Defendants Ralph Sevinor and Meryl Sevinor (Sevinors) applied for and received a special permit from the Marblehead Zoning Board of Appeals (Board) to raze and reconstruct their nonconforming single family home at 22 Foster Street in Marblehead. Both G.L. c. 40A, § 6, and the Marblehead Zoning Bylaw (Bylaw) allow such an expansion by special permit if a finding is made that the expansion shall not be substantially more detrimental than the existing nonconforming use to the neighborhood. G.L. c. 40A, § 6; Exh. 2, § 200-36B. The Board made findings and granted the special permit. The special permit has now been challenged in this proceeding under G.L. c. 40A, § 17, by neighbors William J. Nutt, Deborah S. Nutt, Kevin J. McKernan, Rebecca A. McKernan, Stein I. Skaane, and Jean Cragin Skaane (collectively the Plaintiffs). The Plaintiffs allege 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. This case was tried before me and a view was taken. Based upon the evidence admitted in connection with the trial, observations at the view, and my assessment of the credibility, weight, and inferences drawn from the evidence, I find that the Board's decision was soundly based on the facts and within its allowable discretion.
Procedural History
Plaintiffs filed the Complaint (Compl.) on December 9, 2015. A case management conference was held on January 19, 2016. A pre-trial conference was held on July 27, 2016, where the defendants stipulated that the plaintiffs have a presumption of standing and that they would not seek to rebut the presumption. A view was taken on November 9, 2016. The first day of trial was held on November 10, 2016. Exhibits 1-22 were marked. Testimony was heard from Meryl Sevinor, Walter Jacob, and Robert Ives for the defendants, after which defendants rested. Plaintiffs filed a Motion for a Required Finding, which the court heard and denied without prejudice. Derek Bloom testified for the plaintiffs, after which the trial was continued. The second day of trial was held on December 5, 2016. Exhibit 23 was marked. Derek Bloom testified for the plaintiffs, after which the plaintiffs rested. Plaintiffs reasserted their Motion for a Required Finding, which the court heard and denied without prejudice.
Plaintiffs' Post-Trial Brief and Post-Trial Brief of Defendants Ralph Sevinor and Meryl Sevinor were filed on January 31, 2017. Closing arguments were heard on February 15, 2017, and the court took the case under advisement. This Decision follows.
Findings of Fact
Based on the view, the undisputed facts, the exhibits, the testimony at trial, and my assessment of credibility, I make the following findings of fact.
1. Plaintiffs William J. Nutt and Deborah S. Nutt (Nutts) own property located at 20 Foster Street in Marblehead (Nutt Property). Exh. 1, ¶ 1.
2. Plaintiffs Kevin J. McKernan and Rebecca A. McKernan (McKernans) own property located at 24 Forest Street in Marblehead (McKernan Property). Exh. 1, ¶ 1.
3. Plaintiffs Stein I. Skaane and Jean Cragin Skaane (Skaanes) own property at 16 Foster Street in Marblehead (Skaane Property). Exh. 1, ¶ 1.
4. Defendants Ralph Sevinor and Meryl Sevinor (Sevinors) reside at 10 Rolleston Road in Marblehead. In 2011, the Sevinors purchased the property at 22 Foster Street in Marblehead (Sevinor Property). The Sevinor Property slopes down from Foster Street towards Marblehead Harbor, east to west, and also slopes down from its north side to its south side towards the Nutt Property. Exh. 1, ¶ 2; Exhs. 10, 22; Tr. 1:21-23; view.
5. The McKernan Property abuts the Sevinor Property to the north and is located up gradient. The Nutt Property abuts the Sevinor Property to the south and is down gradient. The Skaane Property is an abutter to an abutter of the Sevinor Property. Contour lines of the properties are shown on a plan developed by Hayes Engineering, Inc. dated February 20, 2015, overlaying the existing and proposed conditions at the Sevinor Property with topography lines (Overlay Plan). The only contour lines shown on the Overlay Plan near the southern boundary line of the Sevinor Property are located on the Nutt Property and touch the boundary between the Nutt and Sevinor Properties. There are no contour lines extending from the Sevinor Property's southern boundary into the Sevinor Property itself. The Overlay Plan is attached here as Exhibit A. Exh. 1, ¶ 4; Exh. 22; Tr. 1:136-137; view.
6. The properties are all located on Marblehead Neck with frontage on Marblehead Harbor. There are large single family dwellings on all of the properties with the exception of the Sevinor Property. Exh. 19; view.
7. All the parties' properties are located in the Shoreline Single Residence District (Shoreline District) as defined by the Bylaw and Zoning Map. Exh. 1, ¶ 3; Exhs. 2-3.
8. In the Shoreline District, the minimal lot area required is 35,000 square feet and the frontage is 100 feet. The minimum required front yard setback is 20 feet, the side yard setback is 25 feet, and the rear yard setback is 15 feet. The maximum allowable building height is 30 feet. The minimum open area ratio is 1:1. Exh. 1, ¶ 6; Exh. 2.
9. When the Sevinors first acquired their property in 2011, there was a much smaller house on the McKernan Property consisting of 5,680 square feet. Since then, the residence on the McKernan Property was razed and a new, much larger home was built. The McKernans required a special permit from the Board for this reconstruction. The newly built McKernan dwelling is taller and has a gross floor area of 13,004 feet, over double the gross floor area of the prior residence. Tr. 1:34-39.
10. The Sevinor Property is a nonconforming lot with a lot area of approximately 14,226 square feet and only 71.24 feet of frontage. It is currently improved with an accessory building, detached garage, and a single family dwelling. The existing dwelling violates side and rear yard setbacks. It has a side yard setback of .9 feet on the southerly boundary, along which the present foundation wall exists, with the detached garage having a side yard setback of 5.9 feet on the northerly boundary. The rear yard setback is approximately 5 feet from the high water line of the harbor. The height of the existing dwelling of 35.4 feet, measured from the existing low grade point of 10.1 feet, is also nonconforming. The existing dwelling does conform to the front yard setback with 131.6 feet and the open area ratio with a ratio of 1:1.82. The basement level is at 14.92 feet and the first floor level is at 23 feet in elevation. A plan depicting the elevations of the existing dwelling is attached as Exhibit B. The Sevinors wish to replace the existing dwelling with a new dwelling that will function as their primary residence. Exh. 1, ¶ 7; Exhs. 5-7; view.
11. The Sevinors first consulted with architects Walter Jacobs (Jacobs) and Thad Siesmasko (Siesmasko) to develop plans for the renovation of the existing dwelling. Siemasko drew plans for the proposed dwelling. Under § 200-37 of the Bylaw, the proposed construction required site plan approval from the Marblehead Planning Board. The Sevinors filed an application with the Planning Board for a site plan special permit where they submitted the plans by Siemasko. The Planning Board approved the site plans and issued the special permit. William Nutt appealed the approval of the site plan special permit. The Sevinors withdrew their application with the Planning Board to move forward on those plans. The Sevinors decided to work with another architect, Jacobs, to develop plans to raze and build a new dwelling on the Sevinor Property. The Sevinors then applied to the Planning Board for site plan approval of the new plans by Jacobs. Tr. 1:24-28, 44; Exhs. 2, 8, 11, 18.
12. The Planning Board conducted a site visit at the Sevinor Property. After a few changes to the design of the proposed house, including eliminating a third floor, reducing the floor-by-floor heights, moving the house farther from the shoreline, and changing the configuration of the driveway, the Planning Board granted the Sevinors a site plan special permit on July 16, 2015. There was no appeal of this site plan special permit approval decision by the Planning Board. Tr. 1:27-30, 44, 58-59; Exh. 13.
13. In the site plan special permit, the Planning Board made findings, including:
(5) The new building as designed is smaller than the abutting properties and therefore its size respect the historical hierarchy and remains subordinate to the larger properties in the area.
(6) The building as originally proposed was altered through the Planning Board process in order to reduce the massing at the shoreline and height to minimize the negative effects on the views from the shoreline and neighboring properties. The proposed third floor of the building was removed, the height lowered, and the building setback a greater distance from the shore line and the southern property line.
Exh. 13.
14. The final plans by Jacobs submitted to the Planning Board show the Sevinors' proposed house as two stories with a basement below grade. It will have a side yard setback on the southerly boundary of 5 feet and a side yard setback on the northerly boundary of 12.2 feet after the detached garage is removed. Since the proposed house will be pushed back so that it is approximately 27 feet from the harbor, it will conform to the rear yard setback. It will also continue to conform to the front yard setback with 113.3 feet and the open area ratio with a ratio of 1:1.4. The foundation wall for the existing dwelling will remain on the western and southern sides of the property, but function as a retaining wall, with the new foundation of the proposed dwelling located 5 feet inside the boundary line. When standing on the Nutt Property along the southern boundary of the Sevinor Property closest to the harbor, the top of the old foundation wall/new retaining wall would be above the average person's head. The retaining wall will be built up slightly in certain portions along the southern boundary near the driveway and an in-ground swimming pool with a railing will be installed to the west of the dwelling on the ocean side. On the application, the height of the proposed house is shown as 30 feet, which conforms to the maximum allowable height. A plan of the proposed dwelling with the relevant elevations and height depicted is attached as Exhibit C. Exh. 1, ¶ 7; Exhs. 5-6, 8, 11, 14, 17-18; Tr. 1:41-42, 95-97, 111-112, 122-124, 133-134.
15. Jacobs testified that he measured the height of the proposed dwelling from the low grade point at elevation 23 feet as shown on a proposed plot plan of the Sevinor Property prepared by Hayes Engineering dated July 29, 2015 (Hayes Plan), attached here as Exhibit D. Jacobs used that grade as the bottom measurement to design a dwelling with a maximum height of 30 feet. Jacobs testified that the dwelling's height at 30 feet represents only a small portion of the actual height of the dwelling based on elevation as the Sevinor Property slopes up towards Foster Street. Utilizing the low grade point of 23 feet, only about 5% of the building has a height of 30 feet above the actual ground, with 15% below 27 feet in height as measured from the actual ground, 45% below 25.5 feet, and 35% below 23.5 feet. Tr. 1:95-97, 159; Exhs. 8-9, 14.
16. The proposed dwelling would be located 39 feet from the dwelling on the Nutt Property and 37 feet from the dwelling on the McKernan Property. Tr. 1:37-38; view.
17. The proposed construction would not increase any setback nonconformity, but reduces existing nonconformities with regard to height and side yard setbacks and eliminates the rear yard setback nonconformity. If its height is calculated correctly (an issue to be decided in this case), the dwelling conforms with the Bylaw's height requirement, eliminating the height nonconformity of the existing dwelling. Exhs. 2, 8.
18. On July 30, 2015, the Sevinors filed an application for a special permit with the Board seeking zoning relief for their property to raze the existing nonconforming house and garage in order to construct the proposed single family house on the nonconforming lot. Included with the application were the architectural plans prepared by Jacobs showing the existing and proposed dwellings, and the Hayes Plan. The plans presented to the Board were the same as those approved by the Planning Board. A copy of the decision of the Planning Board was also provided to the Board. The application states that the Sevinor Property has less than the required lot area, frontage, and lot width, and that the existing dwelling does not satisfy the rear and side yard setbacks and exceeds the maximum height. The application provides that the new construction exceeds the 10% expansion for a nonconforming building and is still nonconforming as to the side yard setbacks. As to height, there is an asterisk relating to the height of the proposed dwelling with a note that states "See Letter to ZBA R.S. Ives 7-29-2015." Meryl Sevinor testified that abutters had concerns with the height of the proposed dwelling at the hearings in front of the Planning Board. After going to the building commissioner to review their interpretation of height, the Sevinors added the asterisk in reference to the height so that people would pay attention to this feature as they reviewed the plans in the application. Exhs. 5, 11; Compl. ¶ 10; Tr. 1:59-62, 65-66, 75-76.
19. Section 200-1B of the Bylaw states that to achieve its intent and purpose the "Bylaw regulates the development and use of land, and the height, size, location, and use of buildings and structures thereon in order to promote the health, safety, convenience, and general welfare of the inhabitants of the Town of Marblehead." Exh. 2, § 200-1B.
20. Section 200-7 of the Bylaw defines "height of a building" as follows:
Building height shall be measured from the highest point of any roof or parapet to the lowest point of the original grade or the lowest point to the finished grade of the ground adjoining the building, whichever makes the building height greater. Height limitations shall not apply to chimneys, receiving TV antennas, or steeples or places of worship or municipal buildings.
Exh. 2, § 200-7.
21. Section 200-7 of the Bylaw defines "original grade" as: "The level of the land at a construction site prior to site preparation." Exh. 2, § 200-7.
22. Section 200-7 of the Bylaw defines "site preparation" as:
Preparation for construction which includes, but is not limited to the following: surveying and related staking of the site; removal and moving of standing buildings and leveling of the consequent debris; cleaning and removal of brush, trees, and general debris; grading of site and the moving, removal and delivery of earth related to grading; scraping of earth to expose ledge; the blasting of ledge and removal of resultant debris.
Exh. 2, § 200-7.
23. The Board held hearings on the special permit application on July 29, 2015 and October 27, 2015. Exh. 6; Compl. ¶ 14.
24. After the first hearing, the Board sought clarification from the building commissioner, who is also the zoning enforcement officer, regarding the height calculations. The building commissioner, Robert Ives (Ives), testified that he reviewed over 1,000 applications in serving as building commissioner from 2003 to 2016, the majority of which had existing nonconformities. After reviewing the Sevinors' application, Ives provided a letter dated August 7, 2015 and revised on September 14, 2015, stating that "the lowest original grade for the proposed dwelling at 22 Foster Street is EL=23.0 as indicated by the plan by Hayes Engineering dated Rev: July 29, 2015." This is the Hayes Plan, attached here as Exhibit D. In his letter to the Board, Ives also stated that "[i]f any part of the perimeter of a proposed foundation happens to be located such that it falls within the footprint of an existing building (including one with a basement) it is not the intent of the By-Law that the lowest point of grade of the ground adjoining the proposed foundation would be taken from a basement floor within the existing footprint. In such a case the existing basement would be considered to be part of the excavation required for the proposed structure and would not contribute to the height calculation." Ives similarly testified that when a building is razed with a basement floor he does not consider the basement floor to be the grade level of the property, but, rather, he looks at the existing and proposed grade around the perimeter of the footprint of the building. Ives attested that he relied on the Hayes Plan since it was a plan stamped by a professional land surveyor. This was the only information provided to him regarding grade. Ives was not presented with any other plans or data that contradicted his determination. Ives averred that his interpretation of height under the Bylaw remained constant for the 13 years that he served as building commissioner and zoning enforcement officer. I credit Ives' interpretation and application of the Bylaw. Tr. 1:160-165, 169, 172-177, 185-186, 192-194, 198-199; Exhs. 5, 8, 21.
25. At the second hearing on October 27, 2015, the Board voted to grant the Sevinors' special permit. Exh. 6; Compl. ¶ 14.
26. On November 23, 2015, the Board filed its decision with the town clerk's office (Decision). In that Decision, the Board adopted the findings set forth in § 200-36B of the Bylaw, finding:
That the granting of the application will be consistent with the general purpose and intent of the Bylaw; that the specific site is an appropriate location for the construction; that neither the new construction nor the use of the addition will adversely affect the neighborhood; that there will be no nuisance or serious hazard to vehicles or pedestrians resulting from the construction of the addition; and that adequate and appropriate facilities will be provided for the proper operation of the building.
Exh. 6; Compl. ¶ 15.
27. The Board included in its decision the following conditions:
(1) The project shall be built as shown and in strict conformance with the plans approved by the Board, including the survey plan all of which were date-stamped by the Board on August 25, 2015.
(2) There shall be no further reduction in open space, except pursuant to a Special Permit from the Board.
(3) There shall be no additions to the building or any other structures or buildings placed on the lot except pursuant to a Special Permit from the Board.
(4) The conditions of the Site Plan Special Permit are to be incorporated herein by reference.
(5) This special permit is issued on the condition that there shall be no construction at any time following the vote of the Board of Appeals which either differs from the construction set forth on drawings approved and stamped by the Board of Appeals by that vote, or which is inconsistent with this decision and these conditions, without the applicant obtaining prior written approval from the Board of Appeals for such construction. Additionally, 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 three (3) page decision in its entirety, bearing the certification of the Town Clerk that 20 days have elapsed after the decision has been filed in the office of the Town Clerk and either that no appeal has been filed or the appeal has been filed within such time, has been recorded in the Essex South Registry of Deeds as indexed in the grantor index under the name of the owner of record or is recorded and noted on the owner's certificate of title. The person exercising rights under a duly appealed special permit does so at risk that a court will reverse the permit and that any construction performed under the permit may be ordered undone.
Exh. 6.
28. Derek Bloom (Bloom), a licensed architect, reviewed the Sevinors' special permit application submitted to the Board. Bloom visited the site and observed the existing dwelling and grade as best he could and compared it to the special permit application. He noted that he could not determine existing grade, but developed a series of computer renderings based on data in Jacobs' architectural drawings and the Hayes Plan that were presented to the Board, in addition to using the Overlay Plan showing topographical features of the area. He did this by scanning the drawings and plans into a computer and making a 3D model. The series of renderings depict the elevations of the Sevinor Property to the south, the existing house, the existing foundation wall that is to remain, the additional wall built up on the retaining wall, and the proposed grade modifications. Bloom also created renderings of the proposed dwelling with the overlay of the old dwelling, making a comparison of the massing created by the proposed dwelling. Bloom testified that he was not asked to check the accuracy of the elevations that existed on the site plan. Bloom stated that "not being a surveyor, I don't really have the tools to determine grade." He did not work with any consultants to establish the accuracy of elevation and topography in the plans he relied upon or in his analytical renderings. I do not credit Bloom's renderings. The contour lines on the Overlay Plan only show elevations at the southern border of the Sevinor Property; there are no lines across the Sevinor Property that match up with the contour lines on the northern portion of the property. This means that Bloom's renderings have large areas for which there are no contours, making them unreliable. Tr. 1:215-216; Tr. 2:35-37; Exh. 23.
Discussion
Because the Plaintiffs have a presumption of standing that the defendants did not seek to rebut, the Plaintiffs' standing has been established and the only issue remaining is whether the Board's Decision to grant the special permit to the Sevinors had a rational basis.
An appeal of a zoning board of appeals decision is de novo; that is, in an action under § 17 the "court shall hear all the evidence pertinent to the authority of the board . . . and determine the facts, and, upon the facts as so determined, annul such decision if found to exceed the authority of such board . . . or make such other decree as justice and equity may require." G.L. c. 40A, § 17. Section 17 review of a local board's decision involves a "peculiar' combination of de novo and deferential analyses." Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374 , 381 (2009). The court is obliged to find facts de novo and may not give any weight to those facts found by the local board. G.L. c. 40A, § 17; Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 72 (2003) ("In exercising its power of review, the court must find the facts de novo and give no weight to those the board has found."); Kitras v. Aquinnah Plan Review Comm., 21 LCR 565 , 570 (2013) (noting the court must "review the factual record without deference to the board's findings"). 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 purpose of the zoning law." Vazza Props., Inc. v. City Council of Woburn, 1 Mass. App. Ct. 308 , 312 (1973). The court, however, must give deference to the local board's decision and may only overturn a decision if "based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary." MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 639 (1970), citing Gulf Oil Corp. v. Board of Appeals of Framingham, 355 Mass. 275 , 277 (1969); Britton, 59 Mass. App. Ct. at 72; Kitras, 21 LCR at 570.
In determining whether a decision is "based on legally untenable ground," the court first looks at whether it was decided on 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. Once the court determines the content and meaning of statutes and by-laws, it looks at 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, 59 Mass. App. Ct. at 73. Finally, the court finds the facts and determines whether "any rational board could" come to the same conclusion. Id. at 74. This step is "highly deferential," but deference is not abdication. Id. "As a consequence, the board's discretionary power of denial extends up to those rarely encountered points where no rational view of the facts the court has found supports the board's conclusion that the applicant failed to meet one or more of the relevant criteria found in the governing statute or by-law." Id. at 74-75. If the board's decision is found to be arbitrary and capricious, the court should annul the decision. See Mahoney v. Board of Appeals of Winchester, 344 Mass. 598 , 601-602 (1962).
Section 200-1B of the Bylaw states that its purpose is to regulate the development of land and the height, size, and location of the buildings and structures so as to promote the health, safety, convenience, and general welfare of its citizens. The Bylaw permits any alteration, reconstruction, extension, or change to a lawful preexisting dimensionally nonconforming building with an allowed use without the need of a special permit only if the expansion does not increase the gross floor area by more than 10%, the height by 10%, the size of the lateral dimensions by 10%, and in the Shoreline District, if it does not exceed 500 square feet in gross floor area. Exceeding these limits requires a special permit from the Board. Because the Sevinors desire to alter their dimensionally nonconforming house and exceed the 10% expansion limits, they are required under § 200-30C of the Bylaw to obtain a special permit from the Board. In such cases, the Board is required to consider the criteria set forth in § 200-36B:
(1) That the granting of the application will be consistent with the general purpose and intent of the Bylaw;
(2) The specific site is an appropriate location for the construction;
(3) Neither the new dwelling nor the use of the building will adversely affect the neighborhood;
(4) There will be no nuisance or serious hazard to vehicles or pedestrians resulting from the construction of the building;
(5) Adequate and appropriate facilities will be provided for the proper operation of the building.
Exh. 2, § 200-36B. Because the Board's Decision makes findings with respect to each of the § 200-36B criterion, it is clear that the Board applied the proper standards in this case.
I disagree with the Plaintiffs' argument that the Board's finding "[t]hat the granting of the application will be consistent with the general purpose and intent of the Bylaw" was arbitrary and capricious. Section 200-1B of the Bylaw states that to achieve its intent and purpose the "Bylaw regulates the development and use of land, and the height, size, location, and use of buildings and structures thereon in order to promote the health, safety, convenience, and general welfare of the inhabitants of the Town of Marblehead." Exh. 2, § 200-1B. The Plaintiffs argue that despite this requirement, the Board failed to consider height, size, and location of the proposed dwelling, and did not making appropriate findings as to these issues. They contend that neither the Board nor the building commissioner, Robert Ives, were given a topographical survey of the Sevinor Property and, thus, it was inappropriate for the Board to rely on Ives' determination of low point of grade at 23 feet. They also conclude that Ives incorrectly interpreted the definition of "height of a building" in the Bylaw as not including the basement level. Instead, the Plaintiffs assert that based on the Overlay Plan, the low point of grade on the Sevinor Property on the southern side is 16 or 17 feet at its highest, and that because the old foundation wall to the south and west remains a part of the proposed house, the low point for determining height should really be elevation 14.92 feet (the basement level elevation) or 10.1 feet (the base of the existing foundation wall). Although the Plaintiffs make much of the fact that the Board was not provided a full topographical plan that may have contradicted Ives' determination of low point of grade and building height, nothing in the record establishes that the Board's assessment of the proposed height did not have a substantial basis in fact.
The evidence is, and I find, that the Board underwent a great effort to interpret and apply the height regulation as set forth in the Bylaw. Before the Board were architectural plans, prepared by Jacobs, of the existing and proposed buildings, and the Hayes Plan. The plans showed the low point of grade at elevation 23 feet. Prior to rendering a decision, the Board sought clarification from Ives, who is also the zoning enforcement officer, a position he had held since 2003. Ives sent a letter to the Board in which he explained why an existing basement would not contribute to the height calculation because it would be considered part of the excavation required for a proposed structure. At trial, Ives likewise testified that when a building with a basement floor is razed, he does not consider the basement floor to be a grade level of the property, but rather looks at the existing and proposed grade around the perimeter of the footprint of the building. Ives' interpretation is in line with § 200-7 of the Bylaw's definition of "original grade," which excludes work done subsequent to "site preparation" such as the grading of the site and the removal of earth related to grading.
Based on his opinion and interpretation of the Bylaw as to height, which he testified had been consistent for the past 13 years he served as building commissioner, Ives stated in the letter to the Board that the "lowest original grade for the proposed dwelling at 22 Foster Street is EL=23.0 as indicated on the [Hayes Plan]." Exh. 21. Ives testified that he was familiar with examining plans and elevations to look for the low point of grade. He stated that he relied on the Hayes Plan because the survey was performed and stamped by a licensed land surveyor. Ives received no other data or plans from a land surveyor or engineer that contradicted his finding that the low point of grade for purposes of height calculation was at 23 feet. I credit Ives' analysis and application of the Bylaw. Based on his years of experience working as building commissioner and analyzing plans, it was reasonable for the Board to rely on Ives' interpretation of the Bylaw in deciding whether the proposed dwelling complied with the local height requirements.
The Plaintiffs argue that Ives' and the Board's reliance on the Hayes Plan was improper because in looking at the Overlay Plan, one can see that where elevation 23 is on the north side of the Sevinor Property is approximately where elevation 16 to 17 is at the southern property line. Therefore, they argue, the existing low grade on the southern side of the Sevinor Property cannot be 23 feet. This argument does not withstand scrutiny. At present, the foundation wall for the existing dwelling is located .9 feet from the southern Sevinor Property line. The low point of the existing grade is at 10.1 feet, putting the height of the dwelling at 35.4 feet. The first floor level of the existing house is at elevation 23 feet. When the existing dwelling is razed, it will be pushed back farther from the shoreline and up gradient towards Foster Street. The foundation wall will remain on the western and southern sides of the property, but function as a retaining wall. The new foundation of the proposed dwelling will be located 5 feet inside the boundary line. There is no indication on the plans of the elevation at the southern edge of the new foundation. The Hayes Plan combined with Jacobs' architectural plans show that the point where the new foundation of the dwelling is at its westernmost, closest to the water, is at elevation 23 feet. Measured from this elevation, the height of the proposed dwelling is 30 feet, the maximum allowed under the Bylaw.
It was reasonable for the Board to rely on the Hayes Plan and Jacobs' plans to establish that the proposed structure satisfied the height requirements using the low point of grade at elevation 23 feet, and the Board did not act arbitrarily in doing so. Even if the Board had been provided with the Overlay Plan showing the contour lines on the properties, there are no elevations shown in the southern area of the Sevinor Property. The only contour lines shown on the Overlay Plan are along the southern boundary between the Sevinor and Nutt Properties by the old foundation wall/new retaining wall. The elevations of the retaining wall are not relevant to the building commissioner's consideration of low point of grade where the proposed building will sit.
The Plaintiffs' only contradictory evidence came from architect Derek Bloom. Bloom testified that his computer renderings showed what appeared to be a large discrepancy between the building height and existing grade, and what was being considered the height and the original grade of the landscape. The renderings done by Bloom depicting the elevation of the Sevinor Property to the south and the existing and proposed structures, used the contour lines from the Overlay Plan to show the relative massing of the proposed dwelling. As stated above, because the topography lines on the Overlay Plan are located on the Sevinor/Nutt Property boundary line, but do not cross the Sevinor Property, it was incorrect for Bloom to use them in calculating the height of the proposed dwelling compared to the existing dwelling. Bloom testified that he was not asked to check the accuracy of the elevations and stated that "not being a surveyor, I don't really have the tools to determine grade." He did not work with any consultants to establish the accuracy of elevation and topography in the plans he relied upon or in his analytical renderings. Blooms renderings cannot be credited to support the Plaintiffs' position as to the low point of grade and height of the proposed house. The Board acted rationally in relying on the building commissioner's expertise in determining the lowest point of grade and calculating the height of the proposed dwelling on a complex sloping property. That decision should not be disturbed.
The Plaintiffs also allege in their complaint that the "Board failed to consider the impact of a large multi-story house on a narrow and undersized lot with multiple non-conforming issues and how the mass of the house will impact all of the Plaintiffs." To begin with, the Plaintiffs mischaracterize the proposed dwelling as "large multi-story house," when in fact the proposed residence is only two stories with a basement below grade. Though the Sevinor Property is a narrow lot with many existing nonconformities, the Board heard testimony as to how the proposed construction will either eliminate several nonconformities or reduce them. The proposed dwelling conforms to height limits and to the rear and front yard setbacks. The side yard setback is increased on the southern boundary from .9 feet to 5 feet and on the northern boundary from 5.9 feet to 12.2 feet. The new dwelling also conforms to the open area ratio with a ratio of 1:1.4. In addition, the Board was informed that the Sevinors had received a site plan special permit from the Planning Board, prior to which the Planning Board held a site visit at the property and changes were made to the original plans. The Board explicitly incorporated the Planning Board's site plan special permit into the Decision. In its decision, the Planning Board specifically found that the new dwelling "as originally proposed was altered through the Planning Board process in order to reduce the massing at the shoreline and height to minimize the negative effects on the views from the shoreline and the neighboring properties." Exh. 13. These changes included the removal of the proposed third floor of the building, lowering the height, and setting the building a greater distance back from the shoreline and southern property line. Exh. 13. [Note 1] Where the building meets the low point of grade at elevation 23 feet, only about 5% of the building has a height of 30 feet above the actual ground, with 15% below 27 feet in height as measured from the actual ground, 45% below 25.5 feet, and 35% below 23.5 feet. The new dwelling will be 39 feet from the dwelling on the Nutt Property and 37 feet from the dwelling on the McKernan Property. This information about the size and location of the proposed house was presented to and considered by the Board when they issued the Decision.
Moreover, the Board did not err in deciding that neither the new dwelling itself nor the use of the building will adversely affect the neighborhood. The properties are all located on Marblehead Neck with frontage on Marblehead Harbor. Based on the view of the properties, both at the properties themselves and from across the harbor facing the properties, I find that the size and style of the proposed home is consistent with other houses in the neighborhood. All of the other properties on Foster Street in the vicinity are improved with large single-family dwellings, all much larger than the Sevinors' existing house. The Sevinors' proposed dwelling will be harmonious with the other properties in the surrounding neighborhood. The size and design of the proposed dwelling are modest compared to the other residences in the neighborhood. The Planning Board made a specific finding that the proposed house "is smaller than the abutting properties and therefore its size respects that historical hierarchy and remains subordinate to the larger properties in the area." Exh. 13. Further, alterations like those the Sevinors have proposed are not uncommon in the area. Indeed, the dwelling on the McKernan Property, which has a gross floor area of 13,004 feet, replaced the previous dwelling that had a gross floor area of 5,680 square feet.
No testimony was given as to how the massing of the new dwelling would adversely impact the neighborhood. The computer generated renderings by Bloom were the only evidence presented showing the massing of the proposed dwelling relative to the Nutt Property. This is not enough to show that the Board's findings were irrational. The evidence in the record demonstrates that the proposed house is down grade from the dwelling on the McKernan Property, which is larger and far more intrusive, and uphill from the Nutt Property. The location of the proposed house has no impact on any neighboring properties' westerly views of the harbor.
Additionally, under § 200-36B of the Bylaw, the Board correctly found that no nuisance or hazard to vehicles or pedestrians would result from the construction of the dwelling and that the proposed dwelling would have adequate and appropriate facilities. Nothing was presented to the Board or at trial that conflicts with the Board's findings on these grounds.
Accordingly, the Board's conclusions were rational and supported by the evidence presented at trial. The Board applied the proper standards under § 200-36B of the Bylaw, making findings with respect to each criterion. The Sevinors' proposed house will greatly improve their property and will not adversely affect the Plaintiffs' properties or the surrounding neighborhood. The Board's Decision is not arbitrary and capricious, and is due deference.
Conclusion
For the foregoing reasons, the Board's Decision granting the special permit is AFFIRMED and the Plaintiffs' claims are DISMISSED with prejudice.
Judgment accordingly.
WILLIAM J. NUTT, DEBORAH S. NUTT, KEVIN J. MCKERNAN, REBECCA A. MCKERNAN, STEIN I. SKAANE, and JEAN CRAGIN SKAANE v. CHRISTOPHER CASEY, WILLIAM BARLOW, BRUCE KRASKER, ALAN LIPKIND, and CHAIRMAN JAMES L. RUDOLPH, as they are Members of the TOWN OF MARBLEHEAD ZONING BOARD OF APPEALS, RALPH SEVINOR and MERYL SEVINOR.
