MISC 121760

March 30, 1990

Essex, ss.




Dwight J. Grader and Beth J. Grader, husband and wife, obtained a building permit from the Building Inspector of the Town of Marblehead for the construction of a house on a lot of vacant land situated off Beacon Street in Marblehead in the County of Essex, and accordingly on January 2, 1986 they closed their purchase of the parcel which contains about 50,800 square feet of land pursuant to a purchase and sale agreement which contained a building permit contingence. After the permit was issued but before the purchase was consummated, defendant Jeanne Y. Howe filed a complaint with the Superior Court for the County of Essex to restrain the Graders from using a right of way appurtenant to their property for utilities and for a declaration that they had insufficient frontage to construct a home on the lot in question. A preliminary injunction was issued by a justice of the Superior Court until the matter might be resolved on the merits. Mrs. Howe also appealed the decision of the Building Inspector to the Board of Zoning Appeals for the Town of Marblehead which reversed the decision of the Building Inspector and revoked the building permit. The decision of the Zoning Board of Appeals then was appealed to the Superior Court by Mr. Grader. Finally the plaintiffs applied to the ZBA for a special permit to grant an exception to the dimensional regulation relative to frontage in accordance with provision Sec. I.5 of the Marblehead Zoning By-law but failed to obtain the necessary supermajority. The Graders then appealed to this Court. The three actions were tried together in the Land Court Department, Chief Administrative Justice Arthur M. Mason having designated me to act as a Superior Court Justice in hearing the appeals brought in that department. The grounds on which the dissenting members of the Board of Appeals denied the special permit were wrong as a matter of law, and I remand the matter to the ZBA for reconsideration. The ZBA initially also was in error in revoking the building permit issued by the Building Inspector, and that building permit should be reinstituted; the latter solution would alleviate the necessity of a remand. The preliminary injunction issued in the original Superior Court case is dissolved.

A trial was held at the Land Court on November 6, 1989 at which a stenographer was appointed to record and transcribe the testimony. Twenty-seven exhibits, some with multiple parts, were introduced into evidence and are incorporated herein for the purpose of any appeal. The plaintiff Dwight J. Grader, Herbert Haskell, Building Inspector of the Town of Marblehead, the defendant Jeanne Y. Howe, John Hooper, an owner of land situated on the right of way, Dorothy Kramer, a resident of 16 Beacon Street in said Marblehead and Mary Kimball, a resident of Marblehead whose home is diagonally across Beacon Street from the entrance to the area were witnesses. In this decision the Graders (together or singly as the context requires) are referred to as the plaintiff (s), Mrs. Howe as the defendant and the Board of Zoning Appeals as the "ZBA". While not an issue at the trial, it may be helpful to realize that Marblehead has not adopted the subdivision control law.

On all the evidence I find and rule as follows:

1. The area in question which is situated in the Peach's Point section of Marblehead was developed by John C. Parker III who with his wife, Elisabeth J. Parker, acquired the lands here involved from Benjamin W. Crowninshield et al by deed dated March 7, 1950.

2. The initial conveyance by the Parkers was to Thomas Hale and Anne P. Hale by deed dated March 9, 1953 and recorded with Essex South District Deeds (to which Registry recording references herein refer), Book 3965, Page 132 (Exhibit No. 11). Recorded with the deed was a plan entitled "Beacon Street Land of Parker" dated February 25, 1953 by W. T. Foss Co., a copy of which is attached hereto as Appendix A and which is helpful in understanding the easements in question. The plan was filed as No. 167 of 1973.

3. The deed out to Thomas Hale et ux contained a grant of a right to use the twenty foot right-of-way here in question together with an appropriate reservation to the grantor for the benefit of his remaining land. The language in question is as follows:

The Grantors hereby grant to the Grantee herein as appurtenant to the said premises the right

(1) to use, maintain and repair in common with the Grantors the twenty foot right-of-way extending from Beacon Street to the granted premises over land of the Grantors as shown on said Plan for all purposes for which streets or ways may now or hereafter be commonly used in said Marblehead. (emphasis added)

(2) to use, maintain and repair the electric and telephone lines extending from Beacon Street together with the poles shown on said Plan and to connect the granted premises with said lines by an underground conduit extending from the pole about fifty feet Westerly from the Northwesterly corner of the granted premises.

(3) to use, maintain and repair in common with the Grantors and others entitled thereto, the water pipe extending from said Beacon Street over said land of Koenig and the premises hereby conveyed, together with the right to connect said water pipe with a one inch water pipe providing said connection is made in a good and workmanlike manner. . . .

The deed further reserves for the grantor the right to use, maintain and repair the water pipe crossing Lot 2 for the benefit of the grantor's remaining land.

4. The Parkers thereafter conveyed to Lois E. Crocker by deed dated June 4, 1956 and duly recorded in Book 4283, Page 92 (Exhibit No. 13) Lot 5 on a 1954 subdivision plan which lot contained approximately 164,000 square feet. It is from this parcel that the plaintiffs trace their title. Crocker, as Lois E. Mason, conveyed the entire parcel to J. Raymond Gould and Elizabeth L. Gould by deed dated July 15, 1968 recorded in Book 5543, Page 123 with a confirmatory deed whereafter being recorded in Book 5559, Page 743 (Exhibits Nos. 16 and 17). Elizabeth Gould conveyed to Bruce B. Dean and Deborah L. Dean the 164,000 square foot parcel by deed dated July 12, 1977 and recorded in Book 6369, Page 526 (Exhibit No. 18). Thereafter, Bruce and Deborah Dean conveyed the parcel to Bruce Dean by deed dated June 1, 1983 and recorded in Book 7484, Page 106 (Exhibit No. 19). Mr. Dean then subdivided the parcel as shown on a plan entitled "Division of Lot 5 on Plan 492 of 1956, Marblehead, Mass." which is not in evidence. Bruce Dean retained title to Lot 1 on said plan, conveyed Lot 7 thereon to his former wife, Deborah Dean Hobbs by deed dated June 1, 1983 and recorded in Book 7569, Page 111. The plaintiffs thereafter acquired title to Lot 2 on a plan entitled "Resubdivision Plan of Land in Marblehead Off Beacon Street" dated June 10, 1985 by Carter & Towers Engineering Corp., recorded in Plan Book 199 as Plan No. 78 by deed from Bruce B. Dean et al dated January 2, 1986 and recorded in Book 8194, Page 439 (Exhibit No. 1). The deed contained no express grant of rights other than to use the way shown on the plan for all purposes for which ways are commonly used, but it is law of this Commonwealth that all easements appurtenant to a parcel pass by operation of law although not specifically mentioned in the deed (see G.L. c. 183, §15).

5. The other parcel in the Parker development is Lot 4 which Mr. and Mrs. Parker first conveyed to Alicia E. Evers by deed dated March 1, 1957 and recorded in Book 4354, Page 592 (Exhibit No. 15). The grantee shortly thereafter conveyed Lot 4 back to Mr. Parker by deed dated March 21, 1957 and recorded in Book 4354, Page 593. I assume that the conveyance was a device to transfer title from the Parkers jointly to Mr. Parker alone. Thereafter John C. Parker III conveyed Lot 4 to Jeanne Y. Howe, the defendant, by deed dated July 25, 1957 and recorded in Book 4391, Page 418. Also included as a part of the granted premises were Lots 3A and the westerly one-half of Lot 3 as shown on the various plans in evidence. Lots 3 and 3A are small narrow parcels adjoining Beacon Street and constitute, at least in the case of Lot 3, a portion of the right of way. It is clear from the plans that Lot 3 which is 16 feet wide is owned by the two abutters but subject to the rights of the owners of the other properties abutting on the way to use Lot 3 for all purposes for which ways are commonly used in Marblehead. It is not as clear whether Lots 3A and 2 also comprise a portion of the right of way, but I assume for purposes of this decision that they do not. The ownership of Lot 2 is not in evidence.

6. The right of way is shown on a plan prepared by the office of the Town Engineer in Marblehead entitled "Town of Marblehead Massachusetts Prepared by the Engineering Department" revised 1983, 1987 (Exhibit No. 4). The parties have not agreed as to whether Old Mill Way as shown on said plan refers only to that portion which lies between Beacon Street and a culvert across a brook or tributary from Flag Pond. It is important, because in 1969 the general court authorized the Town of Marblehead to construct, reconstruct, resurface and repair any private way in said Town which has been used by the public for 50 years or more. See St. 1969, Chapter 500. Pursuant to this authorization the defendant Howe, J. Raymond Gould, a predecessor in title of the plaintiffs and a third party applied to the Town to repair Old Mill Way which the petition recited was "private way having been open to public use for 50 years or more". The work which the Town of Marblehead subsequently did was on that portion of the way in which the culvert over the waterway is situated, and Mrs. Howe has testified that she believes the request related only to that portion of Old Mill Way, a name which she refuses to recognize but insists that the way which despite the defendant's contention has a legal status and is subject to the appurtenant rights of others to use, is merely the driveway to her home. The petition does not describe the limits of the so-called Old Mill Way, but I find and rule that it constitutes the entire 20 foot wide right of way as shown on the plan prepared by the Engineering Department.

7. Each of the three existing original structures was built pursuant to a building permit (Exhibit Nos. 23, 25A and 24A). The permits are silent on the frontage requirements or whether those provisions of the by-law were satisfied by frontage on the way. The properties are identified by reference to Beacon Street, and there is no nomenclature relative to Old Mill Way. It, however, is the only possible source of frontage for the existing houses.

8. The 1985 Marblehead Zoning By-law in effect at the time Grader applied for a Building Permit, when Howe appealed the issuance of the permit, and at the time the plaintiffs were denied a special permit, set forth in Article II Definitions, Section 1 - Meaning of Words, the following pertinent terms:

II.1K Lot Frontage That part of a lot (a lot line) abutting on a street or way.

II.1M Lot Line, Front A line separating the lot from a street or private way.

II.1Q Street The word "Street" shall mean public ways established or maintained under public authority, private ways open for public use provided said private ways have been constructed prior to the enactment of this amendment or a plan and profile of said private way has been approved by the Board of Survey and is constructed within a reasonable time after said approval.

II.1R Street Line The boundary line of the lot separating it from a public street or private way.

The Marblehead voters at the May 4, 1988 Annual Town Meeting voted to amend the Zoning By-law. Three of the above four provisions were amended to read:

Lot Frontage That part of a lot (an uninterrupted lot line) abutting on a street.

Lot Line, Front A line separating the lot from a street.

Street Line The boundary of the lot separating it from a street.

9. The definition for street was not changed by the 1988 Amendment to the Zoning By-law. However, by the elimination of the words "or way" from the definition of frontage the town meeting members removed a possible ambiguity as to the type of way required to meet the frontage requirements of the by-law. It now seems clear that it is in the definition of street that the party interpreting these provisions must look to define the type of way in compliance with such a requirement.

10. The Zoning By-law specifically provides in Section I.5 that the Board of Appeals may grant "exceptions to the dimensional regulations". The by-law further provides that "the Board shall take into consideration the general purpose and intent of this by- law and may impose such conditions and safeguards deemed necessary to preserve community values. Subject to appropriate conditions and safeguards, the Board may grant a permit without finding of hardship or for stated reasons, may deny the permit". The by-law then provides in Section 1.5B certain criteria to be considered by the Board before granting a special permit.

1.5B The Board of Appeals shall consider the following criteria before granting a special permit.

a. The specific site is an appropriate location for such use or structure.

b. The use as developed will not adversely affect the neighborhood.

c. There will be no nuisance or serious hazard to vehicles or pedestrians.

d. Adequate and appropriate facilities will be provided for the proper operation of the proposed use.

11. The way in question is 20 feet in width on the records, but as it presently exists on the ground it is approximately 10 to 12 feet in width. Any party with a right to use it may, of course, widen and resurface it. Its surface is generally asphalt, or asphalt-like although a portion consists of packed crushed stone provided by Mr. Hooper. The way, as laid out, extends southwesterly from Beacon Street roughly diagonally through the defendant's property onto Lot 5 where it makes a hairpin turn from which point it proceeds in an east, northeasterly direction across Lot 5 to the Hooper property line.

12. On or about September 6, 1985 the plaintiff applied for and was issued a building permit for the construction of a 2,200 square foot single family dwelling (Exhibit No. 3A). [Note 1] The application indicated the property contains fifty thousand plus (50,000+) square feet; located "Off Beacon St."; appearing as Lot 2A on Plate 185 of the "Town's Plans" and containing one hundred thirty (130) foot front set back, seventy-five (75) foot rear set back and forty-five (45) foot set backs for both side yards. There appears to be no space on the application form to indicate lot frontage. To the extent relevant, the Single Residence district in which the locus is located required in 1985, and still requires today, 10,000 square feet for minimum lot area and 100 feet of frontage. Building Permit 1947 (Exhibit No. 3B) was issued to Grader upon the Building Inspector's opinion that there was no violation of the Zoning By-law and a single family home could be built of right. Moreover, the Building Inspector had received word that the plaintiff had obtained assurances as to water and sewer hookup, which allowed him to issue the permit.

13. On October 28, 1985 the defendant, by letter, allegedly requested that the Building Inspector revoke the permit; the request was repeated by the defendant's counsel on November 19, 1985. The Building Inspector did not respond to either request, neither of which is in evidence.

14. On December 31, 1985, the defendant filed a notice of appeal with the ZBA. According to the minutes of the public hearing (s) held in connection therewith, notice was duly published and sent to parties in interest. The public hearing was held on July 1, 1986 [Note 2] and continued and concluded on August 26, 1986. After deliberation, the Board revoked the building permit; in finding that the lot lacked adequate frontage, it reasoned that the way was not a private way open to public use as it was not a through way between two public streets and did not offer access to public land. In addition, it appeared to the Board that case law offered by the defendant's counsel in a memorandum to the ZBA and at the hearing supported finding that the way was not public. After concluding that they could vary the zoning requirements through the special permit process, the ZBA declined to grant the relief as the proceedings were in the nature of an appeal an not before the Board as an affirmative application for a special permit (see Exhibit Nos. 5 and 6). By unanimous vote, all members present and voting, the Board sustained the defendnt's appeal and revoked the permit citing lack of sufficient frontage.

15. The plaintiff next adopted the ZBA's advice and applied for a special permit. After failing to obtain a quorum on October 28, 1986, the hearing was continued and heard November 18, 1986. Neighbors, as well as the defendant, testified against the application. Inasmuch as the Board of Appeals is a five member board and G.L. c. 40, §9 requires four of five members to vote in favor of issuing a special permit, the three to two vote in favor of the plaintiff's application effectively denied the request by failure to obtain the supermajority as required. The decision was filed with the Town Clerk on November 28, 1986 (Exhibit No. 7).

In the decision of the ZBA in which it reversed the decision of the Building Inspector in issuing the building permit and revoked it (see Exhibit Nos. 5 and 6) the ZBA suggested that the proper route for the plaintiff to follow was to apply for a special permit. The applicant accepted the suggestion of the ZBA that he seek a special permit granting a waiver of the frontage in front yard set back and all other required dimensional provisions and fared no better with the Board. The ZBA did vote three to two to grant the desired relief, but the two members of the Board voted against the grant of the special permit "on the grounds that the addition of the house on this lane would have a severely negative impact on the neighborhood and also on the basis that there are questions regarding the ability to bring proper services to the lot". I find and rule that those two reasons are wrong as a matter of law and therefore on this appeal remand the matter to the Board. It is clear from the deeds introduced into evidence at the trial that there is appurtenant to the premises owned by the plaintiffs the right to use the 20 foot wide right of way for all purposes. By virtue of G. L. c. 187, §5 the right to use the way includes the right to install pipes for gas, electricity, telephone and water service subject to a condition not here material. It cannot now be doubted that the statute applies to ways existing at the time of its adoption as well as those in which rights were acquired thereafter. Nantucket Conservation Foundation, Inc. v. Russell Management, Inc., 380 Mass. 212 (1980). In addition there is an existing sewer of the Town of Marblehead to which the plaintiffs have access as well as the reserved easements for electicity and water which cross in another location from Beacon Street and which were reserved at the time of the conveyance of Lot 2 by the Parkers. The reason for concern about utilities therefore was not a legally sufficient reason to deny a special permit.

The other reason given by the minority members of the ZBA that the addition of another house "would have a severely negative impact on the neighborhood" is completely inconsistent with the minimum lot requirements in this area of only 10,000 square feet where this particular parcel has an area of more than 50,000 square feet. It is true that the original Parker scheme provided only for one house on each of the lots which he created, but those restrictions being unlimited in time expired after thirty (30) years. Since the restriction itself has now expired, the limitation of the number of houses entitled to use the way has ended as well. The grant of the easements ran with each portion of the dominant estate and passed when the property was conveyed whether it was specifically referred to in the deed or not. Accordingly I find and rule that the reasons given for the denial of the grant of the special permit are insufficient in law and remand to the Zoning Board of Appeals the appeal from its decision of November 28, 1986 to reconsider its action.

There remain the two Superior Court cases, one of which merely granted an injunction until there could be a decision on the merits. It is the second Superior Court case in which substantive questions remain. The Building Inspector granted the building permit, and the ZBA revoked it. The revocation was based on the Board's interpretation of the definition of street as it appeared in the by-law in 1986. In fact it would seem that without a definition of a "way" as used in the definition of "lot frontage" in the then version of the by-law the Board imputed standards beyond those set forth in the legislation. Thereafter the by-law was amended to end this ambiguity by deleting the words "or way" from the definition of "lot frontage" and leaving only the definition of a street in place. In essence therefore the question since the amendment centers on whether Old Mill Way is "a private way open for public use . . . constructed prior to the enactment of this amendment". It is unclear whether as to ways not constructed prior to the 1988 Amendment whether the definition of a street now is limited only to public ways or ways approved by the Board of Survey, Marblehead having no planning board as has hereinbefore been noted. That, however, is not this case.

The present aspect of this decision is governed by Gem Properties, Inc. v. Board of Appeals of Milton, 341 Mass. 99 , 103 (1960). There the developer retained title to two lots situated off a public way, access to which was reached over a 20 foot wide way on each of which the two lots in question had the required frontage. The Supreme Judicial Court discussed in the decision the concept of a private way open to public use which remains a concept difficult to define and one brought with uncertainty. The Gem Properties decision was predicated on the court's belief that the way in question which was more limited in extent than that now before the Court might well be considered a way "susceptible to use by the public . . . for purposes of travel, not merely incidental to use by the owner thereof, in a manner similar to . . . use for . . . travel of a public way of the same general nature". If that were not so, Justice Cutter, writing for the court, emphasized that the by-law might well be without substantial relation to the public safety, public health and public welfare and would be an unconstitutional application thereof. The court was influenced by the fact that without relief the owner would be deprived of the right to use property of over an acre of real estate. The present case is even more egregious since the plaintiffs wish to build only one house on a lot which is far larger than required by the Marblehead Zoning By-law and has frontage on the same way as houses previously built in this locale. The Supreme Judicial Court looked with disfavor on the application of the Milton By-law to prevent the use of the two back lots in question there, and the same result would appear to apply to an application of the Marblehead Zoning By-law in such a way as to preclude relief to the plaintiffs. Accordingly I find and rule that the action of the Building Inspector in granting a building permit to the plaintiffs was in accordance with the then existing by-law of the Town of Marblehead and that the revocation by the Zoning Board of Appeals was in error.

I note that because of the three appeals before me, the relief granted may be considered inconsistent. I suggest that it would be appropriate for the plaintiffs to rely on the Land Court case and to have the Board of Appeals reconsider their decison in the light of my review of the applicable law as set forth in this decision. The case of Emond v. Board of Appeals of Uxbridge, 27 Mass. App. Ct. 630 (1989) makes clear that it is still appropriate for the ZBA to grant relief in this manner. It is my opinion that based on the law applicable to rights of way the present plaintiffs are entitled to the special permit for which provision is made in the Zoning By-law and that the permit should be granted by the Board. This approach would alleviate any question as to the nature of the way presented by the Superior Court cases and resolve any question of unconstitutional application.

Judgment accordingly.


[Note 1] The application itself is undated, but the approval at the bottom of the application indicates September 6, 1985 as does the building permit (No. 1947).

[Note 2] No explanation as to delay between filing of notice of appeal and public hearing (approximately six months) offered, nor objection raised.