CLELIA A. NICKERSON, JOANNE C. NICKERSON and MARY E. NICKERSON CAMMETT vs. DAVID DELANY, JAMES HACKETT, DOUGLAS MOXHAM, BARBARA SHEFFTZ, JEFFREY SHRIBMAN, HARRY GROSSMAN and JOHN BENNING, as they are the MEMBERS OF THE ZONING BOARD OF APPEALS OF THE TOWN OF MARBLEHEAD and THE TOWN OF MARBLEHEAD.

By complaint filed on June 26, 1989 and amended on July 17, 1989, Clelia A. Nickerson, Joanne C. Nickerson and Mary E. Nickerson Cammett ("Plaintiffs"), pursuant to G.L. c. 40A, §17, seek to annul a decision of the Marblehead Zoning Board of Appeals ("the Board") filed on June 5, 1989 denying their application for a special permit to reconstruct and extend a structure at 23 Rockaway Street ("the Structure"). Plaintiffs further seek a declaration of their rights, under G.L. c. 240 §14A, to repair the Structure. Plaintiffs also claim that the actions of the Board constitute an unconstitutional taking of property and request an order awarding them attorneys' fees and costs.

On April 18, 1990, Plaintiffs filed a Motion for Summary Judgment, pursuant to Mass. R. Civ. P. 56, which was argued and denied on July 10, 1990.

This case was tried on July 10 and October 11, 1990, at which times the proceedings were transcribed by a court-appointed reporter. Six witnesses testified and twenty-nine exhibits were introduced into evidence. Further, 171 Requests for Admissions were filed with the Court. All of the exhibits are incorporated herein for the purpose of an appeal. After considering the evidence, testimony and pertinent documents, I make the following findings of fact:

1. Plaintiffs are the owners of property known as 23 Rockaway Street in Marblehead containing approximately 3,819.1 square feet of land with the Structure thereon ("the Premises"), which lot is shown as Lot 51 on the Marblehead Assessors Map Number 133 ("the Assessors Map") (Exhibit No. 2). Their interests in the Premises were acquired through inheritance from Charles Wade Nickerson. The Premises as presently sized and situated were created by deed dated December 30, 1904, and recorded at Book 1767, Pages 184-186 at the Essex South District Registry of Deeds well prior to the enactment date of the Zoning By-Law ("the By-Law") (See Exhibits Nos. 15A-C).

2. The Structure is 42.8 feet long, 23 feet wide and 20.5 feet high including an upper section that is 42.8 feet long and 13 feet wide. The total floor area of the Structure is approximately 1,540.8 square feet. There is no off-street parking on the Premises. The By-Law requires a minimum lot size of 7,500 square feet and also requires off-street parking (See Exhibit No. 24C), thus the Premises are nonconforming.

3. Plaintiffs are also the owners of a residence on an abutting lot known as 50 Pleasant Street (Lot 49 on the Assessors' map) and containing approximately 3090 square feet.

4. The Structure is a long narrow building of post and beam construction and contains a first floor with two rooms above. The Structure was last inhabited in 1955, before the enactment of the By-Law. While some repairs were made on the structure after that time, it has deteriorated and is now in danger of total collapse and is uninhabitable. The original foundation was composed of loose-laid foundation stones which have become scattered leaving the sills in contact with the ground. The Structure has been attacked by insects and is badly decayed. There are two trees near the front of the Structure which have grown into the foundation. The beams holding the top plates of the walls have been damaged causing the peak of the roof to sag an inch or two.

5. On April 13, 1989 Plaintiffs filed an amended application with the Board (See Exhibit No. 10) for a special permit to allow the removal of the Structure and construction of a single family residence ("the Proposed Structure") in accordance with a site plan ("the Plan") and blueprint (See Exhibit No. 10) submitted on March 28, 1989. Plaintiffs' Proposed Structure would have one section 34 feet long, 23 feet wide and 20.5 feet high at the peak and an adjoining section 15 feet long, 35 feet wide and 23 feet high at the peak, the two sections together forming a "T" shape. The total floor area would be approximately 2,286.5 square feet. The Plan provides no off-street parking.

6. The open area formula of the By-Law, as applied to the Premises, requires ". . . one (1) square foot of open land area (in addition to parking areas on such lot) for each one (1) square foot of gross floor area . . . " (See Exhibit No. 8, Table No. 2). The Proposed Structure has approximately 2,286.5 square feet of gross flor area; the Premises contain 3819.1 square feet in area.

7. The Premises is within the Central Residence District as defined in the By-Law (Exhibit No. 8). In this district, the By-Law requires a minimum lot size of 7,500 square feet and two off-street parking spaces (See Exhibit No. 8, Table No. 2). The Proposed Structure meet all structual requirements except that it does not have two off-street parking spaces, is not on a lot of 7,500 square feet or more, and violates the open area requirement.

8. Article VI, §1B of the By-Law provides substantially the same relief as in G.L. c. 40A, §6 requiring a special permit for any change, extension or alteration to a nonconforming structure predicated on a finding by the Board that such "change, extension or alteration shall not be substantially more detrimental than the existing non-conforming (structure) to the neighborhood."

9. Plaintiffs' application for a special permit was denied on June 5, 1989. The decision of the Board stated:

. . . the specific site, only 3,819.1 sq. ft. of land area, was not appropriate for what would be 2,332 sq. ft. of new construction, not counting the exterior chimney, to replace the original 1,224 sq. ft. structure. Furthermore, the lot is in an area which now requires 7,500 sq. ft. of land for new single family construction, and even though there are many small neighboring lots, many of the houses are well under 2,300 sq. ft. of gross floor area. The lot in question also looks smaller than the other lots because of all the ledge on its street side. The proposed use, if developed, would adversely affect the two sideyard abutters, by being out-of-scale with them, and would negatively affect their enjoyment of light and air. Finally adequate and appropriate facilities (by facilities, the Board admitted that it meant off-street parking spaces) could not be provided on such a small ledge-filled lot for so comparably substantial a house. In addition to the imbalance of house size to lot size, the lot does not include on-site parking for the proposal of 2,332 sq. ft. dwelling . . . (The) undersized nature of the lot argues against permitting a 2,332 sq. ft. structure. The Board felt no need to issue a general ruling on how to calculate the open space formula when there is no parking provided, though one was requested by Mr. Cammett.

10. Edward Nilsson, an architect, prepared a light study of the property that showed the effect of the Proposed Structure on access that the neighboring property had to light in the spring and fall. The study showed that in the morning hours the neighboring property would be denied direct sunlight during those times of the year.

In special permit appeals brought pursuant to G.L.c.40A, §17, the reviewing court hears the matter de nova, makes its own findings of fact and, on the facts so found, affirms the decision of the permit granting authority unless it is determined to be based on some legally untenable ground or is unreasonable, whimsical, capricious or arbitrary. 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). Insofar as the court's review is limited to the legal validity of the permit granting authority's action in granting or denying the special permit, Kiss v. Board of Appeals of Longmeadow, 371 Mass. 147 , 154 (1976); Wolfman v. Board of Appeals of Brookline, 15 Mass. App. Ct. 112 , 119 (1983), it may not substitute its judgment for that of the permit granting authority. Gulf Oil Corp. v. Board of Appeals of Framingham, 355 Mass. 275 , 277-278 (1969).

In the present case, the Board was required to deny a special permit unless it found that the Proposed Structure would not be substantially more detrimental than the Structure to the neighborhood. G.L. c. 40A, §6; Willard v. Board of Appeals of Orleans, 25 Mass. App. Ct. 15 , 20-21 (1987). The Board was concerned with the imbalance of house to lot size and the affect of the Proposed Structure on neighboring lots, both of which are valid concerns given the density of the Proposed Structure in relation to the Premises in an already crowded neighborhood as well as the topography of the Premises. I rule that those concerns are sufficient to negate a positive finding under G.L. c. 40A, §6.

Further, Article I, §5 (b) of the By-Law sets forth criteria to be used by the Board when considering the grant of a special permit and the pertinent sections are as follows: "a) The specific site is an appropriate location for such use or structure and b) The use as developed will not adversely affect the neighborhood."

The Board's decision was not unreasonable in light of those criteria. Accordingly, I find and rule that the Board's finding was justified whether made under G.L. c. 40A, §6 as incorporated in the By-Law or under the ByLaw's special permit provisions.

Plaintiffs argue that under the second "except" clause of the first paragraph of G.L. c. 40A, §6, the By-Law does not apply to the Structure. That clause precludes application of a zoning by­law (and presumably allows a change as of right) "where alteration, reconstruction, extension or structural change to a single or two­family residential structure (lawfully in existence before the first publication of notice of the public hearing on such by-law) does not increase the nonconforming nature of said structure." G.L. c. 40A, §6. To apply that clause in a situation such as this, a Court must ask "whether the proposed alteration or addition would intensify the existing nonconformities or result in additional ones," Willard at 22, and if the answer to that question is in theaffirmative, the Court "must then submit the proposal to the special permit procedure of the second sentence (of G.L. c. 40A, §6) for a determination by the board of the question whether it is substantially more detrimental than the existing nonconforming use to the neighborhood." Fitzsimonds v. Board of Appeals of Chatham, 21 Mass. App. Ct. 53 , 56 (1985).

Here, the Structure is nonconforming in that it is on an undersized lot. Looking at the nonconformity in its entirety, I rule that the increase in size of the Structure as proposed would certainly increase the intensity of the existing nonconformity and thus preclude application of the second "except" clause.

Further, the increase in size of the Structure would violate the open land area requirement of the By-Law (See Exhibit No. 8, Table No. 2) and I rule that such a violation precludes application of the second "except" clause.

Plaintiffs also seek a declaration under G.L. c. 240, §14A that under the By-Law, they are entitled to repair the existing structure in such a way so as not to increase the existing nonconformities. "The primary purpose of G.L. c. 240, §14A is to provide a procedure for a declaratory judgment that will resolve doubts relating to by-law restrictions or the requirement of a zoning ordinance." Whitinsville Retirement Society, Inc. v. Northbridge, 394 Mass. 757 , 762-763 (1985); Banguer Realty Co. v. Acting Building Commissioner of Boston, 389 Mass. 565 , 570 (1983). The evil to be remedied by G.L. c. 240, §14A is a situation such as this where someone may be forced to invest in land and subsequently find out that there are restrictions. Whitinsville at 763. In the present case, I rule that Plaintiffs may repair the structure in its present footprint so as not to increase any existing nonconformity and may use the structure for residential purposes in conformity with the By-Law.

Plaintiffs further claim that the provisions of the By-Law are unconstitutional as applied to the Structure and the governmental intrusion is so great in this case as to amount to a taking. I find insufficient evidence to support those claims and in addition thereto note that Plaintiffs have failed to notify the attorney general as required by G.L. c.231A, §8 and for those reasons those claims must be dismissed.

Accordingly I find that

1. The Board did not exceed its authority in denying Plaintiffs' request for a special permit.

2. Plaintiffs may repair the Structure so as not to increase any existing nonconformities and use the Structure for residential purposes in conformity with the By-Law.

Judgment accordingly.