MISC 122297

May 25, 1989

Essex, ss.



In 1944 Justice (later to be Chief Justice) Qua wrote in Marblehead v. Rosenthal, 316 Mass. 124 at pages 125-126 as follows:

It was plainly within the power of the town to leave its oldest built up section in an unrestricted district. Nothing in the statute (now designated in its amended form as G.L. [Ter. Ed.] c. 40, §§25-30B; see St. 1933, c. 269, §1) or in common sense requires a municipality to impose restrictions upon all of its territory as a condition of the exercise of its zoning powers. The defendants concede that it is a question of reasonableness. The evidence makes it plain that the district left unrestricted, being the old seaport village built on rocky ledges of different heights, with buildings of all kinds devoted to every sort of use crowded together in irregular confusion and reached by narrow streets winding among them, differs from the restricted portions of the town in almost every respect important in zoning and could in itself scarcely be made the subject of reasonable restrictions. There was nothing unreasonable, arbitrary, or capricious in not restricting the old portion of the town, when the other portions were restricted.

Since the foregoing was written over forty years ago, the Town of Marblehead gradually has rezoned its unrestricted areas in the old town, and it is to its action in 1978 in creating three Harborfront Districts that Tucker's Wharf Limited Partnership ("the plaintiff") and John H. Blodgett and John Veary, Jr., General Partners, object and bring this action, originally pursuant to the provisions of G.L. c. 40A, §17 and c. 185, §1 (j 1/2) and c. 240, §14A. It is only the latter claims which plaintiff now presses. It is its contention that the present zoning is arbitrary and unreasonable, a denial of equal protection and invalid as spot zoning. The Town counters that the action taken by the town meeting clearly was within its legislative powers pursuant to the provisions of the Enabling Act. This property also is situated within the Coastal Overlay District to which locus also is subject and the validity of which is pending in a separate action brought by the plaintiffs. There are other attacks on the validity of the Overlay District as well, motions for summary judgment having recently been argued in the cases of Moore v. Marblehead, Land Court Miscellaneous Case No. 128067, and Chew v. Marblehead, Land Court Miscellaneous Case No. 128325, in neither of which has any decision yet been made.

A trial was held at the Land Court on November 21, 1988 at which a stenographer was appointed to record and transcribe the testimony. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal. John H. Blogett, a limited partner and one of the two general partners in Tucker's Wharf Limited Partnership, the plaintiff; Herbert A. Haskell, Inspector of Buildings for the Town of Marblehead; Betty J. Brown, the Town Clerk; David Hark, a real estate appraiser; Lawrence Alexander, a member of the Massachusetts House of Representatives for the district encompassing Marblehead, Swampscott and a portion of Lynn, and former Chairman of the Marblehead Planning Board; Virginia Gamage, President of the Old Marblehead Improvement Association; and Fara Courtney, an employee of the Executive Office of Environmental Affairs of the Commonwealth of Massachusetts in the Coastal Zone Management Office, testified. Portions of the deposition of John McCloskey, the Marblehead Harbor Master, were read into the record.

On all the evidence, I find and rule as follows:

1. The plaintiff is the owner of the property comprising both registered and unregistered land conveyed to it by Marblehead Transportation Co., Inc. by deed dated July 15, 1978 and recorded with Essex South District Deeds in Book 6559, Page 239, and registered as Document No. 169010. The land to which the plaintiff claims title is shown on a plan entitled "Plan of Land in Marblehead Prepared for Tucker's Wharf Condominium" dated March 15, 1983 by Hancock Survey Associates, Inc. (Exhibit No. 14).

2. In the late 1970's a Citizens Advisory Board requested the Planning Board to study harbor issues and the latter board devoted 1977, "The Year of the Harbor" to work related to harbor problems. The Planning Board ultimately determined that it would be advisable to zone the remaining unrestricted areas of the Town. One of the mechanisms which it chose to a ccomplish this result was the creation of Harborfront Districts. The purpose of creation of this zone was to maintain the maritime flavor of Marblehead Harbor and to decrease the intensity of condominium development in the area which was becoming of concern to some persons. Accordingly, the Planning Board recommended that three areas be rezoned from Unrestricted to Harborfront Districts. At the town meeting held on May 3, 1978, three articles to amend the Zoning By-Laws and Zoning Map so as to change certain described areas from an unrestricted district to a Harborfront District were adopted. The present locus owned by the plaintiff was included in Article 29. Subsequently, the Zoning By-Law was again amended to change the zoning of one of the three Harborfront Districts.

3. The Planning Board report (Exhibit No. 5) summarized the proposed changes as follows:

The harborfront zoning district would, as a matter of right, continue to allow for the development of single and two-family homes, boat services, marine-related offices, and studios, and would permit all buildings lawfully in existence at the present time to continue in their current use. New construction of retail stores, restaurants, banks, offices, personal service shops, and parking facilities would be allowed in the harborfront zoning district by special permit of the Board of Appeals.

The following uses would not be allowed in the harborfront zoning district: new gasoline stations, auto dealers, repair garages, light manufacturing, warehouses, laundries, research laboratories, funeral homes, indoor amusement centers, medical centers, hotels, motels, rooming houses, and multi-family dwellings.

There would be no change in the dimensional requirements for the harborfront zoning district from those currently existing for these areas in their present unrestricted status.

The uses now permitted in the Harborfront District either as of right or by special permit are in essence those originally proposed (Exhibit No. 15C).

4. In addition to the change of one Harborfront District in the May 1980 town meeting by the adoption of Article 14, another Harborfront District was extended by Article 29, adopted at the May 1983 town meeting. The current dimensional regulations table of the Zoning By-Law for the various uses authorized in the Harborfront District appear in Exhibit No. 3.

5. Marblehead Transportation Co., a mooring service operation and a related entity to the plaintiff, occupies the building on Lot 5 on the Hancock Plan (Exhibit No. 14), and provides fuel, landings, and marine supplies to boats in the Harbor. Marblehead Landing, Inc. is a restaurant located on Philip C. Clark Landing, within the Harborfront District but not on the locus. Mooring Properties, another related entity, is located upstairs in the Transportation Co. building. Finally, Mooring Services, in which Mr. Blodgett is also involved, rents mooring equipment in place in the Marblehead and Salem Harbors and services equipment for third parties who have their own equipment. It also has a shop area in the basement of the condominium development.

6. Lot 1 on the Plan abuts Front Street, on which there are four buildings. One of these is very old and in it is a diner-type restaurant. The other three buildings were constructed by the plaintiff and were completed in early 1980. One building has an apartment on the second floor and offices and shops on the ground floor occupied by an electronics firm. Another was constructed for use by a single tenant, and since its completion has been used by three different tenants for marine-related purposes. The fourth building has two offices. The building on Lot 2 was built in 1950 with six apartments on the upper floors and commercial offices and shop space on the lower floors. It was converted to condominiums in 1983. Approximately 80% of the area in the building is commercial.

7. Lot 3 on the Plan is a vacant lot used for parking and access. Lot 5 has one building on it with two storage areas and is used by the Marblehead Transportation Co. There also is an ice house for ice storage. Finally, there are seven floats in the water adjacent to the plaintiffs' property, four of which are perpendicular to the seawall and are used mainly for rental. The three floats to the left are parallel to the seawall. There is a town park adjoining locus on the west.

8. A change in the construction of pleasure boats has led to a change in storage requirements, and many owners are no longer berthing their boats for the winter in the Harbor. In addition, the use of hydraulic lifts has resulted in different patterns of winter storage. These changes may have affected the viability of the use of the premises for marine-related purposes. The difficulties also have increased in finding tenants for the office space whose occupations are related to the sea (perhaps in part due to the economic flavor of the times). Rents derived from special purpose tenants are less than generally available from an unrestricted client base.

9. The area of the Harborfront Districts is not the only portion of Marblehead which affords access to the sea for those owning boats. There also are several yacht clubs in Marblehead, of which only one is situated within a Harborfront District. There also are many marine businesses located within the Town of Marblehead but outside the Harborfront District Zone, including marine clothing stores, boat yard, sail maker and the like.

10. The plaintiff has applied for two special permits for non-marine tenants, one of which was granted. The one that was refused was for a tenant who sold cellular phones with an emphasis on marine uses thereof. The validity of the denial of the special permit is not before the Court in the present posture of this case.

11. In 1662 the Town Meeting voted to have a public wharf constructed at State Street. This is adjacent to Tucker's Wharf. This area represents the center of the town's maritime history.

As the Supreme Judicial Court has so often stated, the court's role in deciding zoning issues is not fashioned by the judicial approval of a by law, but the question to be decided is "whether we can pronounce it an unreasonable exercise of power having no rational relation to the public safety, public health or public morals." Inspector of Buildings of Lowell v. Stoklosa, 250 Mass. 52 (1924), as quoted with approval by Justice Quirico in Crall v. Leominster, 362 Mass. 95 (1972) at page 101. In Crall, Justice Quirico went on to say "that if the unreasonableness of the zoning by-law or ordinance is fairly debatable, the judgment of the local legislative body responsible for the enactment must be sustained." In addition, "every presumption is to be made in favor of their validity, and that their enforcement will not be refused unless it is shown beyond reasonable doubt that they conflict with the applicable enabling act or the Constitution." A substantial relation must be shown between the amendment and the furtherance of the general objects of the enabling act. Lamarre v. Commissioner of Public Works of Fall River, 324 Mass. 542 , 545 (1949).

With that background, we turn to the question as to a Harborfront District. It is becoming increasingly apparent that cities and towns are enacting different zoning districts from those with which we are familiar in the past, i.e., General Resident, Commercial, Industrial. The cases reveal Marine Districts, Tahanto Associates, Inc. v. Board of Appeals of Bourne, 346 Mass. 762 (1983); Flood Plain Districts, Turnpike Realty Co. v. Dedham, 362 Mass. 221 (1972); the Shore Zone, Hines v. Planning Board of Edgartown, 24 Mass. App. Ct. 344 (1987); and Inland Wetland Districts, Farrugia v. Board of Appeals of Marshfield, 14 Mass. App. Ct. 720 (1982).

There seems no reason not to uphold such districts if they pass the Crall test. There must be some rational relationship, of course, to the purposes set forth in c. 40A, the enabling act. The Marblehead Harborfront District meets that test.

There is no doubt that a municipality may, from time to time, "re-examine the location of a boundary between districts and shift its location if sound zoning dictates so long as improper motivation is not a factor." Schertzer v. Somerville, 345 Mass. 747 , 751 (1963). It also is clear that one of the purposes sought by the enactment of the new zoning district was a lessening in the density of the area which theretofore had been unrestricted, as well as an attempt to enhance Marblehead's maritime flavor and its attraction, both for the yachting community and the tourists by a preservation of the marine flavor of the Harborfront District. In years gone by it has been said that aesthetics were not the proper concern of zoning or at least that aesthetics alone did not give validity to a by law. Barney & Carey Company v. Town of Milton, 324 Mass. 440 (1949), Turnpike Realty, supra, at page 229, but in John Donnelly & Sons, Inc. v. Outdoor Advertising Board, 369 Mass. 206 (1975), the Supreme Judicial Court recognized that within the phrase "general welfare" might be found a concern for the environmental quality of life and that there was a continuing interest in the Commonwealth in the improvement of the aesthetic environment of both cities and towns. Chief Justice Tauro then went on to state that there was a significant trend in recent cases to giving full recognition to aesthetics as a basis for land use planning.

In that same year of 1975, c. 808 was adopted by the General Court as a complete revision of the zoning enabling act which included in §2A a statement that the regulations might include "the development of the natural, scenic and aesthetic qualities of the community." It appears, therefore, that under present day legal standards the promotion of the marine nature of the Town of Marblehead is a legitimate objective of the Zoning By-Law, but the enactment of Harborfront District also provides regulations for the density of the residential development of properties within the zone which is a well recognized function of zoning.

The plaintiff attacks the zoning as being an invalid "spot", but it has long been recognized that it is not the size of the spot nor even whether a parcel has been singled out for less restrictive treatment than that of surrounding land of similar character, but whether the action had been taken solely for the economic benefit of the owner of the lot and not to serve the public welfare. See Lamarre v. Commissioner of Public Works of Fall River, 324 Mass. 542 , 546 (1949); Board of Appeals of Hanover v. Housing Appeals Committee, 363 Mass. 339 , 361-363 (1973). I find and rule that the present zoning was not an invalid creation of a spot zone but a determination that it was for the benefit of the public to create such a zone in Marblehead. Under the current version of c. 40A, there is no requirement that the same districts within a city or town be treated uniformly and greater discretion is given to local communities so long as the areas within a district are treated uniformly. G.L. c. 40A, §4. Accordingly, the Town of Marblehead was not required to zone each district where there were the predominant number of marine uses as a Harborfront District so long as the area which was so zoned had some rational basis for that designation, and I find and rule that this indeed was the case.

The plaintiff alleges that the requirements of the Harborfront District which limit uses therein adversely affect it economically but it is now well settled that this is not a valid objection where there is a valid exercise of the police power and there is not such a deprivation of uses as to result in an uncompensated taking. Loveguist v. Conservation Commission of Town of Dennis, 379 Mass. 7 , 19-20 (1979), MacNeil v. Town of Avon, 386 Mass. 339 (1982).

While I uphold the validity of the Harborfront District and the requirements therein that a special permit be obtained for non-marine related shops since it certainly is arguable that the nautical shops add to the ambiance of the area, there appears to be no rational basis for requiring a special permit for non-marine related offices. It would seem that "an office is an office is an office" and that the nature of the services therein provide no basis for discrimination, i.e., an office of an admiralty lawyer and a conveyancer, a marine architect and an architect, a yacht broker and a real estate broker, vary little in appearance. Indeed marine related offices are located in non-Harborfront Districts in Marblehead and have shown no disposition to move. Accordingly, I find and rule that the office classification as set forth in the by-law is arbitrary and unreasonable; therefore, the limitation of the type of office in a Harborfront District permitted as of right hereby is declared invalid and of no further force and effect and the premises within such Districts may be used as an office without the necessity of obtaining a special permit. The other uses, however, which now require a special permit within a Harborfront District remain subject to such requirement.

In view of my own findings of fact and rulings of law, I have not specifically addressed those filed by the parties.

Judgment accordingly.


[Note 1] Mr. Barker is no longer a general partner of Tucker's Wharf Limited Partnership.