JAMES J. GILHOOLEY and FRANCES J. GILHOOLEY vs. DOUGLAS MOXHAM, DAVID DELANEY, BARRY PORTNOY, BARBARA SHEFFTZ and JEFFREY SHRIBMAN, as they are the BOARD OF APPEALS OF THE TOWN OF MARBLEHEAD.

By this action, filed on August 8, 1988, James J. and Frances J. Gilhooley ("Plaintiffs") seek judicial review, pursuant to G.L. c. 40A, §17, of a decision of the Defendant, Board of Appeals of the Town of Marblehead ("Board"), dated July 12, 1988, denying their application for a special permit to construct a single-family residence on a lot owned by them, located on Roosevelt Avenue in Marblehead ("Locus"), which lot, the Board contends, contains less than the minimum area required by the Marblehead Zoning By-law ("By-law").

A trial was held on August 22, 1989, at which time the proceedings were recorded and later transcribed by a court-appointed reporter. Four witnesses testified and eleven exhibits, all of which are incorporated herein for purposes of any appeal, were accepted into evidence. A Stipulation of Agreed Upon Facts and Documents was also submitted to the Court.

On all of the evidence, I find the following facts to be most pertinent hereto:

1. The Plaintiffs acquired title to Locus by deed from Wayne D. and Priscilla A. Martin, Trustees (collectively referred to as "the Martins"), dated September 6, 1985 and recorded with the Essex South District Registry of Deeds [Note 1] at Book 7910, Page 547. At this time, the Plaintiff, Frances J. Gilhooley, by a deed dated September 6, 1985, recorded at Book 7910, Page 548 ("Martin Parcel") (Exhibit No. 6), also conveyed a parcel of land located on said Roosevelt Avenue to the Martins.

2. Locus is shown as Lot No. 74 on a plan entitled "Subdivision of 'Curtis Heights', Marblehead, Mass., owned by the Curtis Heights Land Trust", dated June 1917, recorded at Book 2368, Page 1 ("Curtis Subdivision Plan") (Exhibit No. 5). The Martin Parcel is depicted thereupon as Lot No. 78. At the time of the recording of the Curtis Subdivision Plan, Locus complied with the dimensional requirements of the By-law then in effect.

3. As shown on Sheet No. 136 of the maps on file with the Marblehead Assessors' Office (Exhibit No. 4), Locus, which is depicted thereupon as Lot No. 13, contains 4,761 square feet of land, with 60 feet of frontage on Roosevelt Avenue.

4. Locus is situated within the Single Residence ("S-R") zoning district of Marblehead, in which district single-family dwellings are permitted as of right (See By-law Article IV, Section IV.2, Table 1), provided they comply with the following dimensional requirements (See By-law Article V, Section V.1, Table 2):

Lot Area: 10,000 square feet Frontage: 100 feet

Setback: 20 feet Sideline : 15 feet

Rearline: 15 feet Max. Hgt: 35 feet

Off-Street Parking Spaces: 2 per unit

Minimum Open Area Per Lot: None

The Town of Marblehead allows for exceptions to the aforesaid dimensional requirements by special permit. [Note 2] See By-law Article I, Section I.5A.

5. Single-family dwellings constitute the sole "private use" allowed as of right in the S-R zoning district. See By-law Article IV, Section IV.2, Table 1. In the Roosevelt Avenue neighborhood of this zone, many of the older single-family residences in the immediate vicinity of Locus have been built on lots containing only 1,200 to 1,600 square feet of land, with only 50 to 60 feet of frontage. These houses are serviced by municipal sewer, water and utility services, all of which are adequate to accommodate the house proposed for construction by the Plaintiffs.

6. In 1972, the zoning district in which Locus lies was changed from a General Residence zone, in which the required minimum lot area was 5,000 square feet, to a Single Residence zone in which the required minimum lot area, as set forth above, is 10,000 square feet.

7. As amended on March 3, 1988, [Note 3] Section V.2B of the By-law provides in pertinent part as follows:

... Notwithstanding [applicable] area and frontage requirements ... a single detached one-family dwelling ... may be constructed and used on a lot having less than the prescribed basic minimum area and/or minimum frontage ... if said lot prior to the date of the adoption of the requirements in question:

a. was lawfully laid out by plan or deed duly recorded in the Essex South District Registry of Deeds ... and (emphasis added)

b. was otherwise exempted from such requirements by the provisions of statute; and (emphasis added)

c. further provided that such lot conformed to the area and frontage requirements of the By-law applicable at the time of said recording or approval; and (emphasis added)

d. further provided that such lot at the time of application for a building permit, shall not be less than 5,000 square feet in area; and (emphasis added)

e. further provided that any lot which was held in common ownership with any adjoining land at the time of recording of any plan or deed ... shall be subject to the area and dimensional requirements of this By-law, except to the extent provided by [G.L. c.40A, §6].

8. The effect of the aforesaid Amendment on Locus was addressed by Land Court Chief Justice Sullivan in Land Court Miscellaneous Case No. 128094. [Note 4] There, such Amendment was interpreted by the Court to mean that "a lot to be lawfully built upon not only [has] to [have been] lawfully laid out by plan or deed, but also has to conform to the applicable zoning and area frontage requirements ... in effect at the time of the recording and have at least 5,000 square feet".

9. In May of 1988, the Plaintiffs filed an application for a special permit with the Board (See Exhibit No. 2), requesting "a special permit for the construction. of a single-family house on a lot [Locus/Lot No. 74]with less than the required minimum area as defined by Article V.2B of the [By-law] as recently amended." [Note 5]

10. Article I, Section I.5B of the By-law states that the Board shall consider the following criteria before granting a special permit:

I.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.

To assure that the foregoing conditions are met, the Board may impose any restrictions deemed necessary, such as but not limited to the following:

aa. Greater than mnimum [sic] yard requirements.

bb. Modification of exterior appearance; limitation of size, occupancy, or extent of facilities.

cc. Regulation of traffic and site plan features; additional off-street parking requirements.

dd. Screening of parking areas or other premises from view of use of appropriate wall, fence, or planting.

ee. Control of the number, location, size and lighting of signs.

11. A public hearing with respect to the Plaintiffs' special permit application was held on July 12, 1988. There, the Board voted 4-1 to deny the application, for reasons which read in relevant part as follows:

... the application [is] particularly troublesome because the Board had granted a similar application to [one] Mr. Jordan two years earlier. [Note 6] In the intervening time, however, the town meeting passed by-laws requiring a minimum of 5,000 square feet for grandfather rights on lots where formerly the lots were grandfathered simply if they were not in common ownership and laid out prior to passage of zoning. With the increasing density in Marblehead and construction occurring it has become increasingly apparent to the Board that lots containing fewer than 5,000 square feet are not likely to be regarded as appropriate sites for single-family homes, especially in a residential district requiring a minimum of 10,000 square feet ... (emphasis supplied)

... the site [is] not appropriate for a single-family house, primarily due to its undersized nature (emphasis supplied) and because there [are] no circumstances inducing the Board to apply its discretion to grant the special permit. Unlike the case of the Jordan application, there are no family considerations where, there, for example, Mr. Jordan and his son were going to live together on the adjacent lots. The application here is simply one to allow a developer to complete the last lot on a street ...

In reviewing appeals brought pursuant to G.L. c.40A, §17, the Court, in a de novo trial, hears all evidence pertinent to the authority of the Board, makes independent findings of fact and, upon the facts so found, determines whether or not the Board exceeded its authority in rendering its decision. See MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 639 (1970); S. Volpe & Co., Inc. v. Board of Appeals of Wareham, 4 Mass. App. Ct. 357 , 359 (1976); Subaru of New England, Inc. v. Board of Appeals of Canton, 8 Mass. App. Ct. 483 , 486 (1979); Garvey v. Board of Appeals of Amherst, 9 Mass. App. Ct. 856 (1980). In such appeals, it is the applicant for the special permit who bears the burden of proving to the reviewing Court that he has met the statutory prerequisites for the granting of a special permit and that, accordingly, the decision of the Board should be annulled. Dowd v. Board of Appeals of Dover, 5 Mass. App. Ct. 148 , 154-155 (1977); Boyajian v. Board of Appeals of Wellesley, 6 Mass. App. Ct. 283 , 284 (1978); Ranney v. Board of Appeals of Nantucket, 11 Mass. App. Ct. 112 , 118 (1981).

Insofar as the granting of a special permit rests largely on the discretion of the Board, Gulf Oil Corp. v. Board of Appeals of Framingham, 355 Mass. 275 , 277-278 (1969), no party possesses an absolute right to such a grant. Humble Oil & Refining Co. v. Board of Appeals of Amherst, 360 Mass. 604 , 605 (1971); Pioneer Home Sponsors, Inc. v. Board of Appeals of Northampton, 1 Mass. App. Ct. 830 , 831 (1973). In the instant matter, I find, for the following reasons, that the Board did not abuse its discretion in denying the Plaintiffs' application for a special permit to construct a single-family home on Locus. Locus is situated within a Single-Residence zoning district where the required minimum lot area is presently 10,000 square feet and the required minimum lot frontage is 100 feet. The lot area and frontage dimensions of Locus are grossly inadequate when measured against these minimum requirements. In view of thi fact, the Plaintiffs seek to carry out their proposed construction plans under Section V.2B of the By-law, as amended. I find that, despite the lot's having been lawfully laid out on the duly recorded Curtis Subdivision Plan in 1917 and its having then conformed to the dimensional requirements of the By-law (See Section V.2B (a) and (c)), it still falls short of complying with Section V.2B (d) of the By-law, which necessitates that such "grandfathered" lots have no less than 5,000 square feet of land at the time of the building permit application.

Notwithstanding the foregoing, I find that the Board's decision properly incorporated the considerations set forth in Section I.5B of the By-law. Specifically, I note that portion of its decision which states "the site [is] not appropriate for a single-family house, primarily due to its undersized nature..." This reasoning is consistent with Section I.5B (a) of the By-law, which states that the Board shall consider whether "the specific site is an appropriate location for such use or structure". I find the Board's reasoning to be further supported by its finding of increasing density in the Town of Marblehead, and by other competent evidence introduced at trial, all of which indicate that the construction of a single-family residence on such a dimensionally nonconforming lot will only exacerbate present overcrowding. I thus find that the development proposed by the Plaintiffs is most likely to "adversely affect the neighborhood" (See Section I.5B (c). Accordingly, I find that even despite the existence of "adequate and appropriate facilities" (See By-law Section I.5B (d)) in the Roosevelt Avenue area to service the Plaintiffs' proposed single-family home, the Board did not exceed the scope of its authority nor abuse its discretion in refusing to grant the Plaintiffs' special permit application on the grounds stated herein.

On all of the evidence, I rule in summary that the decision of the Marblehead Board of Appeals, dated July 12, 1988, denying the Plaintiffs' application for a special permit for the construction of a single-family residence on Locus, did not exceed the authority of the Board and must be and hereby is affirmed.

Judgment accordingly.