MISC 127903

November 3, 1989

Suffolk, ss.



On May 6, 1988, Joseph P. Marchese, Jr., Trustee of the 425 Boulevard Realty Trust ("Plaintiff"), filed an action in the Land Court seeking a determination, pursuant to G.L. c. 240, §14A, as to the applicability of the Zoning Ordinance of the City of Revere ("Ordinance") to the renovation of a building situated on certain property owned by him, located at 425-425R Revere Beach Boulevard in Revere ("Locus"), and as to the uses proposed therefor. By this action, the Plaintiff also seeks judicial review, pursuant to G.L. c. 40A, §17, of a decision of the Defendant, Revere Board of Appeals ("Board"), upholding the determination of the Revere Building Inspector, Stanley Ferragamo ("Building Inspector"), that the Plaintiff cease all renovation work being performed at Locus, that no further building permits relative thereto to be issued and that the Plaintiff's proposed use of the premises as a general retail store and restaurant be barred in the absence of a special permit.

A trial was held in the Land Court on February 22 and June 26, 1989, at which times a stenographer was appointed to record and transcribe the testimony. Four witnesses testified, thirty-two exhibits were introduced evidence and one chalk was presented to assist the Court. All exhibits and chalks are incorporated herein for purposes of any appeal.

On all of the evidence, I make the following findings of fact:

1. In July of 1984, the Plaintiff acquired title to Locus by deed from one Herbert B. Frost, recorded at Book 11054, Page 172 in the Suffolk County District Registry of Deeds (Exhibit No. 1).

2. Locus is comprised of two parcels of land. As shown on the sheets filed with the Revere Assessors' Office (Exhibit No. 10) and a plan entitled "Plot Plan in Revere, Mass.", dated May 23, 1986 ("Plot Plan") (Exhibit No. 29), the first parcel contains 40 feet of frontage on Revere Beach Boulevard and 5,196 square feet of land. The second parcel is located in the rear of the first and is depicted on said sheet and plan as a lot consisting of 1,800 square feet of land, for a total area of 6,996 square feet.

3. The official zoning map of the City of Revere, as described in Section 17.12.020 of the Ordinance, is the map entitled "City of Revere Massachusetts Zoning Map 1983 No. 1", dated February 28, 1983 (Exhibit No. 8). As depicted thereupon, the "General Business" zoning district, which is described in Section 17.16.040 of the Ordinance, extends approximately 572 feet easterly from the tangent point of Oak Island Street. (See Exhibit No. 9). As measured on the Zoning Map, Locus lies within the "General Business" zoning district.

4. Pursuant to Section 17.16.040 of the Ordinance, restaurants and general retail sales/services uses are allowed as of right in the "General Business" zoning district. Fast-food, take-out and drive-in restaurant uses, however, are only permitted in such zoning district by special permit.

5. The dimensional regulations pertaining to structures located in the "General Business" zoning district, are set forth in Section 17.24.010 of the Ordinance as follows:

1. Minimum Sq. Ft. 4,000

2. Lot Area Frontage (Ft.) 40

3. Yard Dimensions

a) Front (ft.) N/A b) Side (ft.) N/A c) Rear (ft.) N/A

4. Usable Open Space (% of total area) N/A

5. Maximum Princioal Building Coverage (percent) N/A

6. Maximum Height (ft.) 50

7. Maximum Stories 5 8. Maximum Fence Height (ft.) 10

The record before the court reveals that the structure fronting on Revere Beach Boulevard, as proposed by the Plaintiff, is in conformance with these dimensional regulations.

6. On December 22, 1986, the Plaintiff submitted a building permit application to the Building Inspector for the City of Revere ("Building Inspector"). This application, dated December 19, 1986, contains the following remarks by the Plaintiff with regard to the structure fronting on Revere Beach Boulevard:

This will merely be restoration of the present building without an addition. My intent is to upgrade the present windows and to install where needed those that are defective . . . .

7. The Revere Planning Review Committee granted the Plaintiff's application for a building permit on December 30, 1986 (See Exhibit No. 3). Thereafter, on January 6, 1987, the Building Inspector issued the Plaintiff Building Permit No. 7130 (See Exhibits No. 4 and 5), which authorized the Plaintiff to renovate the existing structure.

8. The Plaintiff commenced work on the front structure in January of 1987. While raising the structure in order to install new footings, the right rear portion of the structure collapsed. Thereafter, in accordance with the Building Inspector's orders, the Plaintiff removed the deteriorated portion of the structure from the premises. In addition, the Plaintiff furnished the Building Inspector with a set of floor plans reflecting the work remaining to be done on the premises (See Exhibit No. 17), as well as an engineer's report (Exhibit No. 16) on the remaining structural work. The Building Inspector approved the plans and report in about June of 1987. Shortly thereafter, the Plaintiff resumed work on the premises, such work including the installation of new footings, foundation, framing and the replacement of the structure's existing windows, siding and roof.

9. By letter dated September 2, 1987 (Exhibit No. 11), the Building Inspector ordered the Plaintiff to cease further construction at Locus on the grounds that such work exceeded the scope of the Plaintiff's original building permit. In this letter, the Building Inspector stated that such work must cease until new plans and specifications are submitted to the the Building Inspector for his approval.

10. On September 27, 1987, the Plaintiff instituted an action in Suffolk Superior Court, seeking an order restraining and enjoining the Building Inspector from interfering, preventing, impeding and ordering the Plaintiff to cease with the renovations and restoration of the two dwellings situated on Locus until both buildings are totally renovated and restored (See Exhibit No. 13).

The Plaintiff and the Building Inspector subsequently entered into an Agreement for Judgment on October 5, 1987, which Agreement reads as follows:

That the . . . Building Inspector and relevant agencies of the City of Revere be restrained and enjoined from interfering, preventing, impeding and ordering the Plaintiff to cease with the renovations and restorations of 425 Revere Beach Boulevard, Revere, MA in the entirety; Both the interior and exterior according to the plans filed and the permit granted by the Defendant, i.e. for two (2) apartments within the structure consisting of two (2) bedrooms, kitchen, bath and living area; and of 425 Revere Beach Boulevard, Revere, Mass. (front building) the Plaintiff shall complete the exterior to protect the structure from the weather; and the Plaintiff shall prepare applications and submit plans to the . . . Building Inspector and Board of Appeals for the City of Revere in order to assure compliance with the applicable zoning by-laws of the City of Revere, along with any corresponding fees. (Exhibit No. 14)

11. In conjunction with the parties' ongoing dispute with respect to Locus, the Building Inspector informed the Plaintiff, by letter dated January 19, 1988 (Exhibit No. 18), that Locus is situated in a "Residence C1" zoning district and that, according to Sections 17.16.300 and 17.16.310 of the Ordinance, the Plaintiff's use of Locus for general retail sales or restaurant (non-fast food) purposes would require a special permit.

12. On January 20, 1988, the Plaintiff submitted a new application for a building permit to the Building Inspector. A set of floor plans was filed with the Building Inspector on January 26, 1988 (Exhibits No. 16 and 17). By this application, the Plaintiff sought "to restore and renovate the existing structure, to modify wherever need be, in order to prevent the structure from being a danger to the public. . ."

13. On January 29, 1988, the Building Inspector informed the Plaintiff that his building permit application was denied due to pending litigation and the failure of the aforesaid floor plans to conform to present zoning requirements for front, side, area and parking regulations (See Exhibit No. 20). Thereafter, a notice to stop work (Exhibit No. 25) was placed on the structure fronting on Revere Beach Boulevard. This notice was based on the Building Inspector's conclusion that Locus lies in the "Residential Cl" zoning district.

14. On February 18, 1988, the Plaintiff appealed the Building Inspector's decision to the Board (See Exhibit No. 22), which appeal was subsequently denied by the Board on April 13, 1988 (See Exhibit No. 24).

In consideration of the foregoing, I find and rule that Locus lies in the "General Business" zoning district of Revere and that the structure situated on Locus, fronting on Revere Beach Boulevard, as proposed by the Plaintiff, complies in all respects with the dimensional regulations applicable to structures located in such zone. I further find that, so long as the aforesaid structure remains in compliance with such regulations, the same may be used as of right for restaurant or retail sales/services purposes. The premises may only be used for take-out, drive-in or fast-food restaurant purposes upon the issuance of a special permit from the local permit granting authority.

In so finding, I rule that the decision of the Revere Board of Appeals, dated April 13, 1988, affirming the Building Inspector's determination that no further building permits relative to Locus be issued to the Plaintiff, exceeded its authority and, accordingly, must be annulled. See MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 639 (1970); Garvey v. Board of Appeals of Amherst, 9 Mass. App. Ct. 856 (1980); Gordon v. Zoning Board of Appeals of Lee, 22 Mass. App. Ct. 343 , 348 (1986). The Plaintiff may thus reapply for a building permit authorizing the restoration and renovation of the structure situated upon Locus, fronting on Revere Beach Boulevard, in accordance herewith.

Judgement accordingly.