MISC 143680

February 11, 1991

Barnstable, ss.



Plaintiff appeals under G.L. c. 40A, ยง17 the grant by the Town of Mashpee Board of Appeals (the "Board") of a special permit with respect to property of the defendants, Michael and Beth Moskowitz (the "Moskowitzes").

All defendants moved for Summary Judgement pursuant to Mass. R. Civ. P. 56. Defendants submitted Affidavits of the defendant Michael Moskowitz, David Sanicki (a registered professional land surveyor), Paul Somerville (Shellfish Constable for the Town), Chester Koblinsky (Harbormaster for the Town during the critical period in this case) and Margaret A. Peterson (a former owner of the Moskowitzes' property). Plaintiff submitted an Affidavit of James A. Kobe, Esq., who represented plaintiff before the Board with respect to the special permit.

Defendants moved to strike the Kobe Affidavit. That Affidavit stated, in summary, that Mr. Kobe was plaintiff's counsel during the Board proceedings and that various materials attached to the Affidavit had been submitted to and accepted by the Board. The attachments were copies of letters of Mr. Kobe to the Board dated January 24, 1990 and January 25, 1990. There was attached to January 24, 1990 letter (and thus submitted to the Board) an Affidavit of plaintiff, attached to which, in turn, were fourteen exhibits, which included, among other things copies of the following: an Affidavit by plaintiff submitted to the local Conservation Commission, correspondence to and from various state and federal environmental and other agencies, minutes of meetings before other agencies and a letter to plaintiff from an environmental consultant hired by him.

I have reviewed the Kobe Affidavit for its compliance with Rule 56(e). The only matter as to which Mr. Kobe speaks from his own knowledge is that he represented the plaintiff and submitted a series of documents. The documents themselves are Mr. Kobe's two letters, which present legal argument and arguments based on the Affidavit submitted by plaintiff to the Board. The material attached to the Kobe Affidavit is hearsay (in some instances double) and in some cases also unauthenticated. I do not have an Affidavit from plaintiff, only the copy of an Affidavit he submitted to the Board. I therefore grant defendants' motion to strike.

All parties submitted memoranda, and counsel for all parties argued the motion for Summary Judgment on January 22, 1991. Photographs of the area, current and past, were presented at the argument. On the basis of all the foregoing (other than the Kobe Affidavit) and the pleadings, I find and rule that there is no genuine issue as to any material facts, and further find and rule as follows:

1. Plaintiff is a Florida resident who owns a parcel of land with a residence thereon, located at 51 Popponesset Island Road, in the Town of Mashpee, Massachusetts.

2. Defendants, the Moskowitzes, are Massachusetts residents with a principal residence at 34 William Street, Needham, Massachusetts. The Moskowitzes own a parcel of land with a residence thereon, located at 52 Popponesset Island Road (also known as Lot 146, Popponesset Island Road), Mashpee, adjacent to the property of plaintiff.

3. On December 6, 1989, the Moskowitzes filed an Application for a Special Permit with the Board. The Application indicated that it was applicable to "stairs and walkway" and to "existing dock, ramp, floats, and piles." The Moskowitzes also submitted plans which showed those structures.

4. On January 24, 1990, the Board held a public hearing on the Moskowitzes' application. Defendants Hawver, Makunas, and Govoni were the acting members of the Board.

5. At the close of testimony the Moskowitzes' representative, Mr. Sanicki, requested permission to submit revised plans to the Board. The Board granted Mr. Sanicki's request and on January 26, 1990, Mr. Sanicki submitted revised plans.

6. On February 28, 1990, the Board voted to grant a special permit to the Moskowitzes, with respect to the revised plans submitted by Mr. Sanicki.

7. The object of the requested special permit was limited to a flight of stairs from the area in front of the Moskowitzes' house down to water level and a walkway therefrom to the existing dock, (an existing flight of stairs down to water level at another location is to be abandoned; thus, in effect, the Moskowitzes sought to relocate their stairway), together with the dock itself, including two floats, piles and a ramp (the dock, with these attendant components, is referred to hereinafter as the "Dock" and the Dock, stairs and walkway are referred to as the "Permitted Structures"). It was not clear that permission for the Dock was needed, since some or all of the Dock was already in existence, but the Moskowitzes included it in their application.

8. A dock, in substantially the present form and location as the Dock, has been in place since the early 1960's. The configuration of the two floats forming part of the Dock may have changed, and the Dock was substantially reconstructed and repaired by the Moskowitzes.

9. The Dock has been in use for power and other boats. The Moskowitzes keep two power boats at the Dock. Plaintiff keeps two power boats at a dock in front of his property. The properties of plaintiff and defendants are located in a waterfront neighborhood consisting of many substantial residences, many or most of which have waterfront access and docks.

10. As required by the Mashpee zoning by-law, copies of the plan submitted with the Moskowitzes special permit application were also submitted to the Town Conservation Commission, Shellfish Commission, Inland and Coastal Waterways Committee and Harbormaster.

11. Under the by-law, the Board (and thus, this Court) may consider as approval the failure of any of those four agencies to comment on the proposed special permit. Representatives of the Shellfish and Conservation Commissions did in fact appear at the hearing on the special permit, and their comments were taken into account.

12. The Dock extends into the waterway separating Popponesset Island from Popponesset Beach. The distance from the end of outer float of the Dock to the middle of the channel is approximately 70 feet. The Permitted Structures will not unduly interfere with free passage of travel by water or land and will not cause or contribute to the substantial disruption or degradation, through direct or indirect impacts, including uses allowed by the Permitted Structures themselves, on the marine or coastal environment. While not determinative, it is interesting to note that in order to reach Popponesset Bay and open water, plaintiff does not pass in front of the Moskowitzes' Dock; the Dock is "upstream" of plaintiff, as it were.

13. The Permitted Structures will not have a significant adverse impact on neighboring properties and will not cause excessive levels of noise. Structures such as the Permitted Structures are customary in the neighborhood and the Permitted Structures are as acceptable environmentally as others in the area. The uses of the Permitted structures are entirely consistent with the character of the neighborhood.

14. The by-law provision under which the special permit was granted states that the facilities in question are "subject to securing of all necessary permits from the Town, State and Federal govenment agencies having jurisdiction over inland and/or coastal waterways and wetlands." The Moskowitzes have obtained some, but not all, the myriad permits necessary for waterfront construction. Various applications are now pending.

15. Plaintiff argues that the by-law provision means the special permit could not be granted until all such necessary permits were in hand or, at a minimum, that the Board should have expressly conditioned its decision on such necessary permits being obtained (it did not do so). I do not find either suggestion convincing and am confident that the Mashpee Building Inspector will enforce the by-law with respect to such necessary permits.

16. Plaintiff alleges that the Dock has been constructed in violation of various state and federal requirements. Some or all of those allegations were the subject of other proceedings brought by plaintiff and, in any event, consideration thereof is not required in the context of this case.

17. Plaintiff lays great stress on the question of whether the Dock is an existing structure or a new one, and suggests that the Board was confused on that issue and that it is unclear what relief was granted. The decision of the Board does indicate some initial uncertainty as to whether there was to be any reconstruction or replacement involved and, indeed, the decision indicates that revised plans were requested of the Moskowitzes. Such uncertainty as may have originally existed is not significant, and the Board indicated precisely what relief the special permit granted by referencing the revised plans submitted by the Moskowitzes.

18. Plaintiff has attacked the sufficiency of the Board's findings. An applicable provision of the zoning by-law provides:

The Board shall not grant the special permit if the structure will unduly interfere with free passage of travel by water or land or cause or contribute to the substantial disruption or degradation, through direct or indirect impacts, including uses allowed by said structure, on the marine or coastal environment.

19. The Board's decision includes a report as to the evidence presented to the Board but express findings are limited to the following:

The Board found that the structure will not interfere with the free passage of travel by water or land or cause or contribute to the degradation of the marine environment. The Board determined that granting this Special Permit would be in harmony with the general purpose and intent of the by-laws and would not be a detriment to the Town.

20. This finding obviously mirrors the by-law requirement and to that extent is suspect. However, the finding required and made is specific and it is not evident what further elaboration the Board should be asked to make.

21. Plaintiff points out that the zoning by-law elsewhere provides that a special permit may be issued "only if it is determined that the proposed use or development . . . will not have a significant adverse impact on neighboring properties [and] will not cause excessive levels of noise. . ."

22. The portion of the Board's finding that may respond to this provision is the finding that "the structure . . . would not be a detriment to the Town."

23. While greater elaboraion of findings by the Board would have been desireable, the lack thereof in the circumstances of this case is not fatal. What is involved in this case, after all, is moving a flight of stairs and reconstructing an existing dock substantially in place, and that in a community where boating is a common activity, indeed the prime attraction. The Town officials charged with protecting the environment and navigation have reviewed the Permitted Facilities and their suggestions have been followed. As required, I have, above, separately made the findings required.

I find and rule that the granting of the special permit by the Board was within the authority of the Board, that no modification of the Board's decision is necessary and that the decision of the Board was not arbitrary, capricious, whimsical or based on a legally untenable ground.

Judgment accordingly.