MISC 128067

June 2, 1989

Essex, ss.




The plaintiffs, Edward T. Moore in Miscellaneous Case No. 128067, and J. Alan Chew, Trustee of Nine Cliff Street Realty Trust, in Miscellaneous Case No. 128325, have both appealed pursuant to the provisions of G.L. c. 40A, §17 from the denial by the Board of Appeals of the Town of Marblehead of their applications for special permits in the Coastal Overlay District ("COD"). Each complaint contains a count pursuant to the provisions of G.L. c. 185, §1 (j 1/2) and c. 240, §14A , attacking the facial validity of the COD pursuant to which each plaintiff applied for a special permit. There is no dispute that the plaintiffs would be entitled as of right to construct the single-family residence for which they seek permission if it were not for the provisions of the COD which affect the area of Marblehead situated within 300 feet of the mean high water, as well as the lands between mean and low high water, from the Swampscott town 1ine to the city/town line with Salem. The area within which the Moore premises are situated is a Single Residence District and the Chew premises a General Residence District; the lots and the proposed buildings meet all requirements of the underlying districts.

The plaintiffs attack the COD as violative of the principal of SCIT, Inc. v. Planning Board of Braintree, 19 Mass. App. Ct. 101 (1984) which held invalid the requirement of the Braintree Zoning Law which mandated a discretionary special permit for uses otherwise permitted in a Business District. The Appeals Court held that such a provision conflicted with the uniformity requirements of G.L. c. 40A , §4 and could not stand. SCIT involved what Chief Justice Greaney described as separate provisions of the by-law "[a]rching over all uses in a business district", in fact an overlay. The overlay in SCIT, however, was limited to business districts, whereas the extensive geographical expanse of the present COD superimposes it upon many various zoning districts in the town and raises problems grounded in the Braintree doctrine, but also as to the uniformity requirement within each zoning district if indeed such provisions of c. 40A, §4 apply to an overlay.

Customarily, concepts such as a COD would be adopted by the legislature since it is comparable in many ways to a historic district of which there are several in the Commonwealth created by the General Court upon local petition. The Overlay Districts which heretofore have been created by local zoning authorities generally deal with wetlands, whether coastal or inland. See, for example, Fogelman v. Chatham, 15 Mass. App. Ct. 585 (1983). The question as to the validity of the COD as a concept in Massachusetts zoning laws is not reached in this decision, however, since I find that certain provisions thereof impose invalid requirements for the issuance of a special permit and that accordingly the by-law must fall.

Section 1.5 of the Marblehead Zoning By-Law relating to special permits set forth criteria that the Board of Appeals is to consider before granting a special permit. I do not address the validity of these provisions in this decision, but consider only the additional criteria which Section 1.5C provides the Board of Appeals is to utilize, where applicable, before granting a special permit:

a. The extent to which the structure and use wi1l maintain, promote and secure current and future water­dependent development, particularly marine services.

b. The extent to which the structure and use will encourage water and shoreline uses that preserve the natural amenities, protect marine ecosystems, and enhance the cultural heritage of Marblehead.

c. The extent to which the structure and use are, or can be made compatible with the character of the existing neighborhood, so as not to impinge unduly upon that character and the existing uses in the area.

d. The extent to which the structure and use will maintain and provide walkways and other public access to the waterfront.

e. The extent to which the structure and use preserve or enhance view corridors both towards and from the waterfront, and preserve or enhance the aesthetic qualities of a natural shoreline.

f. The extent to which the proposal does not exceed any applicable dimensional regulations of the underlying zoning district, but rather under-utilizes those regulations.

g. The extent to which any aspect of the proposal is not located within or above the area between mean high tide and mean low tide.

G.L. c. 40A , §9 does not provide standards for the issuance of special permits although it does require that they may be issued "only for uses which were in harmony with the general purpose and intent of the by-law, . . . and such permits may also impose conditions, safeguards and limitations on timely uses". Section 9 specifically provides authority for increases in the permissible density of population or intensity of a particular use in a proposed development if certain other conditions are met. In the present case, the criteria favor a less intensive use than authorized by the dimensional requirements of Residential Districts and unfairly impact on those within the COD by imposing a double standard. Cf. Cape Ann Land Development Corp. v. Board of Appeals of Gloucester, 371 Mass. 19 (1976) S.C. 374 Mass. 825 (1978). Uses A and B set forth above are inconsistent with the permitted uses in the underlying zoning districts since they, in many instances in residential districts, generally do not permit water dependent development but are focused on residential use.

So far as Criterion C is concerned, the concept of a "neighborhood" is introduced but there is no definition in the zoning by-law of the term and it is difficult to see in a residential district, for example, how such provision would be applied. See Manning v. Boston Redevelopment Authority, Land Court Miscellaneous Case No. 117622, Superior Court C. A. No. 78304 (May 5, 1986), affirmed, 400 Mass. 444 (1987). Criterion D runs afoul of the provisions of Nollan v. California Coastal Comm'n., 107 S. Ct. 3141 (1987), Opinion of the Justices, 365 Mass. 681 (1974), by seemingly imposing indirectly a requirement that access be afforded to others without just compensation. Massachusetts does not recognize without a specific grant easements of light and air, much less view, and accordingly Criterion E, insofar as it speaks of view corridors, is objectionable. I, however, am of the opinion that zoning for aesthetic purposes is now authorized by c. 40A and decisions of the Supreme Judicial Court, so a portion of this criterion may be valid. Criterion F offers a premium for less intensive use and violates the principle of uniformity. I do not understand Criterion G or how the Board of Appeals is intended to apply it. In general, the Commission given to the Board of Appeals lacks the specificity required of such standards and must fall. See MacGibbon v. Board of Appeals of Duxbury, 369 Mass. 512 (1976), and its predecessors, MacGibbon I, 347 Mass. 690 (1964) and MacGibbon II, 356 Mass. 635 (1970). For these reasons, I find and rule that the provisions of Section 1.5C of the Marblehead Zoning By-Law are violative of the provisions of Massachusetts and federal law in that they impose "standards" which authorize the taking of property without compensation, are in part arbitrary and unreasonable, and are too vague to be properly administered.

While the attempt to preserve the maritime character of the Marblehead waterfront is admirable, it is already over 90% developed. Since the COD does not apply to existing buildings or extensions thereof or to buildings appurtenant thereto, it puts the burden of instilling an aesthetic quality to this area of Marblehead on those who now seek permission to develop their land. This alone may be an invalid legislative enactment, but I base my decision on a more narrowly focused ground, the standards by which the special permit is to be granted.

By the Court.