MISC 161337

June 12, 1991

Dukes, ss.



This is an appeal, under G.L. c. 40A, §17, of the grant of a special permit under Section 04.03.04 of the Tisbury Zoning By-Law ("By-Law") to the defendant Doris L. Stewart.

Trial was held on Friday, May 31, 1991 at Boston at which four witnesses testified and eight exhibits were admitted into evidence, all of which are incorporated herein for the purpose of any appeal. Defendant Stewart has filed a counterclaim alleging the complaint is brought maliciously and in bad faith.

In consideration of all the testimony and exhibits, I find as follows:

1. Parties are in agreement that Locus meets all physical requirements of the By-Law and that all pertinent procedural requirements have been complied with, except as noted below; Plaintiff's challenge is to the proposed use.

2. Sometime in March, 1991 Defendant Stewart filed an application with Defendant Tisbury Zoning Board of Appeals ("Board") for a special permit for a "Bed and Breakfast" under Section 04.03.04 of the By-Law to be conducted at premises known as Captain Morgan Inn located at 8 Edgartown Road, near the intersection of State Road in the Vineyard Haven section of Tisbury ("Locus"). Ms. Stewart has a purchase and sale agreement with Defendant Hanover, present owner, to purchase Locus, subject to the acquisition of certain permits. Premises are located in an R-25 (residential) zone.

3. Ms. Stewart intends to reside at Locus and rent out three rooms and a two-room apartment to a maximum of ten persons. Included in the rental fee will be a "continental" breakfast (limited to coffee, a croissant or roll, and perhaps juice) available during specified, limited hours. No other food will be available at Locus.

4. While the By-Law contains no definition of "Bed and Breakfast", Section 04.03.04 enumerates as one of the uses requiring a permit from the Board:

The renting of rooms to more persons than permitted in section 04.02.

Note: In addition to a Special Permit, Ch. 140, sec. 22 MGL, also requires a license.

Section 04.02.07 authorizes as a permitted use, renting rooms to not more than three persons. Whatever one's understanding of a "Bed and Breakfast" might or might not be, the application when read with the By-Law clearly indicates Ms. Stewart seeks the special permit to rent rooms to more than three persons. Accordingly I find the notice of hearing to have been adequate, and Ms. Stewart's intended use clear. I do not find the providing of complimentary coffee and a roll to guests to constitute a change in the nature of the proposed use, to a degree beyond the intended scope of section 04.03.04.

5. While some guests will have automobiles, considering the proximity of the "Woods Hole-Martha's Vineyard Ferry" and its fare structure, many will not, but in any event Locus will have six off­street parking spaces and will comply with zoning requirements.

6. Locus is, as stated, on Edgartown Road, one of the busiest roads on the island, being a main thoroughfare from and to the ferry landing and Edgartown . There are several businesses in the immediate vicinity. Locus is, as noted, within easy walking distance from the ferry and also the Vineyard Haven commercial area.

7. Both Plaintiff and Defendant agree that there has been a noticeably large growth on the island over the past year or so, and while the largest growth appears to have been in Oak Bluffs, it has also been reflected in Vineyard Haven. As part of this growth, there is an obvious need for accommodations, particularly for persons of average means, as may make use of Ms. Stewart's facilities.

8. Ms. Stewart lived on Martha's Vineyard most of her life and is experienced in the travel business. She has discussed her proposal with business people, including travel agents and numerous acquaintances. Accordingly I find her testimony that her proposal will provide a needed service, increase tax revenues and tourist spending in the community and thereby serve a social, economic and community need to be credible.

9. Considering the number of persons involved and the nature of the accommodations offered I find that for the most part guests will spend their time away from the premises enjoying the recreational, shopping and dining facilities of the Vineyard and accordingly their impact on traffic and safety and on the environment of the immediate neighborhood, if any, will be minimal.

10. Ms. Stewart will make no structural change to the Locus, other than the relocation of certain on-site parking barriers. She will improve the cosmetic appearance with new paint and some landscaping.

11. Without further enumeration I find that Defendant's proposal will, in addition to the foregoing, meet the requirements of Section 04.03.12 of the By-Law and shall, of course, be subject to any restriction contain therein and to whatever permits and/or licenses may be required.

In consideration of the foregoing, I find and rule that the current and likely future housing needs in the Vineyard Haven area and the negligible deleterious effect of Defendant Stewart's proposal on the neighborhood and environment when considered together with the benefits to the town and the general public, justified the action of the Board in granting the special permit to Ms. Stewart on April 11, 1991, that such action did not exceed the authority of the Board and such action is hereby affirmed.

Defendant Stewart has challenged the standing of the Plaintiff to bring this action and has further alleged the appeal was brought in bad faith.

Defendant does not question that when a property owner is entitled to record notice, as in the Plaintiff's case, there is a presumption that the abutter is a person aggrieved. Such presumption, however, is rebuttable. Paulding v. Bruins, 18 Mass. App. Ct. 707 . Such presumption is rebutted if evidence is presented that the abutter does not have a private interest, private right, but only a general interest in seeing the zoning laws enforced. Green v. Board of Appeals of Provincetown, 404 Mass. 571 (1989). Harvard Sq. Defense Fund, Inc. v. Planning Board of Cambridge, 27 Mass. App. Ct. 491 . A review of Plaintiff's Proposed Findings and Trial Brief finds arguments as to interpretation of the By-Law and questions of adequacy of findings of the Board, but as to Plaintiff's interests only the statement ". . . that the grant of this permit totally derogates the meaning, intent and purposes of the zoning by-law." Plaintiff's Trial Brief, p. 3. The only evidence from Plaintiff of any personal interest is Plaintiff's testimony that Defendant Stewart's proposed use of Locus would be commercial in nature and hence would detract from the value of Plaintiff's property. Plaintiff gave no reasons for nor supported such testimony with other evidence. While the testimony of an owner of property as to its fair market value is usually competent, being based on the owner's presumed familiarity with such property, an opinion based solely on the "commercial nature" such as proposed, is by itself at best questionable. Considering all the circumstances, I give Plaintiff's testimony in this regard little weight.

Accordingly I find that the Plaintiff has not shown a private interest adversely affected and accordingly does not have proper standing to bring this complaint, and it must be and hereby is dismissed.

As to Defendant's counterclaim I find that the actions of Plaintiff in the matter before the Court were in furtherance of her appeal from the Board's decision, not in bad faith nor for any ulterior motive, and accordingly the counterclaim is denied.

Judgment accordingly.