JAMES M. CORRY, MAUREEN P. CORRY, FRANCIS K. WHITE, and SUSAN R. WHITE vs. TOWN OF MARSHFIELD ZONING BOARD OF APPEALS, Consisting of Michael P. Harrington, Joseph E. Kelleher, Paul Younker, Arthur Vercollone, Jonathan Russell, and Kevin McMahon.

This case concerns a dispute between plaintiffs James M. and Maureen P. Corry (together, the “Corrys”), and Francis K. and Susan R. White (together, the “Whites”) (altogether, “Plaintiffs”) and defendant Town of Marshfield Zoning Board of Appeals (the “ZBA”) as to whether Plaintiffs should have been granted approval by the ZBA of their plan to construct a dock connected to Plaintiffs’ properties via a pier and ramps to provide water access to Plaintiffs’ properties (defined below as the Project). This dispute arose after the ZBA denied Plaintiffs’ applications for a special permit and variance for the Project on the basis of its concerns that it could negatively impact third parties’ rights in a paper road over which a pier to the proposed dock would run.

After the Project was denied approval by the ZBA, Plaintiffs commenced this action by filing an unverified complaint on February 28, 2014, bywhich Plaintiffs sought (a) judicial review, pursuant to G.L. c. 40A, §17, of the ZBA’s denial of Plaintiffs’ application for a special permit and variance for the Project (“Count 1"), and (b) a declaratory judgment, pursuant to G.L. c. 231A, §1, annulling the ZBA’s denial of approvals of the Project and directing the ZBA to issue said approvals (“Count 2"). The ZBA appeared and filed its answer to Plaintiffs’ complaint on March 2, 2014. A case management conference was held on May 7, 2014, and the parties filed a joint statement of stipulated facts on June 18, 2014.

On July 22, 2014, Plaintiffs filed a motionfor partialsummaryjudgment, which was supported by a memorandum of law; by said motion, Plaintiffs sought summary judgment only on Count 1 of their complaint (i.e., their G.L. c. 40A, §17 appeal) and not as to Count 2 (i.e., their request for a declaratory judgment pursuant to G.L. c. 231A, §1). On July 23, 2014, the ZBA filed their own motion for summary judgment, which was not limited to Count 1 of the complaint. [Note 1] Neither party’s motion included affidavit testimony, but rather incorporated the facts set forth in the parties’ joint statement of stipulated facts. Plaintiffs filed their opposition to ZBA’s motion for summary judgment on July 29, 2014, on which date a hearing on the two motions was held. At that time, the parties’ motions were taken under advisement.

Based upon the parties’ pleadings and the agreed-upon facts set forth in the parties’ motions for summary judgment and joint statement of stipulated facts, I find that the following material facts are not in dispute:

A. The Parties and Subject Properties

1. The Corrys reside at 102 Preston Terrace in Marshfield, Massachusetts, which is composed of two adjacent lots (together, the “Corry Property”) that are situated front to back from Preston Terrace, separated by a paper road known as Ferry Street.

2. The lot that forms the front part of the Corry Property (the “Corry House Lot”) is labeled as lot 24 on a plan entitled “Plan of Building Lots in Marshfield, Mass. on Ferry Hill, surveyed by H.G. Ford, 1888", which is recorded in the Plymouth County Registry of Deeds (the “Registry”) at Plan Book 1, Page 212 (the “1888 Plan”). The Corry House Lot has frontage to the south on Preston Terrace (a public road), and it abuts the Whites’ property to the west and Ferry Street to the north. The Corrys hold title to the Corry House Lot pursuant to a deed dated January 14, 1994 and recorded in the Registry at Book 12589, Page 12. The Corrys’ residence is located on the Corry House Lot.

3. The lot that forms the rear part of the Corry Property (the “Corry Tidelands Lot”) is in line with the Corry House Lot and lies adjacent thereto across Ferry Street. It abuts the Whites’ property to the west. The Corry Tidelands Lot contains undeveloped tidelands extending from the north side of Ferry Street seaward to the South River. The Corrys own this lot pursuant to a deed dated December 12, 2005 and recorded in the Registry at Book 31888, Page 323-324. [Note 2]

4. The Whites reside at 106 Preston Terrace in Marshfield, Massachusetts (together, the “White Property”), which is composed of two adjacent lots that (like the lots comprising the Corry Property) are situated front to back from Preston Terrace, separated by Ferry Street. These two lots abut the Corry Property immediately to the east.

5. The lot that forms the front part of the White Property (the “White House Lot”) is labeled as Lot 25 on the 1888 Plan. The White House Lot has frontage on Preston Terrace (to the south), and it abuts the Corry’s property to the east and Ferry Street to the north. The Whites’ residence is located on the White House Lot. The Whites hold title to this lot pursuant to a deed dated December 28, 2010 and recorded in the Registry at Book 39496, Page 140.

6. The lot that forms the rear part of the White Property (the “White Tidelands Lot”) is in line with the White House Lot and lies adjacent thereto along Ferry Street. [Note 3] It abuts the Corry Property to the east. The White Tidelands Lot contains undeveloped tidelands extending from the north side of Ferry Street seaward to the South River. [Note 4] The Whites hold title to this lot pursuant to the same deed as they hold title to the White House Lot.

7. The Corry House Lot is separated from the Corry Tidelands Lot by Ferry Street -- just as the White House Lot is separated from the White Tidelands Lot. Ferry Street is laid out in the 1888 Plan.

8. At the location where Ferry Street crosses the Corry Property and the White Property (the “Ferry Street Area”), it is unpaved and undeveloped. The parties agree that portions of Ferry Street to the south of Plaintiffs’ properties are improved (the parties do not specify whether this includes paving), but that portions of Ferry Street to the north of Plaintiffs’ properties are obstructed. [Note 5] It is undisputed that the Ferry Street Area is used for foot traffic only (i.e., not for vehicle traffic), and is under tidal waters for portions of every day.

9. There is a seawall along the southern edge of Ferry Street where it abuts the northern boundaries of the Corry House Lot and the White House Lot, and the entirety of Ferry Street is located seaward of the seawall. Mean high water is located within the layout of the Ferry Street Area, which is covered by salt marsh -- that is, “coastal wetland that extends landward up to the highest high tide line . . . and is characterized by plants that are well adapted to or prefer living in, saline soils.” 310 Mass. Code Regs. 10.32(2).

10. The Ferry Street Area is subject to the protections of the Wetlands Protection Act Regulations, 310 Mass. Code Regs. 10.00 - 10.60 (the “Wetlands Regulations”), which were promulgated by the Commissioner of the Department of Environmental Protection (the “DEP”) in accordance with the Wetlands Protection Act, G.L. c. 131, §40 (the “WPA”) for the purpose of providing specific guidelines by which the WPA is to be applied. The Town has established a local conservation commission (the “Commission”), which exercises local regulatory authority under the WPA and the Wetlands Regulations. [Note 6]

11. As a supplement to the WPA and the Wetlands Regulations, the Town has its own Wetlands Protection Bylaw (the “Wetlands Bylaw”), Town of Marshfield Gen. Bylaws, Art. 37, the stated purpose of which is “to protect wetlands values by furthering the legislative purpose embodied in the Wetlands Protection Act through more stringent controls than those promulgated bythe [DEP] under [the Wetlands Regulations].” See Wetlands Bylaw § I (2). [Note 7] Pursuant to the Wetlands Bylaw, the Commission has promulgated its own local Wetlands Protection Regulations (effective date: May 1, 2008) (the “Commission Regulations”) to supplement those promulgated by the DEP.

12. In addition to complying with the WPA (and the Wetlands Regulations) and the Wetlands Bylaw (and the Commission Regulations), the Project is also subject to the requirements of the Town of Marshfield Zoning Bylaws (the “Zoning Bylaw”). Under Article III of the Zoning Bylaw, the Corry Property and the White Property are located in a Residential Waterfront (R-3) zoning district. Additionally, the Corry Property, the White Property, and the Ferry Street Area are all located within a Coastal Wetlands District, pursuant to § 13.02 of the Zoning Bylaw, pursuant to which a special permit for the Project was required.

B. The Project

13. Plaintiffs’ proposal that they submitted to the ZBA for approval (the “Project”) is to construct a 4' x 63' walkway running from the Corry House Lot and a 4' x 10' ramp running from the White House Lot, which would link up and connect to a 4' x 185' pile-supported pier (the “Pier”) that would run along the common property line of the Corry Tidelands Lot and the White Tidelands Lot out into the South River, where it would connect to a 3' x 30' ramp, a 12' x 18' main float, and a 3' x 20' finder float (together, the installations outlined in the Project will be referred to as the “Dock”).

14. The purpose of the Project is to provide access to the White Property and the Corry Property to the South River for recreational boating via the Dock.

15. The Corrys and the Whites intend to share the use of the Dock in common and share the cost to implement the Project and maintain the Dock.

16. The Pier would extend over the Ferry Street Area and connect to the existing seawall on the southwesterly side of Ferry Street, where it would split into the walkway extending to the Corry House Lot and the ramp extending to the White House Lot.

17. The Project is designed to allow pedestrian access by providing room for pedestrians to travel through the Ferry Street Area underneath the Pier, as required by G.L. c. 91 and 310 Mass. Code Regs. 9.35 (3)(b). [Note 8] However, as proposed, several pilings for the Pier would be located within the Ferry Street Area. Plaintiffs allege that these pilings would not block pedestrians access through the Ferry Street Area.

C. Plaintiffs’ Special Permit and Variance Applications

18. Pursuant to Article 2 of the Zoning Bylaw, the ZBA is the special permit granting authority for the Town of Marshfield (the “Town”).

19. On September 30, 2013, Plaintiffs filed with the ZBA an application, pursuant to §13.02 of the Zoning Bylaw, for a special permit to construct the Project (the “Special Permit”). [Note 9]

20. On November 12, 2013, the ZBA conducted a public hearing on Plaintiffs’ application for the Special Permit. This public hearing was continued to November 26, 2013, and then to January 14, 2014.

21. At the public hearing session held on November 12, 2013, the Town Zoning Enforcement Officer (the “ZEO”) opined that the Dock would constitute an “accessory structure” [Note 10] located within the required setbacks required by § 6.10 of the Zoning Bylaw and over a common property line, and, as such, that obtaining approval for the Project would require a variance under § 10.11 of the Zoning Bylaw. [Note 11] At this public hearing, the ZEO also advised the ZBA that Plaintiffs would need to demonstrate that they owned the fee interest in the portions of the Ferry Street Area located within their respective properties, and asked whether any third party’s rights in Ferry Street were going to be “extinguished.”

22. In accordance with the ZEO’s opinion, on December 3, 2013, Plaintiffs filed an application for a variance under § 10.11 of the Zoning Bylaw (the “Variance”), by which they sought an exemption for the Project from the front and side yard setback requirements for structures constructed within the R-3 Zoning District. These requirements are set forth in § 6.10 of the Zoning Bylaw, which establishes mandatory front and side yard setbacks of fifteen feet.

23. On January 14, 2014, the ZBA conducted a public hearing on Plaintiffs’ application, at which Plaintiffs informed the ZBA that they did not intend to extinguish any rights of others to pass over Ferry Street; they also offered to redesign the Pier, if necessary, to eliminate any pilings that, under the current proposal for the Project, would be located within the Ferry Street Area, in order to facilitate access for any third parties that might have the right to use Ferry Street. There is no indication that anyone at this public hearing objected to the proposed Pier based upon its potential to interfere with the public’s right to use Ferry Street as a right of way across Plaintiffs’ properties.

24. On February 11, 2014, the ZBA filed a decision with the Town Clerk for the Town denying Plaintiffs application for the Special Permit and the Variance (the “ZBA Decision”), which stated, in relevant part, as follows:

Testimony at the hearing indicated, and the Board has determined that the applicant(s) propose to construct the ramp over the layout of a paper road. The petitioners argued because they own the fee in the road they own the road and have a right to build on it. The Board disagrees; while a fee in a road may be held by property owners, it does not permit him to interfere with the rights of others, whether granted by easement or otherwise, to use, pass and repass over the road. It is beyond the authority of this Board to determine who has rights to use the road, and then to extinguish those rights.

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A. Standard of Review

The above-noted facts are essentially agreed-upon by the parties; the parties disagree, however, as to the legal significance of those facts, on the basis of which both Plaintiffs and the ZBA have now requested that summary judgment be entered in their favor. [Note 12] Summary judgment is appropriate where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. E.g. Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Comm’y Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c).

In an appeal filed under G.L. c. 40A, § 17, the court’s review of the facts at issue and determinations of the ZBA is de novo. E.g. Davis v. Zon. Bd. of Chatham, 52 Mass. App. Ct. 349 , 355, rev. denied, 435 Mass. 1105 (2001). As such, the findings and determination of the ZBA are accorded no evidentiary value. E.g., Josephs v. Bd. of App. of Brookline, 362 Mass. 290 , 295 (1972). Nonetheless, the court’s review is “circumscribed: the decision of the [ZBA] cannot be disturbed unless it is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary.” Roberts v. Sw. Bell Mobile Sys., Inc., 429 Mass. 478 , 486 (1999) (quotations omitted); see also Britton v. Zon. Bd. of App. Of Gloucester, 59 Mass. App. Ct. 68 , 73 (Mass. App. Ct.) (“a highly deferential bow [is due] to local control over community planning”), rev. denied, 440 Mass. 1105 (2003). In sum, the court’s task is “to ascertain whether the reasons given by the [ZBA to deny approval of the Project] had a substantial basis in fact, or were . . . mere pretexts for arbitrary action or veils for reasons not related to the purposes of the zoning law.” Vazza Props., Inc. v. City Council of Woburn, 1 Mass. App. Ct. 308 , 312 (Mass. App. Ct. 1973); see also Britton, 59 Mass. App. Ct. at 74-75 (the local board’s decision must be supported by a rational view of the facts).

B. Plaintiffs’ “Fundamental Right” to Repair and Improve Ferry Street

Plaintiffs contend first that the ZBA acted improperly in denying approval of the Project on the basis of concerns about third parties’ rights to use Ferry Street as a right of way because Plaintiffs have a “fundamental right” to construct reasonable improvements in and over Ferry Street that do not interfere with the rights of said third parties. In support of this argument, Plaintiffs note that individuals who are entitled to use a private way are permitted to make reasonable repairs and improvements to said way, as long as they have “due regard to the rights and interest of others.” Guillet v. Livernois, 297 Mass. 337 , 340 (1937). To that end, Plaintiffs cite Guillet (as well as Smaland Beach Ass’n v. Genova, 21 Mass. L. Rptr. 258 (Mass. Super. Ct. May 31, 2006)) in support of the proposition that they have a fundamental right to make repairs and improvements to Ferry Street.

This argument is without merit. The facts in Guillet and Smaland are markedly different from those at issue here. Namely, whereas the plaintiffs in Guillet and Smaland had sought to make improvements to ways in order to render them more accessible and suitable for use, here Plaintiffs merely seek to build a structure over -- and, as the Project is currently proposed, partially upon -- Ferry Street. Thus, the Project would not constitute a repair of or improvement to Ferry Street. Indeed, it does not appear (and Plaintiffs do not argue) that the Project is intended to positively impact Ferry Street in any way. Accordingly, the most Plaintiffs could possibly claim is that the Project would have no impact on Ferry Street. However, as discussed, infra, whether this is the case remains to be determined.

In sum, the court is not convinced by Plaintiffs’ argument that the Project would constitute a repair and/or improvement upon Ferry Street that they had a fundamental right to make. Even if Plaintiffs’ did have such a right, they would still need to demonstrate that the Project satisfies the requirements set forth in the Zoning Bylaw, to which we turn next.

C. Whether the Project Qualifies for a Special Permit and Variance

It is undisputed that the Project is subject to the requirements of § 13.02 of the Zoning Bylaw, and that, accordingly, a special permit from the ZBA is required in order to commence the Project. It also appears to be undisputed that the Project is also subject to the requirements of § 10.11 of the Zoning Bylaw, and that a variance from the ZBA is required in order to commence the Project. [Note 13] The question, then, is whether the Project would satisfy the requirements specified in §§10.10 and 10.11 of the Zoning Bylaw for, respectively, a special permit and a variance for the Project. [Note 14]

The ZBA, in issuing the ZBA Decision, did not actually address, on the merits, whether the Project satisfied §§10.10 and 10.11 of the Zoning Bylaw. Rather, having determined that the Project could potentially adversely impact the rights of third parties to use Ferry Street as a right of way, the ZBA decided that, because the identities of these third parties were not known, “[i]t is beyond the authority of this Board to determine who has rights to use the road, and then to extinguish those rights.” Plaintiffs argue that doing so was improper, and that the ZBA should have considered their applications for the Special Permit and the Variance on the merits.

Based upon the agreed-upon facts before the court, it appears that there is no dispute as to the use and usability of the Ferry Street Area. Specifically, the evidence indicates that Ferry Street is submerged for portions of every day, and that obstructions in the vicinity of the Ferry Street Area make it presently impossible to use Ferry Street for anything other than sporadic foot traffic. Plaintiffs argue that such foot traffic would not be negatively impacted, and there are no specific objections as to said impact that the parties have brought to this court’s attention. However, it is beyond dispute that, as presently proposed, the Project contemplates the installation of pilings located within the Ferry Street Area. [Note 15] Thus, it was not unreasonable for the ZBA to conclude that the Project could reasonably be expected to impact foot traffic to some extent.

Where the ZBA erred, however, was in not proceeding to consider the extent and reasonableness of the impact upon foot traffic in the Ferry Street Area. The mere fact that certain persons and/or entities may have the right to use Ferry Street as a footpath does not make it necessary -- for the purpose of assessing whether their rights to use Ferry Street would be impacted by the Project -- to determine who those persons are. Even if every member of the public in the vicinity of the subject properties had the right to use Ferry Street as a footpath, the assessment of the impact of the Project on those rights would be the same. Thus, irrespective of who such persons and/or entities may be, the ZBA should have considered whether their rights would be negatively impacted by the Project. Moreover, any such person and/or entity who may have such rights would be amply protected by the usual process by which members of the public were notified of the proposed Project and provided an opportunity to lodge any concerns. [Note 16]

It appears that the reasoning of the ZBA was based upon a concern that approving the Project would constitute a determination as to third-parties’ rights to use Ferry Street. Because Ferry Street was laid out in the 1888 Plan, it would be reasonable to expect that each of the 179 lots depicted therein may have some easement rights in Ferry Street. The ZBA’s concern here was perfectly legitimate, since it has long been held that it is not the proper role of zoning and planning authorities to adjudicate property rights, such as easements. E.g. Brady v. City Council of Gloucester, 59 Mass. App. Ct. 691 , 696 (2003) (“zoning authorities are not the arbiters of private property disputes between landowners” (citing Hahn v. Planning Bd. of Stoughton, 24 Mass. App. Ct. 553 , 555 (1987))), rev. denied, 440 Mass. 1108 . However, in this instance, the ZBA’s concern was unnecessary, because the Project does not purport to determine or extinguish any person’s rights to use Ferry Street, and even appears to be intended to accommodate such rights or subordinate them to those of the Corrys and Whites. Moreover, a special permit and variance for the Project could even be specifically worded so as to acknowledge that no such extinguishment or subordination of rights was entailed by the granting of approvals for the Project.

In any event, because the ZBA did not consider, on the merits, the issue of whether the Project would unreasonably interfere with third party rights to use Ferry Street, the court must remand this case to the ZBA for a determination of that issue and a ruling, on the merits, as to whether the Project meets the requirements of the Zoning Bylaw for the issuance of a special permit and variance. It is the province of the ZBA, pursuant to the Zoning Bylaw, to regulate the issuance of zoning special permits and variances in the Town. For this court to proceed to the merits of this question without the ZBA having first done so (as Plaintiffs’ Count 2, in essence, requests this court to do) would be to take the place of the ZBA. That is not the proper role of this court on a G.L. c. 40A, §17 appeal. Rather, once the ZBA has issued a determination, on the merits, of Plaintiff’s applications for the Special Permit and Variation, this court may assess the propriety of that determination.

The ZBA’s review, on remand, of the Project shall specifically include a determination of whether the Project would satisfy the Zoning Bylaw’s requirements for the issuance of the Special Permit and Variance, and shall include an assessment of whether the Project would unreasonably interfere with third party rights to use Ferry Street. [Note 17] That assessment shall be guided by the rulings in this Decision, and, in particular, shall be made in view of the actual use of Ferry Street as a sporadic foot path only. If Plaintiffs amend their plans for the Project to remove proposed pilings from the Ferry Street Area, that shall also be taken into consideration by the ZBA. The ZBA’s decision on Plaintiffs’ applications for the Special Permit and the Variance shall issue not later than one hundred (100) days of the issuance of this Decision.

In view of the foregoing discussion, Plaintiffs’ motion for partial summary judgment and the ZBA’s motion for summary judgment are both DENIED in all respects. This matter is hereby REMANDED back to the ZBA for its determination, on the merits, of Plaintiffs’ applications for the Special Permit and the Variance for the Project, which shall be considered in view of the holdings set forth herein. This court will retain jurisdiction over this case, pending the remand of this matter to the ZBA. [Note 18]

Final judgment in this matter will be held pending the ZBA’s remand decision.