MISC 138143

October 30, 1991

Essex, ss.



Plaintiff, appealing under G.L. c. 40A, §17, seeks to annul a decision dated October 5, 1989 (the "Decision") of the Zoning Board of Appeals (the "Board") of the Town of Rockport (the "Town") denying Plaintiff a modification of a 1987 special permit (the "1987Permit") under the Zoning By-Law (the "By-Law") of the Town with respect to property ("Locus") owned by Plaintiff in the Town. The 1987 Permit allowed Plaintiff to enlarge and improve eight cottages on Locus, but was subject to a condition that the use be "strictly seasonal"; the modification sought was to remove that condition.

A trial was held on June 3, 1991. A stenographer was appointed to record and transcribe the testimony. Twelve Exhibits (some with multiple parts) were introduced into evidence and all of them are incorporated in this Decision for purposes of any appeal. Exhibit 12 is a 20 paragraph Stipulation as to facts.

The following witnesses testified: Plaintiff; Matt A. Hautala, an expert witness who designed Plaintiff's sewage system; and John A. Pascucci, a former resident of the immediate neighborhood to Locus (all for Plaintiff); and George C. Walima, Building Inspector for the Town (for Defendants).

I find and rule as follows:

1. Plaintiff, Marc R. Sanidas, is the owner of Locus and resides at 323 Granite Street in the Town. The individual Defendants are members and alternate members of the Board.

2. Plaintiff owns seven single-unit and one double unit detached cottages located on Locus, a generally rectangular parcel of land at 323 Granite Street in the Town having 3.57 acres more or less. Locus is bounded to the north by the ocean, to the east by a state park (the Halibut Point State Park), to the south by Bay View Avenue (a private way) and to the west by a restaurant.

3. One approaches Locus by driving northerly on Granite Street, a public way, toward the ocean. Just before the ocean, Granite Street turns sharply to the left and heads toward the neighboring city of Gloucester. Straight ahead at that turn is a 1.54 acre parcel, protruding somewhat into the ocean at Folly Cove, now owned by Plaintiff's sister, on which a restaurant, the Folly Cove Inn, stands, about 250 feet toward the ocean from the turn. A hard right at the turn leads onto Bay View Avenue, a private way which appears from the photographic exhibits to be an unimproved, very narrow dirt track. Plaintiff's house stands at the intersection, just seaward of Bay View Avenue; that is one passes Plaintiff's house to get to the restaurant. The access to the cottages is from Granite Street by a Macadam roadway installd by Plaintiff, the Granite Street end of which passes over the 1.54 acre parcel, connecting with Granite Avenue at its turn to Gloucester.

4. Locus is in a "Single Residence" zoning district, which is the Town's most restrictive district. The Single Residential District in which Locus is located is a large district taking in the Folly Cove, Halibut Point, Hoop Pole Cove and Andrews Point sections of Rockport and measuring about a mile in an east­west direction and about six tenths of a mile in a north-south direction. The principal use allowed is a one family detached dwelling (limited to one single family dwelling per lot). Plaintiff's cottages were from the beginning of zoning prior non­ conforming uses, being multiple cottages on one lot.

5. Plaintiff's immediate neighborhood includes the restaurant abutting Locus; next to the restaurant, going west along Granite Street toward Gloucester, is a seafood-in-the-rough restaurant (the Lobster Pool); and across Granite Street from Locus are a five unit condominium and a silversmith shop. As one travels south on Granite Street, i.e., away from the ocean and toward the center of the Town, there are a number of single family residences, including a number of new homes built since deep water was installed in Granite Street. All of those are on the far (west) side of Granite Street from Locus. On the near side of Granite Street (i.e., behind Locus on the other side of Bay View Avenue) there are no buildings, from which I infer that the state park to the east of Locus also wraps around the rear of Locus.

6. Plaintiff and his parents before him for a total of approximately 37 years have operated the cottages, which predate the By-Law, for seasonal rental. By 1987 the cottages were in an advanced state of disrepair.

7. On November 24, 1987, in Case Number 870905, the Board granted Plaintiff the 1987 Permit, allowing Plaintiff to renovate and/or enlarge his cottages, subject to the condition that the cottages "shall continue to be used only on a strictly seasonal basis". Plaintiff then renovated his cottages, enlarging most of them. The cottages as renovated are presentable, with decks facing the ocean and facing a swimming pool (presumably for common use). They have basements or loft space, or both. All of the cottages have one bedroom except for one which had two. There is some confusion in the record on this point - the 1987 Decision of the Board (see below) and testimony of Mr. Hautala suggested that two of the cottages had two bedrooms. The cottages are, with one exception, lined up in a row, facing the ocean and are close together. Six of the cottages were located within 20 feet of each other in 1982; presumably the 1987 enlargements may have brought them closer, but the record does not show that. According to the Board's 1987 Decision, the cottages were non-conforming because they violated the use provisions of the Single Residence District (which Plaintiff concedes).

8. After the 1987 work; Plaintiff installed deep water and additional sewage facilities for the renovated cottages. I accept Mr. Hautala's testimony that these were adequate for their purpose. Plaintiff testified that he believed the Board continued the seasonal restriction because of the lack of deep water, but there is no independent support for that in the record.

9. In August, 1989, Plaintiff, in Board Case Number 890803, petitioned the Board to modify the 1987 Permit so as to permit year-round occupancy of the cottages. The Board denied Plaintiff's petition by a vote of four to nothing on October 5, 1989, as evidenced by the Decision.

10. In addition to seeking the annulment of the Decision, Plaintiff seeks a permanent injunction against the Town's terminating the water supply to Locus during the off-season, which the Town threatens to do.

11. Plaintiff's first contention is that he was misled as to the need for a special permit in 1987. He argues that his enlargement and renovation of the cottages were permitted as of right under Section ID3 of the By-Law, which provides:

Extension and Enlargement: The Board of Appeals may extend the time and may authorize the enlargement, change or alteration, by special permit, of a non-conforming use or a non-conforming building; provided, there is a finding by said Board that such enlargement, change or alteration shall not be substantially more detrimental to the neighborhood than the existing non-conforming use. A non-conforming building, used exclusively for human habitation as a single or two-family dwelling, may be enlarged, changed or altered without a special permit, provided, the enlargement, change or alteration does not increase the non-conformity of said building and there is no change in use.

12. Plaintiff relies on the second sentence, which is in substance the same as the single/two family exception in the first sentence of the first paragraph of G.L. c. 40A, §6 ("c. 40A, §6"), but adding the words "and there is no change in use."

13. The 1987 improvements included adding foundations and making enlargements; up to 50%. Those invoke the "reconstruction, extension or structural change" language of c. 40A, §6, but also the exception for "single or two-family residential structures".

14. Were the cottages in 1987 "single or two-family residential structures" or "building (s) used exclusively for human habitation as a single or two family dwelling" (under the By-Law)? The definitions of "Single Family Dwelling", Two Family Dwelling", "Dwelling" and "Dwelling Unit" from Article I.C. of the By-Law are as follows:

26. Single family dwelling: A dwelling designed and used for one family.

29. Two family dwelling: A dwelling designed for and used by two families, with not more than two dwelling units.

6. Dwelling: Any building used in whole or in part for human habitation.

7. Dwelling unit: One or more rooms arranged for the use of one or more individuals living together as a single housekeeping unit with cooking, living, sanitary and sleeping facilities.

Defendants suggest that c. 40A, §6 assumes that the single or two family residential structures it exempts must be on separate lots, and that the term does not apply to rental cottages. I find no case law on the question (and Defendants offer no citations). I do not believe aseparate lot requirement is fairly inferable, nor one of owner occupancy. However, I conclude that "single or two family residential structures" is not elastic enough to encompass a colony of "detached cottages of a quasi-motel nature" (to quote from the Amended Complaint) rented by the week (Plaintiff's testimony, Transcript, page 35). I reach the same result as to the language quoted above from the By-Law.

15. Plaintiff also argues that the seasonal limitation was invalid. Were this issue open (see the next paragraph), I would agree with Plaintiff. I so conclude after balancing McAleer v. Board of Appeals of Barnstable, 361 Mass. 317 (1972), where a summer hotel was allowed to become year-round, with Goldman v. Dennis, 375 Mass. 197 (1978) where a by-law expressly prohibiting conversion of cottage colonies to condominiums (and thus year-round use) was allowed and with Sullivan v. Board of Appeals of Harwich, l 5 Mass. App. Ct. 286 (1983) where the Appeals court reviewed this area and recited that the focus is on the specificity with which the local by-law treats the subject. The Rockport By-Law is permissive (to use the Sullivan terminology), lacking the specificity of the by-law in Goldman. In Berliner v. Feldman, 363 Mass. 767 (1973), conversion of an inn in Rockport from summer to year-round use was sustained on a reading of the Town's then By-Law, albeit relating to reconstruction after fire or casualty.

16. However, Plaintiff should not be allowed to attack the seasonal condition; he should have appealed that in 1987, which he did not do. By seeking a "modification", Plaintiff is circumventing the twenty day appeal period in G. L. c. 40, Section 17. In Iodice v. Newton, 397 Mass. 1986 (1986), the Supreme Judicial Court refused to allow a Declaratory Judgment action attacking an allegedly invalid special permit condition. The action was commenced over three years after the granting of the special permit and over a year after the completion of the construction involved. The Supreme Judicial Court held that Mr. Iodice was limited to an appeal under G. L. c. 40A, Section 17 and thus barred for not filing within the twenty days. Plaintiff's request for a "modification", to the extent it attacks the validity of the seasonal limitation, is an "appeal" as much as the declaratory judgment action in Iodice.

17. Plaintiff, in support of his "modification'', cites Huntington v. Zoning Board of Appeals of Hadley, 12 Mass. App. Ct. 710 (1981), upholding the Board in modifying a variance by removing a condition that the variance was only for the life of the owner and could not be transferred. That case is of limited help here; among other factual differences, plaintiff there did not argue that the conditions were invalid when imposed and, secondly, the Board agreed to the modification (the appeal was by a disgruntled neighbor). In this case, then, I take the seasonal limitation as validly imposed and pass to the question of whether the Board acted properly in refusing to modify it.

18. The critical portion of the Board's findings are as follows:

The Board's limitation to seasonal occupancy was not lightly imposed. The use of this property for the past 37 years has been seasonal, so we can presume that the neighborhood has become inured to the impact that such use entails. But to intensify the use beyond that which is customary would be a disservice and detrimental to the neighborhood, and year round use would be far more out of harmony with the intent and purpose of the Bylaw as applied to Single Residential districts. We find the location inappropriate for such intensive use.

Furthermore, to approve petitioner's use of this property on a year-round basis would have the effect of granting a two-step subdivision without observing the formal requirements of the Subdivision Control Law administered by the Planning Board. This Board is unwilling to participate in such an evasion of the law.

19. The uses most immediate to Plaintiff are principally commercial, the restaurants and silversmith shop. Also, Plaintiff is to some extent isolated by the State Park. These facts, among others, would have supported a Board decision in his favor. But close by Locus are year-round residential properties, mostly single family. The Board was justified in finding that the extension of a summer use to a winter use would be unacceptable. Neighbors are used to a general increased level of traffic and other activity in the summer and to find the same level unacceptable in the winter was not arbitrary, whimsical, capricious or unlawful.

20. Some of the residences in the neighborhood became year-round when deep water was installed in Granite Street, a number of years ago. Plaintiff points to the fact that no permission was granted for the conversion and argues that he is being discriminated against. However, there is no indication that any permission was needed and presumably none was.

21. The Board's Decision is upheld. I find no independent basis for finding, as requested by Plaintiff, that the Town may not turn off his water supply in the off-season.

Judgment accordingly.