Home PETER C. DeGENNARO and CORRINE A. DeGENNARO vs. WILLIAM R. SHERMAN, ANDREW J. LEDDY, JR., C. MARSHALL BEALE, as they are Members of the Nantucket Zoning Board of Appeals, ELBERT C. ULSHOEFFER, JR., as he is the Nantucket Building Inspector, and TOWN OF NANTUCKET.

MISC 125148

May 25, 1988

Nantucket, ss.



The plaintiffs, Peter C. DeGennaro and Corrine A. DeGennaro, bring this complaint pursuant to the provisions of G.L. c. 240, §14A and c. 185, §1 (j 1/2) for a determination as to whether the Nantucket Zoning By-Law as applied to their real property in said Nantucket requires a front yard set­back of thirty (30) feet from each street by which the property is bounded. In Count II the plaintiffs appealed, pursuant to the provisions of G.L. c. 40A, §17, from a condition attached to a variance granted by the defendant Zoning Board of Appeals ("ZBA"), but this Count II was dismissed by stipulation of the parties with prejudice and without costs.

A trial was held at the Land Court on May 5, 1988 at which the case was submitted to the Court on the following Agreed Statement of Facts and Evidence (Exhibit No. 12), oral argument of counsel and written briefs. The Agreed Statement of Facts and Evidence reads as follows:

A. Facts. All parties to the above-captioned action hereby stipulate and agree to the following statement of facts relative to the above­ captioned matter:

1. The plaintiffs, Peter C. and Corrine A. DeGennaro, are the owners of a parcel of land situated at 49 Nobadeer Avenue and 50 Nonantum Avenue in Nantucket, Nantucket County, Massachusetts. The parcel of land consists of Lots 6, 7, 8, 9 and 10 in Block 207, Surfside, shown on a plan filed with the Nantucket County Registry of Deeds in Plan File 3-D. The plaintiffs acquired title to the premises on July 9, 1987 from David Heller and Homer Lydecker.

2. Exhibit 1 hereto is a copy of Sheet No. 87 of the assessor's maps for the Town of Nantucket. The plaintiffs' land is depicted thereon as Lots 38.1 and 38.2.

3. The locus is bounded on the south by Nonantum Avenue, on the east by Lover's Lane, and on the north by Nobadeer Avenue. Nonantum Avenue, Lover's Lane and Nobadeer Avenue are "streets," within the meaning of the Zoning Bylaw of the Town of Nantucket, Chapter 139 of the Code of the Town of Nantucket, as adopted and in effect on both July 9, 1987 and October 2, 1987.

4. The locus is situated in a Residential-2 district, as established by the Zoning Bylaw of the Town of Nantucket.

5. Since the first adoption by the Town of a zoning bylaw in 1972, the Zoning Bylaw has included an "Intensity Regulation," including the following requirements:

a. a requirement for a minimum amount of "frontage;"

b. a requirement, in certain districts, of a "front yard" of a certain size, stated in feet.

6. Exhibit 2 hereto is a copy of the Zoning Bylaw, Chapter 139 of the Code of the Town of Nantucket, as adopted and in effect at all times during the period from July 9, 1987 through October 2, 1987. Exhibit 3 hereto consists of excerpts of the Definition section and the Intensity Regulation section of printed copies of the Zoning Bylaw, as amended through 1979, 1981, 1982 and 1984.

7. In 1984, the following new provision was inserted in the Use and Intensity Regulations of the Zoning Bylaw, 139-7(C)(2)(c):

(c) Exterior design. Modifications to the exterior of an existing principal structure resulting from the installation of an accessory apartment or the design and construction of new homes with accessory apartments integrated into the design from the start shall be consistent with the principal structure's predominant character as a single-family home. Only one (1) main entrance will be permitted on the front or street side of the building. All other entrances shall be located at the side or rear of the structure.

8. Exhibit 4 hereto is a copy of a building permit application filed by the plaintiffs' predecessor-in-title on December 27, 1984. A permit for construction of a single-family dwelling on the locus was issued on May 19, 1986 by Carl Borchert, who then was the duly appointed Building Inspector of the Town of Nantucket.

9. Exhibit 5 hereto is a copy of a building permit application filed by the plaintiffs' predecessor-in-title on or about April 1, 1985. Exhibit 6 hereto consists of copies of the Site Plan and drawings of the garage/apartment, showing front-yard setbacks of at least 30 feet from both Lover's Lane and Nobadeer Avenue, that were submitted with the permit application and were a condition of the granting thereof. On or about September 8, 1986, a building permit for the construction of a garage, with an apartment approximately 444 square feet in size located on the second floor, was issued by Elbert C. Ulshoeffer, Jr., who then was the duly appointed Building Commissioner of the Town of Nantucket.

10. A single-family house was built pursuant to Exhibit 4, and a Certificate of Occupancy was issued, authorizing the use of that dwelling. The front door of the house faces Nonantum Avenue and Lover's Lane and, at its closest point, the house is approximately 120 feet from Nonantum Avenue. At its closest point, the house is 15 feet from Lover's Lane. A plot plan showing the "as built" location of the house is submitted herewith as Exhibit 7.

11. When Mr. Ulshoeffer issued the building permit pursuant to Exhibit 5, he required that there be a "front yard" of not less than 30 feet between the proposed garage/apartment and the two streets, Lover's Lane and Nobadeer Avenue; which would bound the lot in areas adjacent to the building. His decision was based upon his interpretation of the Intensity Regulation as requiring, in the case of a lot bounded by more than one street, that the landowner maintain a "front yard" between any building constructed on such lot, and every street which forms a boundary thereto.

12. The garage/apartment was constructed in such a way that, at the closest points, it is located 28 feet from Lover's Lane and 28.5 feet from Nobadeer Avenue. The Building Commissioner determined that he would not issue a Certificate of Occupancy for the building, on the basis that the siting thereof violates the Intensity Regulation of the Zoning Bylaw pertaining to front yard setbacks.

13. On or about July 31, 1987, the plaintiffs filed an application to the Nantucket Zoning Board of Appeals, appealing from the Building Commissioner's decision concerning the application of the Intensity Regulation, or in the alternative, seeking the following relief:

(i) a variance from the thirty (30) foot "front yard" setback of Section 139-16A to permit the existing garage/apartment to be located 28.5 feet from the line of Nobadeer Avenue and 28 feet from the line of Lover's Lane;

(ii) a variance from the thirty (30) foot "front yard" setback of Section 139-16A to permit the existing single­family dwelling to be located fifteen (15) feet from the lot of Lover's Lane; and

(iii) if necessary, a variance from the requirement of Section 139-7A(3)(a) requiring a twelve (12) foot separation between a principal dwelling and a second dwelling.

A copy of the application, and an amendment thereto, specifying the relief that was sought are submitted herewith as Exhibit 8.

14. Thereafter, the Board held a hearing, received evidence and entered a decision, granting by unanimous vote the requested variance from the 30-foot front yard setback requirements "to validate the existing siting of both buildings," but conditioning such variance upon the requirement that the apartment located in the garage/apartment not contain a kitchen or be used as a secondary dwelling. A copy of the decision is submitted herewith as Exhibit 9.

B. Evidence. All parties to the above-captioned action hereby stipulate and agree to the following statement of evidence relative to the above-captioned matter, but reserve the right to object to the admissibility of same solely on grounds of relevance:

1. Nonahtum Avenue is a paved public way of the Town. Lover's Lane, which extends from the easterly end of Nonantum Avenue (the southeast corner of the locus) northward to Old South Road, is a principal route between Surfside and Nobadeer beaches. It is a dirt road, passable by automobile in the immediate vicinity of the locus; approximately one block north of the locus, Lover's Lane is unpassable for a block and a half, and then is paved and passable by automobile. Nobadeer Avenue, which extends approximately 100 feet west of the locus and approximately eight blocks east of Lover's Lane, is an unimproved dirt road and is passable by automobile.

2. Elbert C. Ulshoeffer, Jr. was appointed to the position of Building Commissioner of the Town of Nantucket in June of 1986. Prior to the appointment of Mr. Ulshoeffer, it had been the custom and practice of certain individuals who had held the office of Building Inspector to interpret the Zoning Bylaw of the Town of Nantucket in the case of a lot bounded by more than one street, to allow the landowner to designate the boundary that would constitute the lot's "frontage," and to require the landowner to maintain a "front yard" on that side of the lot, and side and rear yards, as appropriate, on the other sides of the lot.

3. Exhibit 10 hereto is a copy of the decision of the Zoning Board of Appeals in the application of Jeffrey Moore, Docket No. 125-86.

4. Approximately 200 feet to the north of the plaintiffs' property, at the intersection of Lover's Lane and Weweeder Avenue, is located property now or formerly owned by Roberta Danza. In April, 1987, the Zoning Board of Appeals held a hearing on an application for a variance for a newly constructed principal, single-family dwelling from the same 30-foot front yard setback requirement which is here at issue. The building lines of the dwelling on the lot are parallel to the lot lines and the lines of the surrounding streets. A copy of the decision by which such a variance was granted to Roberta Danza is submitted herewith as Exhibit 11.

5. Defendant William R. Sherman and other residents of Nantucket have proposed for consideration by the 1988 Annual Town Meeting an amendment to the definition of "yard, front," as follows: "The 'yard' extending from any street line inwardly the required front-yard setback distances.'"

As can be seen from the Agreed Statement, the only issue presented by this controversy is whether, in the absence of an express provision in the zoning by-law, a front yard setback requirement applies to the distance from the residence to each street on which the locus abuts. I answer this question in the negative.

The Nantucket Zoning By-law is silent as to the proper interpretation of the phrase "front yard." In zoning by-laws for many other municipalities it is made clear that there is only one front yard as is the case in Cohasset whose zoning by-law was construed in Bell v. Zoning Board of Appeals of Cohasset, 14 Mass. App. Ct. 97 , 109 (1982) and is set forth therein. In other cities or towns, there may be provisions which clearly provide that if the property abuts on more than one street, then the front yard setback is to apply in each such instance. Cf. Slack v. Inspector of Buildings of Wellesley, 262 Mass. 404 (1928). There is one Massachusetts case in which the question is raised as to what was the "rear lot line" of the lot of land in question as those words were used in the zoning ordinance. It was held that the issue was largely a question of fact with the decision to be made in the first instance by the Building Inspector. Bianco v. Ashley, 284 Mass. 20 , 24-25 (1933). In that case, however, the determination was as to only one rear yard, not the imposition of the requirements in more than one instance on a single lot.

It was not until 1982 that the Supreme Judicial Court for the first time considered the validity of minimum requirements as to frontage. MacNeil v. Avon, 386 Mass. 339 (1982). In the MacNeil case a 200 foot frontage requirement for lots with three or more dwelling units was upheld with the Court ruling that they were unable to say that such a requirement was unreasonable or arbitrary. In the present instance the inquiry is different, for the court is not faced with the question as to the reasonableness of a requirement that the front yard requirement was to apply to each boundary on the street if there were such a provision clearly set forth in the Nantucket By-Law. Rather the present Building Inspector has so interpreted the requirements of the zoning by-law even though the by-law is silent on this specific question, and that interpretation I find and rule is an arbitrary and unreasonable decision. One of the touchstones of the law in this area is that any land owner should be able to determine the provisions applicable to him from a study of the by-law. See Berman v. Coutinho, 20 Mass. App. Ct. 969 , 970 (1985); Bell v. Zoning Board of Appeals of Cohasset, 14 Mass. App. Ct. at 105; Tambone v. Board of Appeal of Stoneham, 348 Mass. 359 , 363-364 (1965). In this instance the by-law gives no guidance on the subject, and under such circumstances it seems only proper to give the word "front" its normal and ordinary meaning. As used in conjunction with "yard" the term "front yard" means, to the lay person and to an experienced conveyancer alike, the yard between the street and the front of the house. There can be only one front to any building and consequently only one front yard. In this case I find and rule that the front yard is on Nonantum Avenue. It follows that the setback requirements from Lover's Lane and Nobadeer Avenue respectively are those for side and rear yards pursuant to the Nantucket Zoning By-law and not those applicable to a front yard.

Counsel for the Town points out that the main house on locus is angled to the southeasterly intersection of Nonantum Avenue and Lover's Lane which indeed is the case. However, it appears to the Court, and I so find, that the main orientation of the house is as the plaintiffs claim, and therefore it is in relationship to Nonantum Avenue that the front yard is to be measured. I further find and rule that a determination as to the front of the building is the guideline set forth by the Supreme Judicial Court in the Bianco case. It is a question of fact, which in the first instance is to be determined by the Building Inspector when an application for a building permit is filed with his office. In most instances there should be no difficulties in determining what direction the house faces.

The important question for decision here is whether an applicant for a building permit on a corner lot must meet the more stringent front yard requirements for each side of a building which faces a street. I have ruled that he need not do so. The Building Inspector's argument to the contrary apparently is based on the language of the changes made in the zoning law in reference to another problem. In 1984 a provision was inserted in Section 139-7(C)(2) that dealt with exterior design to the effect that: "only one (1) main entrance will be permitted on the front or street side of the building." This provision has nothing to do with the question of a front yard, but it is on this change that the Town rests its case. The administrative authorities equate front with street and argue that each side of a house facing a street automatically is its front; to state the proposition is to reject it. The Town's position does pose an interesting question, however, as to whether, in an instance of a lot like that now under consideration, there can be three main entrances which would seem to follow from the Town's position, but I think each of these interpretations is incorrect.

On all the evidence, therefore, I find and rule that the front yard of the plaintiff's property is that between: (a) the southerly line of the house extended easterly to Lover's Lane and westerly to lot 9, and (b) Nonantum Avenue. The side yards are those between the easterly and westerly side of the buildings and the respective lines of the lot; the rear yard is that between: (a) the northerly line of the accessory building extended in an easterly and westerly direction, and (b) the line of Nobadeer Road.

The Town objected to the relevancy of the reference to the article in the warrant for this year's town meeting to clarify the language of the by­law. I have placed no weight on this fact since the conclusions to be drawn therefrom can be diverse. I have looked only to the language of the by-law itself and its failure to provide that there can be more than one front yard for any one lot. If the Town wishes to provide a deeper set­back in every instance where a building faces a street, then it clearly should say so. The reasonableness of such requirement then will be determined in accordance with the criterion in the MacNeil decision.

Judgment, accordingly.