EDWARD T. MOORE vs. THE TOWN OF MARBLEHEAD.

The complaint in this matter was filed on October 5, 1987. Pursuant to G.L. c. 240, §14A, the Plaintiff seeks a determination that, under the Marblehead Zoning By-law ("Zoning By-law"), a single family house may be built as described herein, on a lot belonging to the Plaintiff and located on Redstone Lane, Marblehead. The issues are whether or not the lot fronts on Redstone Lane or on a private right of way and, if fronting on Redstone Lane, whether or not a portion of the rear of the lot over which the right of way passes qualifies as rear yard area.

This cause came on to be heard on October 27, 1988 on the Plaintiff's motion for summary judgment. Arguments of counsel, affidavits and pleadings have been considered. I rule that there is no genuine issue of material fact, and therefore, the case is ripe for summary judgment pursuant to Mass. R. Civ. P. 56. Community National Bank v. Dawes, 369 Mass. 550 (1976).

I find the following facts pertinent and undisputed:

1. The Plaintiff is the owner of a lot ("Premises") containing 7,872 square feet as shown on a plan entitled "Plan of Land in Marblehead, Mass." dated March 24, 1987 by Hayes Engineering, Inc. (Exhibit "A" attached to Complaint). The lot is located in the General Residence (G-R) zoning district and is bounded on the north by Glover Landing Condominiums ("Glover"); to the west by Glover and two other lots; to the south by Redstone Lane, a public way; and to the east by the Dolphin Yacht Club ("Dolphin") and a single family residence.

2. A right of way, fifteen (15) feet wide, crosses the northerly end of the lot. This right of way was created in a partition deed dated September 9, 1853 by reservation therein as follows:

a right of way to said piece of land [now Dolphin's] over the land hereinafter set off to said Robinson and Hidden or land adjoining thereto or partly, over each of said pieces at the option of said Robinson and Hidden provided said Tucker [now Dolphin] has no other legal access to the said piece of land hereinbefore set off to him [Dolphin land].

3. The right of way provides the only means of vehicular access to and from Delphin's property and connects with the easterly end of Allerton Place, which appears to be a private way connecting with Town ways. Dolphin has ninety-two (92) members, including "family memberships". There is frequent use of the right of way by Dolphin's members and guests, particularly during the club's "season" which runs from April to November.

4. Sometime in March of 1988, the Plaintiff applied for and received a building permit. In connection therewith, he submitted a plan locating a proposed house on the Premises. This plan was amended in June of 1987. As amended, the plan indicates that the proposed building is at least 100 feet from Redstone Lane and approximately 15 feet from the northerly boundary of the lot and appears to be adjacent to the aforesaid right of way. Plans show garage doors on both the northerly and southerly faces of the building. The northerly face originally contained a conventional access door at ground level. On the amended plan, this door was moved to the westerly side of the building. It would appear that the entire basement is to be used as garage/storage area with living area on the floors above. Outside access to the second floor, or living area, is on the westerly side of the building and opens onto a porch from which stairs lead downward toward the northerly end of the building.

5. Prior to commencement of the construction, Defendant Glover Landing complained to the Marblehead Building Inspector that the Plaintiff's building did not comply with the requirements of the Zoning By-law. Upon a finding by the Building Inspector that the proposed construction was in compliance, Glover appealed the determination to the Marblehead Board of Appeals ("Board"), which after a hearing on November 24, 1987, determined that the proposal violated the Zoning By-law and accordingly, ordered the Building Inspector to revoke the Plaintiff's building permit.

6. At the time construction ceased, it appeared that the foundation of the building was largely completed.

As stated, there are two issues to be determined. First, whether the front lot line, or "Lot Line, Front" as defined by the Zoning By-law, is at the southerly end abutting on Redstone Lane, or on the northerly end abutting the right of way. The Zoning By-law definitions are not particularly helpful in this determination. Section II.lM defines "Lot Line, Front" as "a line separating the lot from a street or private way." The definition of "Lot Line, Rear", as stated in Section I I.1N of the Zoning By-law, offers some guidance in establishing that for a corner lot "the rear lot line shall be the line opposite from the street on which the principal building faces." Of course, the Plaintiff's lot is not a corner lot nor does the building face either a street or way. From the most recently filed plan, it appears that the building faces westerly, with its principal access, as noted by a Board member, apparently being via the right of way along the northerly end of the property to Allerton Place. Rather than determine the lot line by the placement of the building, or what appears to be the probable most convenient access route, a probability which could vary, I determine the front lot line to be on the undisputedly public, and most likely permanent access, Redstone Lane. While, as I find below, the northerly right of way is a private way, it is not a private way open to the public nor one "used and maintained as a public way." It is more in the nature of a driveway than a public way. As noted, I find nothing in the Zoning By-law (except for the inapplicable Section II.1N) which determines the "front" of the lot by the facing of the building or the generally used access. Indeed it would appear that the southerly garages can be accessed from Redstone Lane only. Moreover, where the Zoning By-law is specific as to corner lots and silent as to other lots, the determination of the front line in instances such as this should be that most favorable to, or chosen by, the land owner.

The second issue to be determined is whether or not the rear yard requirement may be satisfied by including a portion of the private right of way within the required area. In this regard, I find that the right of way across the northerly portion of the Plaintiff's land constitutes a private way. The Plaintiff's reliance on Gem Properties v. Board of Appeals of Milton, 341 Mass. 99 (1960) as distinguishing a "private way" from a "right of way" is misplaced. In deciding the GEM case, the court had before it the By-law of Milton which specifically defined and referred to "Private ways plotted . . . for ultimate public use." Further, I find no conflict with this finding and the first definition cited by the Plaintiff, i.e. "private way - a right which a person has of passing over the land of another." It is clear from the evidence that the area of the right of way constitutes "a passage, path, road or street" and hence comes within the definition of "way". Black's Law Dictionary (Fifth Ed. 1979); See also Webster's Ninth New Collegiate Dictionary (1984). In consideration of the foregoing, and the following Zoning By-law definitions: 1) Section II.1I "Lot Area", the horizontal area within the exterior lines of the lot exclusive of any area in a public or private street or way, . . . ; 2) Section II.1R "Street Line", the boundary line of the lot separating it from a public street or private way; and 3) Section II.1S "Yard", the open space at the rear of a building between the exterior walls of the building and the boundary of the lot upon which it stands, I find that under the Marblehead Zoning By-law the Plaintiff's structure is required to have an eight (8) foot set back from the southerly boundary of the right of way.

In accordance with the foregoing, it is therefore

ORDERED and ADJUDGED that the Plaintiff's lot as described herein fronts on Redstone Lane; and it is further

ORDERED and ADJUDGED that the private way crossing the northerly side of the Plaintiff's property does not constitute a portion of his rear lot yard, which for purposes of the Marblehead Zoning By-law must be measured from the southerly line of said way.

By the Court