WILLIAM R. RICHARDS vs. ALEXANDER KRAVCHUK, DREW ZABRISKIE, GERALD LARSON, DOUGLAS MacBURNIE, RUSSELL HUSSEY, JR. and RICHARD LAMOTHE, as they are the BOARD OF APPEALS OF THE CITY OF NEWBURYPORT.

The plaintiff, William R. Richards, owns a house which sits astride the Plum Island Turnpike, as it has for many years, in the City of Newburyport. The plaintiff understandably sought a variance to move the nonconforming structure from the road layout onto the small part of his lot suitable for construction, but the proposed location of which he understood to require front and side yard variances and for alteration of a nonconforming structure. The necessary relief was originally granted by the defendant Board of Appeals (the "ZBA") but after a delay occasioned by environmental considerations the ZBA denied a second application. This appeal pursuant to General Laws, c. 40A, §17 followed. The ZBA argues that the plaintiff is not entitled to relief pursuant to the provisions of G.L. c. 40A, §10 and Section IX of the Newburyport zoning ordinance as in effect when the Board of Appeals rendered its decision (Exhibit No. 3) or at present (Exhibit No. 12).

A trial was held at the Land Court on March 24, 1989 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. Witnesses called by the plaintiff were the plaintiff himself, William Decie, his environmental consultant and James Gaines, Director of Planning and Development for the City.

On all the evidence I find and rule as follows, some of the matters having been agreed to by the parties.

1. The plaintiff acquired title to a parcel on Plum Island Turnpike in said Newburyport shown as Lot B on a plan entitled "Plan of Land in Newburyport, Mass. Owner, Check Realty Trust", dated June 10, 1977 by Port Engineering Associates, Inc., duly recorded with Essex South District Deeds (to which all recording references refer) Book 7424, Page 476 (Exhibit No. 2), by deed from Nancy Marrone dated May 30, 1984 and duly recorded in Book 7424, Page 476 (Exhibit No. 1). It is commonly known as 301 Wales Street.

2. The plan shows Lot B as having a frontage on Plum Island Turnpike of 100 feet and an area to low water mark of 10.5 acres. It is bounded on the northwest by Lot A on the plan and on the southeast by a public landing. It is unclear from Exhibit 2 and from a plan entitled "Plan of Winder's Landing in the city of Newburyport Showing Location As Ascertained by the County Commissioners" dated July 1947 by Clinton C. Barker (Exhibit No. 7) whether the landing abutting locus on the southeast is Winder's Landing or whether that is the northwest of the present site. Mean high water lies some distance east of the proposed building. In any event there is a public landing to the southeast.

3. The plaintiff's grantor acquired title to Lot B from Samuel Checkoway, Trustee of Check Realty Trust. Prior to the conveyance the Commissioner of Natural Resources had imposed restrictions on certain land adjacent to and including the locus by an order entered pursuant to the provisions of G.L. c. 130, §105 by instrument dated July 31, 1969 and recorded in Book 5641, Page 190 (Exhibit No. 11A). Litigation followed, and a final decree was entered by the Essex Superior Court that the Commissioner's Order was not to apply to a portion of Checkoway land (including present locus) fifty feet in width and parallel to Water Street (the description of which I interpret to include Plum Island Turnpike) (Exhibit No. 11B).

4. The existing single family home on the locus referred to by the City as a "shack" but appearing otherwise from the City's own photographs (Exhibits No. 14A, 14B and 14C) was constructed many years ago and may predate the 1905 layout of Plum Island Turnpike. When it was purchased by the plaintiff in 1984, it was rented to third parties. The interior of the dwelling was attractive with bay windows overlooking the water. The house had electric baseboard heat, a full bathroom and a full kitchen and was connected to town water and sewer. The plaintiff subsequently terminated the tenancy in order to embark on his efforts to improve the premises. He himself did thereafter occupy the property for a short period of time.

5. The house, in spite the improvements noted above, did encroach on the public way as laid out although not on the paved portions and accordingly the plaintiff sought permission to move the existing building completely onto the lot or to construct a new one. This relief was granted by the then ZBA by decision dated November 16, 1984 (Exhibit No. 29).

6. The plaintiff then sought approval from the Conservation Commission for the proposed new construction which was denied. A superceding order was entered by the Department of Environmental Quality Engineering ("DEQE") and was duly recorded in Book 9244, Page 321 on October 22, 1987 (Exhibit No. 9). The plan which accompanied the petition showed the replacement structure to be situated nine feet from the street. It will be about seventy feet from mean high water.

7. By the time of the hearing, before the DEQE, which closed on April 22, 1986, the one year statutory limit on variances as set forth in G.L. c. 40A, §10 arguably had lapsed. [Note 1]

8. Thereafter in August of 1987 the plaintiff, as stipulated by the parties, "filed with the Board of Appeals an application for a variance to waive the side and front setback requirements of the Zoning Ordinance and to alter a nonconforming use."

9. The parties further stipulated that:

Pursuant to notice published and mailed, a public hearing was held on October 27, 1987. A decision resulting from said hearing denying the application was filed on November 12, 1987 with the City Clerk of Newburyport. As required by the provisions of General Laws Chapter 40A, Section 17 there is attached to the Complaint, as Exhibit F, a copy of the decision bearing the date of filing and certified by the City of Newburyport City Clerk.

10. The locus is situated in an Agricultural / Conservation District as it was in 1984.

11. After the grant of the 1984 variance the plaintiff repaired the roof of the house and was in the process of repairing the exterior when he was advised that a building permit was required. The Conservation Commission refused to sign off despite the DEQE superceding order, and no permit was issued. Since that time the building has been vandalized, and its condition has deteriorated.

12. Much of locus is a salt marsh or mud flats and subject to wetland restrictions. Indeed at extreme high water substantially all of locus is underwater. There is, however, an area of ledge underlying that part of locus within seventy feet of the turnpike. There's about two feet of surface peat, a sand layer of two to four feet and then the ledge. The locus varies from the property to the east where there is a tidal inlet and the tidal marsh is closer to the road so the ledge backs off. In the opposite direction wetlands vegetation comes closer to the road so there may be a deeper peat layer. There are different layers of peat which are important in the clarification of the nature of the property.

13. The work as authorized by DEQE and at its suggestion will employ the caisson method. A boring will take place with a three foot casing going down about six feet to ledge with steel jaybars attached by hand to the ledge and concrete then poured into the casing up to where the floor joists will be.

14. The presence of cattails and of the sparteens and the Court decreed fifty foot line all impact on the site and affect the selection of the location where the house can be placed.

At least as between the City of Newburyport and the plaintiff [Note 2] he is entitled by virtue of the provisions of G.L. c. 40A § 6 to alter, reconstruct, extend or structurally change the existing building so long as this is done within the existing footprint of the single family residential structure. This Court has so held in a series of recent decisions such as Ligue v. Town of Nahant Zoning Board of Appeals, Land Court Miscellaneous Case No. 124421 (June 20, 1988) which follow the lead of the Appeals Court in Fitzsimonds v. Board of Appeals of Chatham, 21 Mass. App. Ct. 53 (1985). The limitation in section 6 as to non-conforming area and structures abandoned or not used for a period of two years or more has no application here, for the plaintiff has either used or has continually sought permission to use his property. The factual situation here is clearly distinguishable from Bartlett v. Board of Appeals of Lakeville, 23 Mass. App. Ct. 664 (1987).

Since it is therefore clear that the plaintiff may maintain the present building, it would seem more desirable from a public policy point of view that it be removed from its present location within the layout (although off the paved portion) of the way. The only possible site because of the constraints imposed by the soil conditions, the c. 130 order, and the decision of DEQE is only nine feet from the side line of the public way rather than the fifty feet required by the dimensional requirements of the Newburyport Zoning Ordinance. The ordinance has a similar requirement for side yards, but both versions of the ordinance in evidence (Exhibits 3 and 12) provide substantially as follows:

Where a side or rear yard of a structure is adjacent to a park, cemetery, or other permanent public open space, all but ten (10) feet of the required yard may be measured from the center of the open space.

To the Southeast of locus is a public landing as shown on the Assessors' plan (Exhibit No. 6) and other plans in evidence. By application of the above provision as to interpretation of the side yard requirements and with the width of the public landing as shown by the record the proposed side yard is in compliance with the ordinance which need not be varied. Insofar as the other side yard is concerned it apparently is not in violation as no relief was requested.

The sole remaining issue in the case therefore is whether the Board erred in refusing to grant a variance of the front line set back, and I find and hold that it did.

Section 10 of chapter 40A of the General Laws gives the ZBA the power to grant a variance where the board specifically finds that owing to circumstances relating to the soil conditions, shape or topography of the land and especially affecting it but not affecting generally the zoning district in which it is located a literal enforcement of the provisions would involve substantial hardship to the plaintiff and that substantial relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent and purpose of such ordinance.

Variances are sparingly granted, and the refusal by a board to vary the application of the provisions is rarely reversed. In the present case, however, the plaintiff has a non-conforming structure encroaching in a public way which he is entitled to alter, repair and maintain under the zoning laws. He was granted a previous variance which he was prevented from utilizing by the Conservation Commission, DEQE has now granted him permission to build on the only possible portion of his land, the existence of the ledge in proximity to the street with other areas forbidden to construction because of the vegetation protection by wetlands policy and the Chapter 130 order all make this site unique. If the history of the property was different, the position of the ZBA would prevail, but under all the circumstances here, I find and rule that the variance for which the plaintiff prays is to issue. Each party has filed requests for findings of fact and rulings of law. I have not dealt with them specifically since I have made my own findings of fact and rulings of law.

Judgment accordingly.