issued.

In accordance with Land Court Decision 1 and Land Court Decision 2, it is:

ORDERED and ADJUDGED that the two photographs attached to the affidavit of Marah Flemer dated September 29, 2006, together with statements in the affidavit relating to what the photographs show, are ALLOWED as a part of the summary judgment record.

ORDERED and ADJUDGED that Paragraphs 21, 22 and 23 of the affidavit of Marah Flemer are stricken.

ORDERED and ADJUDGED that Roger requires a special permit for work performed under the Building Permit.

ORDERED and ADJUDGED that Roger's Motion for Summary Judgment is DENIED and Defendants' Cross-Motion for Summary Judgment is ALLOWED.

ORDERED and ADJUDGED that Deck 2 does not increase nonconformities of either structure or use.

ORDERED and ADJUDGED that there is sufficient evidence to support the ZBA's finding that Deck 2 would be "substantially more detrimental" to Flemer's privacy.

ORDERED and ADJUDGED 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."

ORDERED and ADJUDGED that this matter is remanded to the ZBA to issue Special Permit 2 with the following terms: [Note 3]

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.

By the court. (Sands, J.)


Deborah J. Patterson


Dated: January 7, 2011


[Note 1] The Master Deed for the condominium lists the address for Locus as 21 Cliff Street, Marblehead. The condominium building (the "Building") is located at the intersection of Cliff Street and Chestnut Street.

[Note 2] Roger filed his Second Amended Complaint on April 7, 2008, adding Cliff Inn Condominium Trust as a Plaintiff (together with Roger, "Plaintiffs") because ZBA Decision 2 stated that Deck 2 was a common area of the condominium.

[Note 3] Special Permit 2 was requested by both the ZBA and Roger, based on representations of a settlement between the parties. The Remand Order made it clear that such settlement proposal was subject to a vote of the ZBA; however, at the ZBA hearing, Flemer "refused any settlement" prior to the vote. Because of her refusal, two members of the ZBA "were unable to make a finding that the application would not adversely affect the neighborhood." There were, however, no reasons given for this statement other than the refusal by Flemer to accept Roger's proposal.