MISC 128863

September 14, 1989

Essex, ss.



The plaintiff, Patricia M. Hitchcock, an abutter, appeals pursuant to the provisions of General Laws c. 40A, §17 from the grant by the defendant Board of Appeals of the Town of Marblehead (the "ZBA") of the special permit requested by the defendant Kerry Duffy to construct an addition to his existing home which is situated on a nonconforming lot with existing nonconforming side and rear yards. The complaint was amended to add a count two pursuant to G.L. c. 231A, §1 claiming that the provisions of §1.5A of the Marblehead Zoning by-law conflicted with the enabling act. The defendant Duffy, the ZBA and the Town all answered and in essence responded that the grant of the special permit and the provisions of the by-law all were in accordance with law.

A trial was held at the Land Court on June 14, 1989 at which a stenographer was appointed to record and transcribe the testimony.

The only two witnesses were the defendant Kerry Duffy and the plaintiff Patricia M. Hitchcock. There were twelve exhibits introduced into evidence, some of multiple parts. The exhibits are incorporated herein for the purpose of any appeal.

On all the evidence I find and rule as follows:

1. The defendant Duffy acquired title to locus from Eijk de Mol van Otterloo by deed dated July 19, 1983 and recorded with Essex South District Deeds, Book 7166, Page 253 (Exhibit No. 1). The land conveyed by said deed is shown as Lot 120 on a 1965 recorded plan. It also is shown as Lot 45 on the Assessors' Plan (Exhibit No. 3).

2. The defendant's land abuts on the north the land of the plaintiff which is Lot 116 on the recorded plan and Lot 43 on the Assessors' Plan.

3. At the time the defendant bought his home he was unmarried. It consisted of four rooms, a kitchen, living room, small bedroom and den. He has since married and wishes to construct an addition which would square off the footprint of the house and contain a master bedroom and an enlargement of the existing bedroom. The plans also include the addition of a widow's walk and rail, but that addition does not appear to be controversial.

4. The size of the addition is 190 square feet which exceeds ten percent of the present gross floor area, and this brings the contemplated work within the provisions of Section VI.1B of the Marblehead Zoning by-law.

5. At present the nearest point of the defendant's house to the plaintiff's lot is 11.75 feet, and the addition, if constructed, will bring the new northwesterly corner to within 8.08 feet of the lot line simply because squaring off the footprint and the angle of the line has this result. Because the present footprint is minus the building corner as shown on Exhibit No. 4 of which a copy is attached there is a small area where the nearest point of the house now is about 21 1\2 feet from the common boundary line and another area where it is 16 feet away.

6. The plaintiff's property has a fence six feet in height along said boundary line which screens the plaintiff's view of the Duffy house. She, however, is concerned that the occupants of the latter home will overlook her house.

7. Many neighbors supported the Duffy petition at the Zoning Board of Appeals hearing. The only other resident to express concern was worried about blasting, and the decision of the Board imposes a condition "that there shall be no blasting of rock during construction".

The plaintiff testified that she was a supporter of the application of the zoning laws as written although indeed one of her predecessors in title had obtained a variance therefrom (Exhibit No. 11). However, the enabling statute has specific provisions about the extension or alteration of a nonconforming residential structure which does not increase the nonconforming nature of said structure and which are allowed as a matter of right. Because of the peculiar footprint of the house in question, however, its nonconforming nature will be increased. However, even though the case does not fall within the first sentence of General Laws, c. 40A, §6, the second sentence thereof appears applicable. It reads as follows:

Pre-existing nonconforming 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 change, extension or alteration shall not be substantially more detrimental than the existing nonconforming structure or use to the neighborhood.

The Marblehead Zoning by-law provides in Section VI .lB substantially the same relief as in section 6 and with such a finding the relief sought by Mr. Duffy clearly would be justified.

The Board, however, appears to have acted under section 1.5b which sets forth criteria for special permits, the only one of which seems pertinent here is b), i.e., "The use as developed will not adversely affect the neighborhood".

On all the evidence I find and rule that the Board's finding was justified whether made under G.L. c. 40A, §6 as incorporated in the Marblehead zoning by-law or under the latter's special permit provisions.

The plaintiff, however, by amendment to her complaint challenges the provisions of the by-law which allow exceptions to dimensional requirements by special permit rather than variances. This case can be decided without reference to the exceptions by virtue of the application of G.L. c. 40A, §6. However, since the validity of the continued use of exceptions in Marblehead frequently is raised, it would seem appropriate to give someguidance on this point. The Appeals Court recently has addressed the question as to dimensional requirements and the role of special permits in affording relief therefrom by exceptions in a decision rendered after the trial of the present case. In Edmond v. Board of Appeals of Uxbridge, 27 Mass. App. Ct. 630 (1989) the Appeals Court preserved the pre-Chapter 808 of 1975 treatment and declined to hold that relief was available only through dimensional variances.

Judgment accordingly.