MISC 133395

June 26, 1991

Essex, ss.



Plaintiff, appealing under G. L. c. 40A, §17, seeks to annul a decision of the Zoning Board of Appeals (the "Board") of the Town of Marblehead (the "Town") denying plaintiff a variance under the Zoning By-Laws (the "By-Law") of the Town to construct a single family residence.

There was a trial on February 11, 1991, at which testimony was taken before a Court stenographer, who has prepared a transcript. Thirteen exhibits (one of which had two parts) were introduced into evidence and are incorporated in this Decision for purposes of any appeal. One witness testified, Richard Todd Sokolow, plaintiff, who owns the land in question. The parties filed with the Court a Statement of Agreed Facts.

On the basis of that Statement and all the evidence, I find and rule as follows:

1. Plaintiff is the owner of a parcel of land designated by the Marblehead assessor as Lot 6A at the end of Bass Rock Lane (also known as and referred to herein as Bass Rock Street) in Marblehead (the "Property") and was the applicant before the Board for the relief which is the subject of this action.

2. The Property and the abutting properties are depicted on a plan entitled "Site Plan of Land in Marblehead", dated November 17, 1987, prepared by John J. DeCoulas, R.L.S. (the "Plan").

3. The Property is shown on the Plan as a 38,200 square foot waterfront lot in a Single Residence zoning district under the By­Law. Included in the lot is the fee to Bass Rock Street, as shown on the Plan, which is a private way.

4. According to the Assessor's Map, which shows the Property, the Property contains 25,600 square feet of land.

5. The Property was first shown in its present configuration on a plan entitled "Plan of Land Of Horace Ware At And Near Bass Rock In Marblehead", dated June 14, 1877, recorded in Essex Southern District Registry of Deeds on July 9, 1877 at Book 979, Page 138. A copy of a portion of that plan is attached hereto and marked "A".

6. The proposed use of the Property for a single-family dwelling is allowed as a matter of right in the Single Residence zoning district.

7. Prior to November 3, 1988, plaintiff filed an application and plans with the Marblehead building inspector seeking permission to construct a single-family detached dwelling on the Property. Miscellaneous Case No. 150221 in this Court considers whether that construction would violate certain easements held by Bass Rock Street abutters.

8. By a letter dated November 3, 1988, the building inspector denied plaintiff's application for a building permit on the grounds that the proposed construction (1) violated the maximum setback provisions of Section V.3b. of the By-Law ("Section V.3b."); (2) violated the height limitations in the By-Law; and (3) required a special permit under the Coast overlay District provisions of the By-Law. The height violation has been addressed through a change in the construction plans and is not involved in this appeal.

9. On December 3, 1988, plaintiff filed an application to the Board appealing the building inspector's determination that the proposed construction violated the maximum setback provisions found in Section V.3b., seeking a variance from Section V.3b. in the alternative, and also requesting the issuance of a special permit under the Coastal Overlay District provisions.

10. The Board held a duly advertised public hearing on January 10, 1989 and a continued hearing on February 28, 1989. At the hearing on February 23, 1989 the Board voted to deny plaintiff's appeal, his request for a variance and his request for a special permit.

11. The Board filed a written decision with the Town clerk on March 16, 1989.

12. Bass Rock Street is 240 feet long by 20 feet wide. At its northwesterly end is Ocean Spray Avenue. At its southeasterly end is Bass Rock itself. The Town has previously allowed the construction of single-family dwellings using Bass Rock street for frontage on Lots 2, 5 and 6 as shown on the Assessor's Map. Building permits for the structures on Lots 2 and 5 were granted in 1948 and for Lot 6 in 1954, all of which use Bass Rock Street for their frontage.

13. If the frontage for the Property is considered as located at the intersection of Bass Rock Street and Ocean Spray Avenue, then no structure can be lawfully built on the Property without a variance from the provisions of Section V.3b.

14. On June 2, 1989, this Court issued a judgement holding that the Coastal Overlay District provisions of the By-Law are "invalid and of no further force and effect." J. Alan Chew, Trustee v. Board of Appeals For The Town Of Marblehead, et al., Land Court Misc No. 128325.

15. The Town has repealed the Coastal Overlay District provisions of the By-Law. Therefore, the only question remaining is that posed by Section V.3b., and in particular, its first sentence.

16. Section V.3b. is as follows:

In all districts the maximum setback shall not exceed twice the frontage that a particular lot possesses, measured through the lot. Where more than one building exists on a lot, the frontage and the allowable setback requirement must both apply to the same single structure and only to that structure.

17. The following definitions are in the By-Law:

II. lN Lot

A single area of land defined by metes, bounds, or boundary lines in a duly recorded deed or shown on a duly recorded plan.

II. lQ Lot Frontage

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

II. lR Lot Line Front

A line separating the lot from a street.

II. lZ 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. lAA Street Line

The boundary of the lot separating it from a street.

18. The Board takes the position that Bass Rock Street is included in the Property, and therefore, that the frontage for the lot is at the intersection of Bass Rock Street and Ocean Spray Avenue, and not at the other end of Bass Rock Street. Under the Board's interpretation, plaintiff has only 20' of frontage on Ocean Spray Avenue, and therefore, cannot have a setback in excess of 40'. This would require building a residence in the middle of a 20' private way, an obviously impossible situation. Plaintiff contends that his frontage is at the seaward end of Bass Rock Street.

19. I rule that Bass Rock Street is a "street" within the meaning of the By-Law and that the maximum setback, under Section V.3b., should be measured from its southeasterly (seaward) end. My ruling is in part based on the treatment of Bass Rock Street with respect to other lots thereon and in part because the Town's position lacks common sense or zoning logic. I take judicial notice from Miscellaneous Case No. 150221 that plaintiff's predecessors in title posted Bass Rock Street (along with the rest of Bass Rock) under G.L. c. 187, §3 in 1951 and 1969, but hold that those postings do not determine the status of Bass Rock Street (which existed long before 1951 and has been treated by the Town as a zoning "street").

20. The situation in this action is closely analogous to that found by the Supreme Judicial Court in Jenckes v. Building Commissioner of Brookline, 341 Mass. 162 (1960). The Town's strained reading would render unbuildable an otherwise conforming lot in existence long before zoning was ever thought of. My ruling obviates consideration of whether a variance should be ordered or, taken one step further, whether Section V.3b, providing for a maximum setback, is valid to begin with, as to both of which questions a result in plaintiff's favor seems likely.

21. For the reasons set forth above, the Decision of the Board is unreasonable and based on legally untenable grounds and is annulled. This matter is remanded to the Board, which shall overturn the building inspector's decision of November 3, 1988.

Judgement accordingly.

exhibit 1