The defendant Snow Inn Corporation ("Snow Inn") appealed from a decision of the Building Inspector and simultaneously petitioned (Exhibit No. 2) the defendant Board of Appeals (the "ZBA") for a public hearing for a continuation, change, extension or alteration of a nonconforming use to permit the following:
The removal of the existing buildings known as "Jetty House," "Deck House," and "Stevens House;"
The construction of an addition to the existing building known as "Sea View" which addition is to be connected to the existing building known as the "Wychmere Harbor Club;"
The construction of an addition to and remodeling of "Wychmere Harbor Club;"
The construction of an addition to and remodeling of the existing building known as "Towers House;" and
The construction of an addition to and remodeling of the "Snow Inn."
Such relief was sought, because two of the buildings on the locus were not in compliance with the setback requirements of the Zoning By-law of the Town of Harwich then in effect (Exhibit No. lC). The ZBA by decision filed with the Office of the Town Clerk on March 9, 1988 unanimously granted "the extension or alteration of the nonconforming structures with the conditions that no seating be allowed in the solarium and the conference rooms be restricted for use by guests only."
Four neighbors then appealed to this Court pursuant to the provisions of G.L. c. 40A, §17 although only one of them, Bancroft Wheeler, appears to meet the statutory test of a person aggrieved as most recently defined in Green v. Board of Appeals of Provincetown, 404 Mass. 571 (1989). The plaintiffs' principal contention is that the decision allows a massive reconstruction of the entire site in such a way that provisions of the zoning by-law are violated and that the Board erred as a matter of law in considering only the existing nonconforming side yard setbacks which the plaintiffs argue are only one aspect of the existing nonconformity.
A trial was held at the Land Court on May 11 and 12, 1989 at which a stenographer was appointed to record the testimony. Witnesses included J. Richard Fennell, the present owner of the locus in his capacity as trustee of Snow Inn Realty Trust, Shirley Fennell, the present chief operation officer of the Wychmere Harbor Hotel, Robert C. Blumenthal, a traffic expert for Snow Inn, Elizabeth D. Eggleston, an environmental expert witness for the Inn, Terry Wayne Eldredge, a registered land surveyor who prepared certain plans for the Inn, Robert Demmons, the designer of the complex called by the plaintiffs, the plaintiffs Wheeler, Rockwood and Brown, Charles J. Natate, Jr., an environmental expert witness for the plaintiffs, and Gail Robinson, a former employee of the Wychmere Harbor Club. Twenty-three exhibits were introduced into evidence which are incorporated herein for the purpose of any appeal. A view was taken by the Court in the presence of counsel on June 2, 1989.
On all the evidence I find and rule as follows:
1. For many years there has existed in the Harwichport section of Harwich a large complex adjacent to storybook Wychmere Harbor, one of Cape Cod's most picturesque locations, and developed originally many years ago by the Thompson family and continued by Eleanor Stevens, the widow of Frank Thompson. The major structures on the locus consisted of a) Thompson's Clam Bar with a deck overlooking the Harbor from which the passage of sailboats could be observed and to which there was access by boat as well as by car, b) Snow Inn, a Victorian Inn which in years gone by housed, among others, attendees at the annual meeting of the Massachusetts Bar Association and c) the Wychmere Harbor Club, a large structure with facilities for the entertainment of its members and their guests and the paying guests of an adjacent motel like structurer all now known as the Beach Club.
2. The family which had been the long time owners of the complex conveyed the locus and an adjoining parcel of registered land to Snow Inn Corporation by deed dated November 28, 1983, recorded with the Barnstable County Registry of Deeds, Book 3941, Page 100 and also registered with the Barnstable County Registry District of the Land Court (Exhibit No. 3). Subsequently title to the unregistered land was conveyed to J. Richard Fennell, Trustee of the Snow Inn Realty Trust by deed dated February 28, 1989 and duly recorded in Book 6643, Page 13 (Exhibit No. 4).
3. The parties have entered into a stipulation as follows:
1. On March 9, 1988, the Decision of the Board of Appeals of the Town of Harwich granting a special permit for a change, extension or alteration of a nonconforming use to the Defendant, Snow Inn Corporation, was filed with the Town Clerk of the Town of Harwich.
3. J. Richard Fennell, Trustee of the Snow Inn Realty Trust, is the successor in interest to Defendant Snow Inn Corporation and holds legal title to the real estate relative to which the special permit was granted.
4. The Board of Appeals complied with all relevant statutory requirements relating to notice of the Hearing before the Board.
5. The Plaintiffs complied with the procedural requirements of General Laws Chapter 40A, Section 17 in filing the Complaint in the instant case.
6. The Plaintiff, Bancroft R. Wheeler, is an aggrieved person within the meaning of General Laws Chapter 40A, Section 17.
7. The building known as the "Wychmere Harbor Club" and the building known as the "Snow Inn" do not comply with the set-back requirements of the Zoning By-law of the Town of Harwich, and said noncompliance constitutes a pre-existing nonconformity in accordance with the provisions of General Laws Chapter 40A, Section 6.
8. Part of the premises which are the site of the Project contemplated by the special permit granted by the Board of Appeals are shown on a Subdivision Plan which is recorded with Barnstable Registry of Deeds in Plan Book 400, Page 21.
9. The Subdivision Plan of the site evolved from a Preliminary Plan which was submitted to the Planning Board of the Town of Harwich on September 28, 1984, and written notice of such submission was delivered to the Town Clerk of the Town of Harwich on September 28, 1984.
10. The Subdivision Plan showing the site was submitted to the Planning Board for approval under the Subdivision Control Law on February 20, 1985, was approved by the Planning Board on April 16, 1985 and was recorded on June 17, 1985.
12. The existing square footage of building coverage as defined in the Zoning By-law is 64,740 square feet.
13. The existing square footage of site coverage as defined in the Zoning By-law is 242,120 square feet.
14. The square footage of site coverage as defined in the Zoning By-law upon completion of the Project will be 240,920 square feet.
15. The square footage of building coverage as defined in the Zoning By-law upon completion of the Project will be 85,865 square feet.
16. The existing square footage of coverage as defined in Section VI D. 6. of the Zoning By-law is 150,250 square feet.
17. The square footage of coverage as defined in Section VI D. 6. of the Zoning By-law upon completion of the Project will be 120,100 square feet.
18. The number of parking spaces as defined in the Zoning By-law existing on the site is 268. The number of existing parking spaces using the "stack" valet parking system is 345.
19. The number of parking spaces as defined in the Zoning By-law contemplated by the Project is 315. The number of proposed spaces using a "stack" valet parking system is 388.
20. There are at least 118 guest rooms presently on the property.
21. The number of guest rooms which will be on the site upon completion of the Project is 154.
The other provisions of the stipulation relate to the admissibility of certain exhibits and need not be perpetuated in this decision.
A copy of the plan referred to in the stipulation is attached hereto as Appendix A.
4. Said Section VI D. 6. of the Zoning By-law reads as follows:
6. On a lot used for multi-family, hotel or motel purposes, parking lots, roads, streets, tennis courts, swimming pools and like amenities and facilities shall not cover more than 15% of the area of the lot. . . .
5. Exhibit No. 25 is an enlarged version of a plan entitled "Plan of Land in Harwich Port, Massachusetts Prepared for Snow Inn Corporation", dated December 2, 1987, Revised February 8, 1988 by Terry W. Eldredge, R.L.S. It shows the line of Mean High Water and of Extreme Low Water. On the exhibit appears a red line placed by the plaintiff, George Rockwell, who is an experienced sailor but not a professional in land surveying. The red line represents Mr. Rockwell's estimate of the line of mean low water.
6. Exhibit No. 7 is a plan entitled "Prepared Site Plan of Land in Harwichport, Massachusetts Prepared for Moran Research Labs, Inc. dba Snow Inn", dated January 4, 1988, also by Mr. Eldredge. This depiction shows the lines of the various tidal readings, including the 1989 mean high water mark and the line of extreme low water as located on November 3, 1987.
7. The shoreline of the locus has been accreting annually by approximately five to six feet. Snow Inn each morning mechanically removes the accumulation of seaweed from its beach and piles the fruit of the sea against the large stone jetty which forms the south-easterly boundary of the locus. The jetty was constructed by the federal government, and it is the prime cause of the accretion rather than the mixture of sand with the seaweed and its placement on locus.
8. The alterations to the existing facilities (which are shown on the latter two plans) include:
a) the decrease in dining capacity of the Beach Club by fifty tables;
b) the construction of a second floor on the Club building with an atrium over the present swimming pool, and the addition of conference rooms and a dining room for conference guests.
c) the relocation of the present swimming pool and the removal of the tennis courts;
d) the addition of cedar shingles to the building known as Sea View which will be otherwise unchanged.
e) no changes are contemplated in the Channel House or the Clam Bar;
f) the Jetty House and the Stevens House are to be demolished;
g) the Towers Building, now two stories will be increased to four stories;
h) the Deck House also will be similarly increased in height and its footprints enlarged to about where the Jetty and Stevens Houses were; and
i) additionally the Deck House is to be connected to Sea View with an indoor swimming pool located in the connection; and to the Beach Club by an elevated walkway under which cars will pass.
9. The approach to Snow Inn is on a town road approximately twenty-five (25) feet wide which characteristically of Harwich has no sidewalk. The road extends from Route 28, a Massachusetts State Highway to a point about 430 feet southerly from the northerly boundary of locus. In the past traffic back-ups were common as cars waited to be directed to the left for the Clam Bar or straight ahead for the Club. During weekend evenings in the summer, it was not unusual for the traffic to reach Route 28 and even to stack up thereon in the direction of Harwichport (to the west). The neighbors frequently were caught in the line to their understandable annoyance. The condition has been alleviated by an increase in prices at the Clam Bar and consequently a decrease in the number of meals served (although not in gross revenues). It also has helped to have employees of the defendant Snow Inn check the lines of traffic and direct the waitees to their destination and out of line if Beach Club bound.
10. In years past supplies were delivered to the site by "ten wheelers." The plaintiff has changed this procedure by having deliveries made to the former Bradford Hardware building on Route 28, easterly of Snow Inn Road toward Chatham, from which actual deliveries to the property are made by smaller vehicles.
11. Other than at the Channel House, not involved in the current dispute, employee parking has been eliminated from the site, and employees are required to park at the Route 28 premises. Parking at Channel House is limited to approximately fifteen or twenty employees.
12. Snow Inn was renovated previously as was the Clam Bar and the changes are not of concern here other than as the number of rooms and parking spaces are affected thereby. In connection with the Snow Inn renovations a waste water treatment plant was installed with a capacity of 80,000 gallons per day. The second phase of the plant construction is scheduled for completion in connection with the contemplated renovations. The size of the plant was based on the maximum flow weeks when flow reached 79,560 square feet per day in August 1986.
13. The stench generated by the absence of sewers has led one of the plaintiffs to lose tenants in years gone by, but admittedly the new plant has greatly improved the condition. As in any area where commercial and residential uses adjoin, there are problems of noise and lighting, but those appear to be of a minimum nature.
14. The present number of guest rooms on the locus is at least 118; with the completion of the improvements Snow Inn contends that the total number of bedrooms will be 154 whereas the plaintiffs argue that the living rooms which form part of the suites have a potential for conversion to bedrooms and also should be counted. Consideration of the bedrooms only is a permissible approach for a town to elect to follow.
15. The Harwich zoning by-law provides in Section lX A as follows:
If any structure is constructed, enlarged or extended, and any use of land established, or any existing use is changed, after the effective date of this By-Law, offstreet parking and loading spaces shall be provided in accordance with Table 4. An existing structure which is enlarged on an existing use shall be required to provide off-street parking spaces in accordance with the following table for the entire structure or use, unless the increase in units or measurements amounts to less than 25 percent, whether such increase occurs at one time or in successive stages.
Table 4 requires in the case of restaurants "one space for each four units of rated capacity" and in the case of guest houses, motels, hotels or multi-family dwellings "one and one-half spaces per rental or dwelling unit".
Finally the by-law defines parking space as at least nine (9) feet in width and twenty-one (21) feet in length on its shortest side for angle parking, having an area of not less than one hundred eighty-nine (189) square feet, plus access and maneuvering space.
16. Section XJ of the by-law affords the following protection to nonconforming uses:
Pre-existing non-conforming structures or uses may be changed, extended or altered on special permit from the Board of Appeals, provided that no such change, extension or alteration shall be permitted unless there is a finding by the Board that such change, extension or alteration shall not be substantially more detrimental to the neighborhood than the existing non-conforming use.
17. There is another provision of the Harwich zoning by-law, not referred to by counsel, but which should be noted. It is the definition in Section II of a lot as "a parcel of land described in a deed, or shown on a plan of land." The definition section further provides:
For the purpose of this By-Law, in determining the minimum area requirements of all lots hereafter laid out, areas of lowland, marshland, swampland, wetland, peat or muck shall be permitted to constitute nor more than twenty-five (25%) percent of the minimum lot area required by this By-Law. To be buildable, all lots hereafter laid out must contain upland area totaling at least seventy-five (75%) percent of the minimum area requirements established by this By-Law. Provided, however, the total lot area of any parcel situate in a zone wherein multi-family, hotel or motel uses are permitted can be used to compute the maximum allowable number of units which can be constructed on said lot.
18. Snow Inn has designed the changes which they wish to make to attract conference business in addition to their present hotel clientele during the season. Accordingly, the Inn hopes to upgrade the existing facility to appeal to business and educational groups in the Cape Cod off season. The nonconformity to which the parties have stipulated (although it is of the two structures and not the use) is of a minor nature. If the side line requirements were not presently violated, the plaintiffs would have no recourse to object to the changes unless they were able to establish that the contemplated work violated some provision of the zoning by-law. That appears to have been the reason why the Chairman of the ZBA limited the hearing to problems engendered by the nonconforming nature of the complex and not to those anticipated from the resulting improvements but which Snow Inn argued they had the right to make were it not for the technical violations. The plaintiffs recognize this and mainly have based their attack on the Board's action on the ground that Snow Inn's plans to violate present requirements.
General Laws, Chapter 40A section 6 which is controlling here reads, as interpreted by the Appeals Court in Willard v. Board of Appeals of Orleans, 25 Mass. App. Ct. 15 (1987) as follows:
Pre-existing non-conforming structures or uses may be extended or altered, provided that no such extension or alteration shall be permitted unless there is a finding by the permit granting authority or by the special permit granting authority designated by ordinance or by-law that such charge, extension or alteration shall not be substantially more detrimental than the existing nonconforming [structures or,] use to the neighborhood.
The plaintiffs impugn the good faith of Snow Inn by suggesting that the intention can be readily change to eliminate fifty tables from the Beach Club restaurant and to have a parlor accompanying a suite; the former, it is argued, can easily be replaced and the latter living room readily transformed into another bedroom. If that should prove ultimately to occur in such a way as to violate the zoning by-law, then the remedy of the plaintiffs is a request to the building inspector to enforce the law. For purposes of this appeal the Court has assumed that Snow Inn will adhere to its stated plan.
The statute permits an extension of a nonconforming structure and its alteration so long as the change, extension or alteration is not substantially more detrimental. The by-law provision is basically the same. In many instances as appears from the stipulation the relevant numbers are less intense than the present use. The plaintiffs, however, focus on four areas in particular: the actual lot size, the septic system, the parking and other traffic problems, and the removal of certain structures.
In Becket v. Building Inspector of Marblehead, 6 Mass. App. Ct. 96 (1978) the Appeals Court construed the Marblehead zoning bylaw as including an area of tideland to make up the required minimum lot area. There are specific provisions in the Harwich Zoning by-law which govern some aspects of this problem in that seashore community. The focus in the present case, however, has been as to the extent of private ownership, whether to mean low water or to extreme low water. There are many appellate decisions in this Commonwealth in which the phrases are used interchangeably without any discussion of the obvious variation between the two. As recently as 1939 in Iris v. Hingham, 303 Mass. 401 the Supreme Judicial Court has written that private ownership extends to extreme low water or to one hundred rods from ordinary high water mark if low water lies beyond that distance. This, of course, is not a proceeding to fix the line of the flats, an area also of Land Court jurisdiction, and necessary parties are not before the Court. Sufficient to say that for the purposes of this zoning litigation, the Supreme Judicial Court's statement in the Iris case may be followed.
The plaintiffs also argue that accretion is attributable to the actions of Snow Inn in removing the seaweed and not by natural forces. As my findings set forth, the presence of the jetty is the primary cause of the accretion, not the action of the landowners.
The plaintiffs are concerned that the new septic system now in its second stage of construction will be inadequate to treat the additional hotel rooms, the new swimming pool and the conference facilities. There was expert testimony to the contrary on which I rely as to the question of the detrimental effect.
PARKING AND TRAFFIC
The Harwich by-law attempts to require a nonconforming structure to meet current parking requirements, at least if there's a change. It seems apparent that section 6 protects any existing inadequacies, and that only additions need comply unless perhaps a particular Board of Appeals may find a failure to do so a substantial detriment, a factual situation reserved for another day. The plans include an increase both in parking spaces and in valet parking which is more intense in the stack system used than that contemplated by the by-law but which is not proscribed therein.
The stipulation shows that there will be thirty-six more bedrooms when the work has been completed than at present which would require an additional fifty-four parking spaces rather than the forty-seven the stipulation sets forth. The Board, under the wording of section 6, was not required to find the difference impermissible.
The traffic counts done on a cold and rainy October weekend are unpersuasive as compared to summer statistics. The more meaningful evidence as to traffic problems consist of the steps taken by Snow Inn to alleviate past problems and the success met by such efforts. The principals of Snow Inn appear committed to the resolution of problems with which the neighborhood has been inflicted, and they accordingly have rerouted their deliveries, moved the employee parking and attempted to resolve the Snow Inn Road back-up.
REMOVAL OF NONCONFORMING STRUCTURES
The plaintiffs finally complain that the plans contemplate the removal of nonconforming existing buildings and their reconstruction. The evidence, however, was to the effect that certain existing structures were to be removed and others increased in height and extended, but there was no evidence that the latter were nonconforming in any way.
On all the evidence therefore I find and rule that the improvements for which Snow Inn sought approval from the defendant ZBA met the statutory test set forth in section 6 as well as that in the zoning by-law, that they are protected by such provisions and that the decision of the Board of Appeals was free from error.