MISC 139773

June 13, 1991

Essex, ss.



The plaintiffs, owners of a parcel of land off Casino Road in Marblehead in the County of Essex, appeal pursuant to the provisions of G.L. c. 40A, §17 from the denial by the Board of Appeals of the Town of Marblehead (the "ZBA") of a special permit granting an exception to the dimensional requirements of the Marblehead Zoning By-law. The Court granted to the owners of three abutting properties, Ernest A. Siciliano and Gilda M. Siciliano, Peter Neumann and Maureen Neumann and Bruce E. Dyson, Lloyd G. Dyson, Jr. and Carol L. Rice, Trustees, the right to intervene. It was counsel for the interveners who appeared for the defendants at the trial and litigated the denial of the special permit on behalf of the defendants; town counsel took no part in the trial.

A trial was held at the Land Court on February 15, 1991 and March 4, 1991 on each of which days a stenographer was appointed to record and transcribe the testimony. Twenty-three exhibits, many of multiple parts, were introduced into evidence, and two chalks were filed to assist the Court, all of which are incorporated herein for the purpose of any appeal. The plaintiff was his sole witness in his case in chief although his architect, David F. Jaquith, was called as a rebuttal witness. The defendants called David Delany, Chairman of the ZBA, Peter Neumann, Ernest Siciliano, Mary Dyson and Lloyd G. Dyson, Jr. as witnesses. I remand the matter to the ZBA to reconsider the application in the light of the findings of fact and conclusions of law set forth herein.

The parties entered into an agreed statement of facts (Exhibit No. l) based on which I accordingly find as follows:

1. By this action, filed on December 14, 1989, Frederic H. Federman and Kelie A. Federman, owners of real property known as Lot 9B off Casino Road, Marblehead, Massachusetts, seek judicial review, pursuant to Massachusetts General Laws, Chapter 40A, Section 17 of a Decision of the defendant, Board of Appeals of the Town of Marblehead ("Board") filed with the Town Clerk on November 27, 1989, being Decision No. 1367 ("Decision") denying the plaintiff's September 28, 1989 Application for a Special Permit to construct a "single family house to be located in a single residence district on less than 10,000 square feet with less than 100' frontage, not more than 35' in height based on the average mean grade of the footprint of the proposed dwelling within 15' from the side lot lines with less than the required 10' setback from a way.

2. The plaintiffs acquired title to Locus for consideration paid of $16,000.00 by deed of Eva R. Lodge dated January 27, 1986, recorded with the Essex South District Registry of Deeds, Book 8289, Page 508.

3. Locus is located in the area of the Town of Marblehead known as the "Clifton Heights Area". The "Clifton Heights Area" generally consists of lots [of] various sizes which are not uniform. The lots are all used for single family dwellings. The locus is a vacant lot in a single residence district. The current Zoning By-law, Article IV, Section IV.2 requires 10,000 square feet, 100 feet of frontage, 20 foot setback and 15 foot side yard and rear yard.

4. Lot 9B off Casino Road is shown on Marblehead Assessor's Map #46 as Lot 29 containing 9,220 square feet. Lot 9B was created by a recorded subdivision plan dated October, 1928, recorded at Book 2790, Page 225, Essex South District Registry of Deeds. It presently has frontage on a private way to which the public has acquired a right of access. At all relevant tlmes, the, locus had some frontage on a "street" as defined in Article II of the Zoning By-law.

5. The Marblehead Zoning By-law requiring 10,000 square feet in a single residence district and 100 feet of frontage was accepted in September of 1950. At that time, the subject lot, now known as Lot 9B, was owned by Edwin A. Merrill together with several others in common ownership. The zoning requirements as to lot size and frontage have remained unchanged since 1950. Prior to 1950, the minimum lot size was 7,500 square feet.

6. The subject lot, Lot 9B, is not protected under the so­called "grandfather" provisions of the By-Law and of Chapter 40A of the Massachusetts General Laws.

7. Lot 9B is bisected by a private right of way to which the public has no right of access as shown on a plan of land prepared for Fred Federman dated March 29, 1989 and on a plan of land by Rolf R. Newman dated March, 1910 and recorded at Plan Book 19, Plan 43, Essex South District Registry of Deeds.

8. As shown on a plan of land prepared for Fred Federman dated March 29, 1989, the Locus, which is depicted thereon, contains 9,039 +/- square feet of land, with 75 feet of frontage on Casino Road. A plan prepared by Carter & Towers Engineering Corp. for the property of the abutters, Peter and Maureen Neumann, shows Lot 9B as having less than 75 feet of frontage.

9. Locus is situated within the Single Residence ("S-R") Zoning District of Marblehead, in which district single-family residential dwellings are permitted as a matter of right (see By- Law Article IV, Section IV.2, Table 1). The following are the dimensional requirements of the S-R District:

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: One square foot of open land area (in addition to parking areas on such lot) for each one square foot of gross floor area.

(Se By-Law Article V, Section V.1, Table 2.) (May, 1989)

10. The Town of Marblehead allows for exceptions to the dimensional requirements by special permit. The legal validity of this process was upheld in Land Court Miscellaneous Case No. 128863, dated September 14, 1989. (See By-Law Article I, Section 1.5A.)

11. Locus lies within the S-R District, which district has not had any changes in classification, permitted uses, area or dimensional requirements since 1965, the minimum lot size, since that date, being 10,000 square feet, except that the minimum open area per lot was added in May of 1989. (See #9 above.)

12. In granting a special permit pursuant to Article I, Section l.5B of the By-Laws, the By-Laws provide tht the Board shall consider the following criteria before granting a special permit;

l.5B The Board of Appeals shall consider the following criteria before granting a special permit:

a. The specific site is an appropriate loction 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 minimum [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 offstreet 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 and size and lighting of signs.

13. On August 26, 1988, a building permit for a single family dwelling was issued as Permit No. 3614 to Frederick and Kelie Federman. It was revoked by letters from the Building Inspector of the Town of Marblehead dated November 1, 1988 and November 15, 1988.

14. On June 9, 1989, the plaintiffs applied for a special permit to construct a single family house on Lot 9B. After notice and publication, a hearing was held on July 25, 1989 at the Marblehead Town Hall. The Decision of the hearing was filed with the Town Clerk on August 8, 1989 and stated:

In the course of the ensuing discussion the concerns of several Board members regarding the size of the structure and the manner in which it was to be situated, were advanced. Whereupon counsel for the applicant conferred with his client. He then requested that the property owner be permitted to withdraw his application without prejudice. There being no opposition, the Board voted unanimously to permit the withdrawal of the application for Special Permit, without prejudice.

15. Thereafter on September 28, 1989, the plaintiffs filed a second application for special permit to construct a single family home (hereinafter referred to as "Second Application').

16. On November 14, 1989, a public hearing was held at Town Hall, Marblehead, Massachusetts after which the members voted unanimously to deny the plaintiff's application for special permit.

17. Members of the Board of Appeals made the following findings in their Decision of November 27, 1989:

The property is located in a single residence district. The Board found that the buildable portion of the Lot 9B is substantially less than 9,000 square feet owing to the private right of way which bisects it. The Board also found that the proposed structure would be built on ledge placing it well above grade as compared to the surrounding parcels. The Board found that the size and height of the proposed structure to be excessive, all the more so given the existence of the ledge, and the right of way. Further, the Board found that the site is not an appropriate one for the proposed structure, and that the proposed structure would be detrimental to and have an adverse effect upon the neighborhood.

I further find and rule as follows:

18. The original subdivision of the neighborhood is entitled "Record Plan of Property of Charles M. Conant (formerly Estate of C. H. Isburgh) Clifton Heights Marblehead, Mass." dated March 1910 by Rolf R. Newman recorded with Essex South District Deeds, Book of Plans No. 19, Plan No. 43 (to which Registry of Deeds all recording references herein refer) and shows a large home in the very location where the plaintiffs wish to build (Exhibit No. 2).

The plan shows the prevalence of ledge in the neighborhood, but it does not indicate its presence on locus.

19. The male plaintiff's grandparents owned propery adjoining Lot 9B, and he grew up playing in the area. Thus he is very familiar accordingly with the neighborhood. His grandparents' property has passed by will to Mr. Federman's aunt. He and his wife acquired his lot from his great aunt Eva R. Lodge. The objections to the grant of a special permit came not from his relatives or their successors, but from a neighbor to the north, northeast and southeast. In at least one instance the lot of the abutter is smaller than locus. The gross floor area of the three existing houses appear to be approximately the same as the plaintiffs' proposed house.

20. The revised house plans decrease the size of the house the plaintiffs wished to build by one-third and moved it physically further from the Siciliano and Dyson properties. Accordingly it is now the area of the parcel which is approximately 800 to 1,000 square feet less than the minimum required lot size, the frontage and one of the side yard setbacks which do not meet the minimum dimensionalrequirements of the by-law.

21. The neighborhood in which the locus is situated as shown on Assessors' Map 46 (Exhibit No. 7) shows a spectrum of lot sizes,many of which are smaller than locus. Neither the size of the lot or its frontage, however, are the real problem here. The neighbors have focused their discontent with the house plans (Exhibit No. 23) on the bulk and height of the structure.

22. Many of the homes in this section of Marblehead are large Victorian summer cottages converted to year-round living, shingled with wide porches converted to year-round residences. Historically bulk and lot density were not viewed as problems; an insufficent number of bedrooms was. The exhibits introduced into evidence clearly show the nature of the area's architecture. Both the Neumann and Siciliano houses reflect the turn of the century styles; the Dyson house, on the other hand, is a hybrid, a two story flattop building of indistinguishable heritage situated down grade from the plaintiffs' lot.

23. In addition to the prevalence of large homes the topography of Clifton Heights is rugged with ledge and rock prevailing naturally and hills and dales predominating. The peak of the plaintiffs' lot is higher than that of the defendant interveners' land, particularly that of the Dyson trustees, but that is a result of natural causes, not man's occupation. The place on their land where the plaintiffs wish to site their home is the natural location, both because of the width of the lot and the ocean view.

24. The by-law limits maximum height of a building to thirty-five feet and requires height to be

measured from the highest point of any roof or parapet to the lowest point of the original grade or the lowest point of the finished grade of the ground adjoining the building, whichever makes the building height greater. Height limitations shall not apply to chimneys, spires, cupolas, TV antennas, Churches, Schools, Hospitals, Public Libraries, Public Museums, Parish Houses, Water Towers, and Municipal Buildings or structures.

25. There is a disagreement between the parties as to whether the definition requires the building height to be measured from the bottom of the stairs in the bulkhead or from the finished grade. I find and rule that the latter is determinative and that the height of the building is well within the by-law standard.

26. The ledge will be incorporated into the basement and will not be removed by blasting. The utility services will be in the remainder of the basement as permitted by the by-law.

27. The plaintiffs' home has been designed by its architect to incorporate the features of houses characteristic of the neighborhood. It will be shingled with porches and trellises. Size wise it is compatible with the era to which other homes date and will not be a California stucco misfit. It appears from the plans to be an attractive residence which will add to the neighborhood. Its style with its porches, size and Victorian embellishments is being followed increasingly in Massachusetts, a nostalgic return to the past.

The decision of the Board is wrong as a matter of law and therefore is remanded to it. Neither the ledge nor the right of way across it reduce the amount of the open space and are immaterial in reaching a determination as to the propriety of the grant of a special permit. God gave this lot its special characteristics, and the owner should be able to utilize them. Two of the three homes of the interveners are violative of the sideline setback requirements of the by-law; one of these owners is the closest abutter who can hardly be heard to say the plaintiffs' proposed home is too close when it is the Siciliano house which is nonconforming. Both the Neumann and Siciliano houses are nearly as large as that proposed by the plaintiffs, and the Siciliano lot is significantly smaller. If the natural height of the lot causes the height of the new home to seem greater, natural topography does not violate zoning laws. Moreover, there is no easement of light or air within the Commonwealth. The Federman house has been once reduced in size and lowered in height. There is no reason to insist that a one story ranch house or cottage be built on a natural site that happens to be higher than the topography of the lots on which the nearby homes have been built.

It is clear that the plaintiffs' application meets the requirements of Section 1.5B c and d of the by-law. Since the use is for a single family home, a permitted use, the location appears appropriate for the use, as required by 1.5Ba and also for the structure as I have tried to make clear; the plaintiffs appear to have chosen the only practical site on the lot in accordance with Section 1.5Ba and one violative of yard requirements not adjacent to any of the interveners. The only other criteria requires that "the use as developed will not adversely affect the neighborhood". It is hard for me to see how the construction of a house that requires a special permit not for the reasons for which the neighbors oppose but for dimensional requrements they find immaterial legally will adversely affect the neighborhood. The Board on remand should weigh the benefits of the scaled down home as against the original plans which the plaintiffs might be able to build of right if they acquired a small adjoining piece of property. The plaintiffs' lot has been separately shown since 1930, and it is only the ownership by Mr. Federman's great aunt of an adjoining parcel that denied them the benefits of grandfathering. Some accommodations should be reached between the plaintiffs and the ZBA; the latter now should reconsider the grant of the special permit in the light of this decision.

The plaintiffs submitted lengthy requests for findings of fact and rulings of law but having made my own, I have not acted specifically on these.

Judgment accordingly.