MISC 10-442387

February 27, 2012

ESSEX, ss.

Long, J.



After downsizing his initial proposal, defendant Stephen Baratz applied for and received a special permit from the Marblehead Zoning Board of Appeals to expand his non-conforming single-story home at 26 Coolidge Road in Marblehead by adding a second floor. Both G.L. c. 40A, § 6 and the Marblehead Zoning Bylaw allow such an expansion by special permit if a finding is made that “such change, extension or alteration shall not be substantially more detrimental than the existing nonconforming use to the neighborhood.” G.L. c. 40A, § 6. See Bylaw § 200-36.B. The neighborhood is a group of tightly-packed, multi-story homes along an oceanfront cliff. The expansion is the addition of a low, sloping second floor entirely within the existing footprint of the building. The board made the requisite findings and granted the special permit.

That permit has now been challenged in this G.L. c. 40A, § 17 proceeding by plaintiff Sidney Herman who lives at 36 Ticehurst Lane, one street over from the Baratz home. Their streets do not connect, but their lots abut. Mr. Herman claims that the proposed addition to the Baratz house will affect his view, impact his privacy, and make his backyard more “enclosed.” On this basis, he alleges that the board’s decision granting the special permit was “based on legally untenable grounds…unreasonable, arbitrary and not supported by the evidence presented to the board.” Complaint at 3 (Nov. 3, 2010).

The case was tried before me, jury-waived, and a view was taken. Based upon the evidence admitted in connection with the trial, my observations at the view, my assessment of the credibility, weight and inferences to be drawn from the evidence and the view, and as more fully set forth below, I find that Mr. Herman’s allegations of “impact” are neither factually supported nor legally sufficient to overturn the board’s decision. Mr. Baratz has shown his entitlement to the permit, and the board’s decision was soundly based on the facts and within its allowable discretion. That decision is therefore AFFIRMED and Mr. Herman’s appeal is DISMISSED in its entirety, with prejudice.

The Standard of Review

Appeals from special permit decisions are governed by the provisions of G.L. c. 40A, § 17. In such proceedings, the court is required to hear the case de novo, make independent factual findings based solely on the evidence before it, and then determine the legal validity of the board’s decision based upon the facts it has found. Roberts v. Southwestern Bell Mobile Sys. Inc., 429 Mass. 478 , 486 (1999) (citing Bicknell Realty Co. v. Bd. of Appeals of Boston, 330 Mass. 676 , 679 (1953)); Josephs v. Bd. of Appeals of Brookline, 362 Mass. 290 , 295 (1972).

In making factual findings, “the judge is not allowed to give the board’s findings or decision evidentiary weight.” Josephs, 362 Mass. at 295 (citing Devine v. Zoning Bd. of Appeals of Lynn, 332 Mass. 319 , 321-22 (1955)). After finding the facts de novo, the court’s “function on appeal” is “to ascertain whether the reasons given by the [board] had a substantial basis in fact, or were, on the contrary, mere pretexts for arbitrary action or veils for reasons not related to the purposes of the law. If formal requirements have been met, the [board’s] decision cannot be disturbed unless it is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary.” Vazza Properties, Inc. v. City Council of Woburn, 1 Mass. App. Ct. 308 , 312 (1973) (internal citations and quotations omitted).

In determining whether the decision is “based on legally untenable ground,” the court must determine whether it was decidedon a standard, criterion or consideration not permitted by the applicable statutes or by-laws. Here, the approach is deferential only to the extent that the court gives ‘some measure of deference’ to the local board’s interpretation of its own zoning by-laws. In the main, though, the court determines the content and meaning of statutes and by-laws and then decides whether the board has chosen from those sources the proper criteria and standards to use in deciding to grant or to deny the variance or special permit application.

Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 73 (2003) (internal citations omitted).

In determining whether the decision was “unreasonable, whimsical, capricious or arbitrary,” “the question for the court is whether, on the facts the judge has found, any rational board could” come to the same conclusion. Id. at 74. This step is “highly deferential.” Id. While “it is the board’s evaluation of the seriousness of the problem, not the judge’s which is controlling,” Barlow v. Planning Bd. of Wayland, 64 Mass. App. Ct. 314 , 321 (2005) (internal quotations and citations omitted), and “a highly deferential bow [is given] to local control over community planning,” Britton, 59 Mass App. Ct. at 73, deference is not abdication; the board’s judgment must have a sound factual basis. See Britton, 59 Mass. App. Ct. at 74-75 (to be upheld, the board’s decision must be supported by a “rational view of the facts”). If the board’s decision is found to be arbitrary and capricious, the court should annul the decision. See e.g., Colangelo v. Bd. of Appeals of Lexington, 407 Mass. 242 , 246 (1990); Mahoney v. Bd. of Appeals of Winchester, 344 Mass. 598 , 601-02 (1962). If it is not, it must be upheld. Roberts, 429 Mass. at 486.

Facts and Analysis

Plaintiff Sidney Herman owns and lives in the multi-story home at 36 Ticehurst Lane in Marblehead. Defendant Steven Baratz owns and lives with his wife Leslie Sack in the single-story home at 26 Coolidge Road — one street over from the Herman property. The streets do not connect. Both homes are in Marblehead’s Shoreline Single Residence District and the two lots abut. Both are located on a cliff overlooking the ocean. The houses around them are tightly packed multi-story residences. As it presently exists, the Baratz home is a nonconforming structure because it fails to meet the current dimensional requirements of the Marblehead Zoning Bylaw in two respects. First, it does not have 100 feet of frontage, only 71. Second, the bylaw requires side yard setbacks of 25 feet. The existing side yard setbacks on both sides of the house are approximately 12 feet.

The Baratz house is small, and Mr. Baratz wants to expand it by adding an additional floor with approximately 1,183 square feet of living space containing an office, laundry area, master bedroom, master bathroom and small deck. All but the deck are on the side of the building away from Mr. Herman’s house. No new windows will be added on the Herman side, only the door to the deck. The deck, recessed into the roof and shielded from the Herman property by a waist-high wall, is off the master bedroom and faces the ocean. In Marblehead, a special permit is required if the nonconforming building is expanded by more than 10 percent of its gross floor area, expanded in height or lateral dimension or, in the Shoreline District, if the additional space is more than 500 square feet. Marblehead Zoning Bylaw, § 200-30.D(1)(a) & (b). Mr. Baratz’s expansion is outside these limits and thus requires a special permit.

The lot area will be exactly the same before and after. Since the proposed addition is entirely within the building’s current footprint, the setbacks will be exactly the same as well. The only dimensional change is to the height of the building. The Baratz property slopes downward from the street towards the ocean. The additional floor will thus raise the front (streetside) height from 18.10 feet to 29.3 feet measured from street level to the crown of the roof, and the rear (oceanside) height on the side facing Mr. Herman from 21.2 feet to 32.5 feet measured from the lowest grade to the roof crown. The effect of the height change on Mr. Herman’s side, however, is much less than the “maximum height” figure suggests because the roof line slopes towards the Howard house — a feature designed to minimize that effect.

Under the Marblehead zoning bylaw, a special permit for use and dimension may be granted if the board finds that it complies with “[t]he general purpose and intent of the bylaw; [t]he specific site is an appropriate location for such use or building; [t]he use as developed will not adversely affect the neighborhood; [t]here will be no nuisance or serious hazard to vehicles or pedestrians; and [a]dequate and appropriate facilities will be provided for the proper operation of the proposed use.” Bylaw, § 200-36.B; see also G.L. c. 40A, § 6 (finding required that “such change, extension, or alteration shall not be substantially more detrimental than the existing nonconforming use to the neighborhood”). The board made the necessary findings by unanimous vote and granted the special permit, with conditions. [Note 1]

The Baratz expansion meets all the criteria noted above. First, the expansion complies with the purpose of the bylaw, which is to promote the general well-being of Marblehead’s inhabitants. The additional floor is a small addition to an existing residence. Second, the site is an appropriate one for the expansion. It adds a floor to an existing single family home, making it more compatible in style with the other homes nearby. Third, the expansion will not have any adverse effects on its neighbors. The house is, and remains, a single family residence. It is at the end of a cul-de-sac road. There is no evidence that the proposed addition will increase traffic, noise, or affect sunlight. Fourth, there will not be any nuisance or serious hazard to vehicles or pedestrians. As noted above, the space being added is relatively minimal and there is no evidence that it will increase traffic or parking needs. As the Baratz property is located on a dead-end street, traffic patterns will stay the same. Fifth, adequate and appropriate facilities are provided. The property has more than adequate parking both on-street and off, and there will be no material change to its use of municipal and other services.

Mr. Herman’s objections are rather narrow ones which I find have no merit, either factually or legally. There is no evidence that the additional floor on the Baratz home (effectively a half floor on the Herman side) will substantially impact the sunlight on the Herman property. As previously noted, the additional floor will have only a slanting roof on the Herman side and no new high walls. Nothing suggests that the additional floor will block sunlight or cast shade onto the Herman property in any way materially different from that which presently exists.

There will likewise be no material increase in noise, if any. All the living space of the proposed second floor is on the opposite side of the Herman property. There are no additional windows facing Mr. Herman’s house, only the doorway leading to a small deck, and the deck is blocked on Mr. Herman’s side by a half-wall.

The proposed addition to the Baratz property will not have any impact on the traffic or parking around Mr. Herman’s home. Coolidge Road (where the Baratz property is located) and Ticehurst Lane (where the Herman property is located) do not connect with each other. The Hermans do not have to drive down Coolidge Road to get to their residence, nor do the Baratzes have to drive down Ticehurst Lane to get to theirs. Thus, the proposed addition will not impact the traffic or parking conditions of the Herman property in any way.

Mr. Herman argues that the proposed addition will negatively impact his backyard. In his words, it would be as if the “entire house were lifted up,” creating more closure to his backyard. However, the facts show that the proposed addition will not materially affect the current sunken state of Mr. Herman’s backyard. His backyard is already considerably below the Baratz house since the topography along the oceanside cliff slopes sharply down from the Baratz lot to Mr. Herman’s backyard (the Baratz lot is from 4’ to 8’ higher than Mr. Herman’s). Moreover, a high fence already divides the Herman backyard from the Baratz lot, enclosing the backyard. Nothing suggests that the proposed addition will further enclose Mr. Herman’s backyard to any material extent.

Mr. Herman also argues that the proposed addition will obscure his view of the ocean. [Note 2] However, the Baratz’ existing one-story home and the other houses along the street behind it already block Mr. Herman’s ocean view in that location. See Trial Ex. 14 (attached). [Note 3] There is thus no “loss” of ocean view. Since there will be a sloped roof facing the Herman property, not a sheer wall, any loss of “sky” view is minimal.

Mr. Herman’s final complaint is that the proposed addition would create a deck visible from his home, adversely affecting his privacy. I disagree and find otherwise. The deck is a small one. It will be at the corner of the second floor, off the new master bedroom, at the furthest point from Mr. Herman’s house. It is sitting space, not a “party” location. Moreover, the deck will be recessed into the roof with a half-wall shielding it from the Herman house. With the exception of the glass doors leading to the deck, there will be no other windows on the second floor facing the Herman property. Also, Mr. Herman’s house is already surrounded by other houses with windows facing him. Therefore, there will be no material detrimental impact on Mr. Herman’s privacy from the proposed addition.


For the foregoing reasons, the board’s grant of the special permit to Mr. Baratz is AFFIRMED and Mr. Herman’s appeal from that grant is DISMISSED in its entirety, WITH PREJUDICE. Judgment shall enter accordingly.



Photo of Structure


[Note 1] The conditions were as follows:

1. No demolition, building or occupancy permit, whether temporary, conditional or permanent, shall issue for any work on the premises unless and until a copy of this decision, endorsed by the Town Clerk, is recorded in the Registry of Deeds as required by General Laws Chapter 40A. The application for and/or issuance of any such permit prior to the recording of the endorsed copy of this decision shall rendered this special permit null and void; and

2. There shall be no future reduction in “open space” as defined in the Zoning By-Laws without the issuance of a special permit by the Board of Appeals; and

3. There shall be no future additions whatsoever, without a further special permit and or use variance from the Board of Appeals; and

4. The construction shall be in strict conformance with the plans filed and approved by the Board of Appeals.

[Note 2] The parties disagree whether “views” are protected by the Marblehead bylaw. There are no explicit protections of views in the bylaw. So, the dispute is whether the bylaw protects views implicitly. Because I find that Mr. Herman’s views are not negatively impacted by the proposed addition, I need not and do not address the legal question of whether views are protected or not.

[Note 3] Trial Ex. 14 is the view toward the Baratz house from the balcony off Mr. Herman’s second floor (the highest point from which he has a view—everything above is attic). The Baratz house is the one in the foreground, with other houses behind it (e.g. the house with the peaked roof). As can readily be seen from photograph and even more from my observations at the view, the Baratz house and the ones behind it already block Mr. Herman’s view of the ocean horizon in that location (Mr. Herman has commanding views of the ocean and Marblehead harbor in the other direction). Increasing the height of the Baratz house thus has no effect on Mr. Herman’s ocean views.