ANCA VAN ASSENDELFT v. WILLIAM MORIARTY, ALAN LIPKIND, DAVID TUBRIDY, WILLIAM BARROW, AND CHRIS CASEY as members of the MARBLEHEAD BOARD OF APPEALS, and DOUGLAS ZURN and KERRY ZURN.

Introduction

This case is a G.L. c. 40A, § 17 appeal of the decision of the Marblehead Board of Appeals (the "Board") granting defendants Douglas and Kerry Zums' application for a special permit to raise the roofline and add dormers to the second story of their legally preexisting, nonconforming single-family home in Marblehead, giving more headroom to the rooms there, and to construct a small two-story addition on the side of the house, whose roofline will be at the same height. The Zurns' proposed project will increase their right side setback, thus reducing their property's sole zoning nonconformity, and the new rooflines will be over eight feet lower than the height allowed by the zoning bylaw.

Plaintiff Anca Van Assendelft, who lives in a neighboring two and one-half story home to the right, uphill, and across a 20-foot right of way from the Zurns, is opposed to this. Despite the abundance of tall trees outside her windows which are far higher than the Zurns' proposed new roof line, and despite that her house sits higher than the Zurns', [Note 1] she believes that the additions will affect her views, diminish the sunlight in her home, reduce her privacy, and thus decrease her home's value.

The parties agree that the sole issue presented in this case is whether the Board acted arbitrarily and capriciously in finding that the Zurns' proposed project will not adversely affect the neighborhood. Ms. Van Assendelft contends that it did and that its decision should be overturned because, in her opinion, the Board failed properly to take into account the impacts of the proposed additions on her property. I disagree. Those impacts will be minor. Because the Zurns' proposed project will greatly improve the Zurns' property, adds no new nonconformity, meets all the criteria necessary for the granting of a special permit, and its impacts on Ms. Van Assendelft's property will be insignificant, the Board acted well within its allowable discretion in granting the special permit application. [Note 2]

The case was tried before me, jury-waived. Based on the testimony and exhibits admitted at trial, and my assessment of the credibility, weight, and appropriate inferences to be drawn from that evidence, I find and rule as set forth below and affirm the Board's decision.

Facts

These are the facts as I find them after trial.

Relevant Provisions of the Marblehead Zoning Bylaw

Under the Marblehead Zoning Bylaw (the Bylaw), any alteration, reconstruction, extension, or change to a dimensionally nonconforming building with an allowed use, such as the Zurns', generally requires a special permit from the Board. [Note 3] See Marblehead Zoning Bylaw (hereinafter Bylaw), § 200-30C. In such cases, "the criteria set forth in § 200-36 B, Standards for special permit for use and dimension, shall apply." [Note 4] Id. Section 200-36B provides:

The Board of Appeals shall consider the following standards:

(1) The general purpose and intent of this Bylaw, and whether

(2) The specific site is an appropriate location for such use or building; and

(3) The use as developed will not adversely affect the neighborhood; and

(4) There will be no nuisance or serious hazard to vehicles or pedestrians; [and]

(5) Adequate and appropriate facilities will be provided for the proper operation of the proposed use.

The Board has the authority to grant a special permit for use and dimension with conditions, and "may impose any conditions deemed necessary to achieve the purpose of [the] Bylaw. . . ." [Note 5] See Bylaw, § 200-36C.

The purpose of the Bylaw is:

[to] regulate[] 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.

Bylaw, § 200-l B. In addition, "[t]he purposes of [the] Bylaw include those set forth in Section 2A of Chapter 808 of the Acts of 1975." [Note 6] Id. One of the purposes set forth in § 2A is "to provide adequate light and air." [Note 7] St. 1975, c. 808, § 2A. The protection of views and vistas is not so enumerated. See id.

To the extent the town Bylaw protects sunlight and views, that protection is reflected in the judgments the Bylaw makes in height and distance between houses. Here, as further discussed below, with the twenty-foot town way between them, plus their setbacks from the way (5.9 feet on the Zurn side, 7.7 feet on Ms. Van Assendelft's), the houses are already farther apart than the Bylaw sets as its guideline, [Note 8] and the Zurns' new roofline will be over eight feet lower than the Bylaw recognizes as appropriate. The Bylaw thus provides no support to Ms. Van Assendelft's arguments.

The Special Permit

In a decision filed with the town clerk on December 28, 2015, the Board granted, with conditions, [Note 9] the Zurns' application for a special permit for use and dimension to raise the roofline on the second story of their preexisting, nonconforming home, thus bringing the headroom in those rooms to current building code, and to construct a small two-story addition on the side of the house with the same roofline. In that decision, the Board found:

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.

The decision also acknowledges that Ms. Van Assendelft opposed the application.

This action is Ms. Van Assendelft's G.L. c. 40A, § 17 appeal of that decision, which she contends was arbitrary and capricious because, she believes, the Board did not properly consider the impacts that the changes to the Zurns' house will have on her property. According to Ms. Van Assendelft, the Board's decision was not rational because those changes will greatly reduce her sunlight, vista, and privacy, as well as the value of her home. I disagree. I find that the Board's decision was rational because, as set forth in greater detail below, the Zurns' proposed changes will have no material impact on Ms. Van Assendelft's property.

The Wyman Road Neighborhood

Both the Zurn residence and Ms. Van Assendelft's are on Wyman Road in Marblehead. Wyman Road extends uphill off of Atlantic Avenue and proceeds downhill to Bubier Road, which continues to Marblehead Harbor. Despite their proximity to the harbor, there are no water views from either party's home due to the incline of the hill and the abundance of trees in the area. The houses in the neighborhood vary in size, with several exceeding 2,500 square feet of living space. A number of the houses on Wyman Road, including the Zurns' and Ms. Van Assendelft's, are preexisting, dimensionally nonconforming structures. Many sit close together on small nonconforming lots. Closer to the water, the houses and lots are larger.

The rears of the Zurn and Van Assendelft properties both abut Seaside Park, which extends from Atlantic Avenue toward the harbor, parallel to Wyman Road. The park has a number of public recreational facilities, including a baseball field and grandstand, batting cages, and tennis courts. A town-owned 20-foot-wide paved access way, lined with tall trees on both sides, [Note 10] connects the park to Wyman Road and runs between the parties' properties, with the Zurns to the left (northwest) and Ms. Van Assendelft to the right (southeast). The way serves as a back entrance to the park, and is used by town maintenance workers and landscapers for vehicular access, by athletic teams transporting their gear to the fields, and by the public as a pedestrian, roller skate, and bicycle path.

The Zurns' Property

The town's way abuts the southeast boundary of the Zurns' property at 16 Wyman Road, which is located in Marblehead's Single Residence zoning district ("SR District"). A town drainage easement running from the park to Wyman Road bisects the Zurns' property, effectively limiting, if not precluding, improvements on the center and left side of the lot. Their yard thus comprises more than half of their property, extending over most of their land to the northwest of the easement and over part of the other side. Their house is situated farther to the southeast near the town's way, with a preexisting, nonconforming right side setback that ranges from 5.7 feet to 13.1 feet from the property's southeast boundary. [Note 11] With that sole exception, the Zurns' home and property conforms to all of the SR District's dimensional and use requirements. [Note 12]

At present, the Zurns' house is an approximately 1,400-square-foot Cape cottage-style dwelling with an attached one-story breezeway and garage that has been converted to living space. The main part of the house currently has a second floor consisting of two small bedrooms with low ceilings and a steep, narrow stairwell that do not satisfy the current building code's dimensional standards. The house is oriented sideways on the lot such that its front faces the yard, and the back faces the town's way and Ms. Van Assendelft's house on the other side.

The Zurns desire to renovate and expand their home, like many of their neighbors have done in the past, by raising the roof on the second story to the main part of the house (bringing its headroom into compliance with the current building code), and adding a small two-story addition at the side of the house with the same roofline. Their proposed design preserves the cottage style of the house, and their proposed expansion to approximately 2,672 square feet of living space is consistent with the size and scale of other homes in the neighborhood. They plan to remove the existing one-story breezeway and converted garage and replace that part of the house with the new two-story structure that will be located further back from the town's way, thus reducing the existing side setback nonconformity. The new structure will be 11.7 feet from the way, and the proposed attached deck will be 5.9 feet from the way. [Note 13] The main part of the house will remain in place and maintain its existing, grandfathered 13.1-foot right side setback.

The Zurns' proposed expansion conforms to all other SR district use and dimensional requirements. [Note 14] The existing unfinished basement will be excavated and finished with a higher ceiling. The second floor ceiling height on the existing structure will be slightly increased and its stairwell will be renovated, thus eliminating the existing building code nonconformities. With those alterations, the height of the main part of the house will increase from 21 feet to 26.5 feet, but will still be well below the SR District's maximum building height of 35 feet. The new addition replacing the existing approximately 14.7-foot-high breezeway and garage will also be 26.5 feet high and thus have a conforming height as well. Dormers will be added to accommodate some of the additional height. With a proposed two-foot addition to the park side of the house, the rear setback will also remain conforming at 21.5 feet.

The main living area will continue to be oriented towards the front of the house facing the yard. On the back side of the house, the number of windows will increase from five to fifteen, including those on the doors. The additional rear windows will not have a marked impact on anyone's privacy, for they will be obscured by the trees lining the way and will be located in more remote areas of the house such as stairwells, bathrooms, the kitchen, and the attic. The Zurns have no plans to remove any of the trees on their property or make any changes to their yard.

Ms. Van Assendelft's Property

Uphill from and to the southeast of the Zurns, i.e., to the right of the Zurns as seen from the street, Ms. Van Assendelft's property at 22 Wyman Road abuts the other side of the town's 20-foot-wide way. In the past, Ms. Van Assendelft's house consisted of four rooms and had one story. A prior owner of her property renovated the house and expanded it to two and one-half stories. That expansion project required a special permit because the property, like the Zurns', has a nonconforming side setback, which ranges from approximately 7.7 feet to 8 feet to the town's way. [Note 15] Ms. Van Assendelft's house now has ten rooms and a walkout basement. Her house sits on higher ground than the Zurns' and is 33 feet, 4 inches high from that higher ground level. It thus exceeds the height of the Zurns' house, presently and as proposed.

Ms. Van Assendelft -a consultant -works from home when she is not traveling on assignments and has a home office in the southwest comer of her second floor on the side of her house closest to the Zurns. She located her office there because, with two windows facing Wyman Road and two more facing the Zurns, it has the longest sun exposure of all of the rooms in her house. Throughout the day, the amount of sunlight in her home varies. The light is dim in the morning, but it increases in the afternoon before sunset. Ms. Van Assendelft testified that she is inspired by the sunlight and sunsets that she observes from her office, and believes that they have a positive influence on her work. She also says she is motivated by the sense of spaciousness she experiences when she looks out her office windows over the rooftops of the neighboring buildings into the distance beyond, which she characterizes as a "vista."

The sunlight and views outside those windows, however, are significantly obscured by the mature, leafy trees lining the town's way. [Note 16] During the late afternoon in the spring and summer, foliage casts shadows on the house and blocks her office windows from the direct sunlight. The little direct sunlight that reaches that side of the house at that time primarily hits the basement and is dappled because of the trees. The foliage decreases in the autumn and winter as some of the leaves fall, but the light and views remain partially obscured by the tree trunks and branches. A number of dense conifers along the side of her house facing the Zurns' also block the sunlight and views throughout the year. Despite her claim of the value she places on sunlight and the views from her windows, Ms. Van Assendelft does not trim the height of her own trees, and she has never asked the town to trim the trees along the way.

Any impact that the Zurns' proposed expansion might have on Ms. Van Assendelft's property will be minimal. According to Ms. Van Assendelft's architect, the higher structure will obscure the sunlight on her property after four or five in the afternoon during the spring and summer, but will not affect the sunlight on her property during the remainder of the year. He also testified that the higher roofline on the Zurn house will block some of Ms. Van Assendelft's view down Wyman Road, but she will still have a nearly full view of the sky. Moreover, as previously noted, the trees and shrubs in the area already obscure her sunlight and views.

Further relevant facts are set forth in the Analysis section below.

Analysis

Ms. Van Assendelft contends that the Board's decision granting the Zurns' application for a special permit was arbitrary and capricious because, in her view, it does not address the reductions in her vista, sunlight, privacy, and property value that she believes the proposed additions will cause. I disagree. Because the proposed additions will improve the Zurns' property, meet all the criteria for the granting of a special permit, and will have no material adverse effects on Ms. Van Assendelft's property, I find that a rational basis exists for the Board's decision.

The Standard of Review

In this G. L. c. 40A, § 17 appeal, as in all such proceedings, the reviewing court makes de novo factual findings based solely on the evidence admitted in court, and then, based on those facts, determines the legal validity of the municipal body's decision, with no evidentiary weight given to any findings by the Board. Shirley Wayside Ltd. P'ship v. Bd. of Appeals of Shirley, 461 Mass. 469 , 474-475 (2012); Wendy's Old Fashioned Hamburgers of N. Y., Inc. v. Bd. of Appeal of Billerica, 454 Mass. 374 , 381-382 (2009); Roberts v. Sw. Bell Mobile Sys., Inc., 429 Mass. 478 , 485-486 (1999).

The Board's decision "'cannot be disturbed unless it is based on a legally untenable ground' or is based on an 'unreasonable, whimsical, capricious or arbitrary' exercise of its judgment in applying land use regulation to the facts as found by the judge." Wendy's Old Fashioned Hamburgers of N.Y., Inc., 454 Mass. at 381-382 (quoting Roberts, 429 Mass. at 487). In determining whether the Board's decision was "based on a legally untenable ground," the court must determine whether it was decided "on a standard, criterion, or consideration not permitted by the applicable statutes or by-laws." 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. See id. at 74.

The Board Validly Granted the Zurns' Special Permit Application

The Board's decision granting the Zurns' special permit application was based on legally tenable grounds. Because the Zurns desire to alter their dimensionally nonconforming house, they are required under the Bylaw to obtain a special permit for use and dimension from the Board for their project. See Bylaw, § 200-30C. In reviewing applications for such special permits, such as the Zurns', the Board is required to consider the criteria set forth in § 200-36B. See id. Because the Board's decision at issue makes a finding with respect to each of the § 200-36B criterion, it is clear that the Board applied the proper standards in this case. See Britton, 59 Mass. App. Ct. at 73.

I disagree with Ms. Van Assendelft's argument that the Board's finding "that neither the new construction nor the use of the addition will adversely affect the neighborhood" -one of the § 200-36B criterion -was arbitrary and capricious. [Note 17] That conclusion is rational, for the Zurns' proposed additions will greatly improve their property and have negligible impacts on Ms. Van Assendelft's property. See id. at 74.

If the project goes forward, the Zurns' property will conform to all SR district use and dimensional requirements, with the sole exception of the existing right side setback nonconformity. Because that side set back will be increased, that sole existing zoning nonconformity will actually be reduced. [Note 18] The project will also eliminate the existing building code nonconformities, and thus make the Zurns' home safer. The Zurns will have more space for their family, and the overall condition of their house will improve. Both the size and style of the home will be consistent with other houses in the neighborhood. Additions like those that the Zurns' have proposed are not uncommon in the area. Indeed, Ms. Van Assendelft's own house and that of her next door neighbors have been similarly expanded.

The Zurns' proposed additions will have a minor impact on Ms. Van Assendelft's property. Her concerns about the project primarily arise from the proposed increase to the height of the Zurns' house. The proposed height of 26.5 feet, however, is well (over eight feet) below the SR district's 35-foot maximum building height. In comparison, Ms. Van Assendelft's house is far more intrusive: it is uphill from the Zurns', has an additional half story, and is nearly seven feet higher. Ms. Van Assendelft's objection to the Zurns' increased height is especially tenuous given that, according to her architect, the Zurns' house would have a worse impact on Ms. Van Assendelft's if it was made fully conforming with the maximum allowed height and a conforming right side setback.

Ms. Van Assendelft contends that the Zurns' additions will result in a less expansive vista from her property. Under the Bylaw, however, the impact on the neighboring properties' views is not a standard the Board must consider when addressing applications for special permits for use and dimension, such as the Zurns'. See Bylaw, § 200-36B (listing standards for special permit for use and dimension). When making such an evaluation, the Board is required to consider the Bylaw's "general purpose and intent," but the Bylaw does not enumerate or incorporate the protection of views and vistas as one of its purposes. [Note 19] See Bylaw, § 200- 1B; St. 1975, c. 808, § 2A. While the Board is required to consider whether "[t]he use as developed will not adversely affect the neighborhood," Bylaw, § 200-36B, the minimal impact that the Zurns' proposed additions will have on Ms. Van Assendelft's views will not have such an adverse impact. Her views are already obscured by the mature, leafy trees outside of her windows, and the proposed roofline on the Zurns' house will not materially reduce her presently limited view. Her house will still be higher than the Zurns', and she will still have a nearly complete view of the sky.

I am also not persuaded by Ms. Van Assendelft's argument that the Zurns' proposed additions will decrease the sunlight in her home. One of the Bylaw's objectives is "to provide adequate light and air." St. 1975, c. 808, § 2A (emphasis added). See Bylaw, § 200-lB. If the proposed additions are built, Ms. Van Assendelft will not have inadequate light, nor will the slight reduction in light that she might experience adversely affect her property. [Note 20] Any reduction in sunlight will be minimal, and affect Ms. Van Assendelft's property for only a short period of time in the late afternoon during the spring and summer. During that time, Ms. Van Assendelft already receives very little direct sunlight because the trees beside the way shadow her house. The Zurns' proposed additions might shade the area a little more, but not materially. Furthermore, if Zurns' house was fully conforming at the maximum allowed height, it would have a worse impact on the light at Ms. Van Assendelft's property.

The proposed additions will also have a negligible impact on Ms. Van Assendelft's privacy. Given that town workers and the public regularly use the way directly abutting her property, her privacy is already limited. She nonetheless maintains that her privacy will be further reduced by the additional windows on side of the Zurns' home facing her property. Those windows, however, will be located in more remote parts of the Zurns' house and, like Ms. Van Assendelft's windows, will be visually buffered by the trees and foliage in the area, which the Zurns have no intention to remove.

Finally, Ms. Van Assendelft's contention that the proposed additions will reduce the value of her property lacks an adequate evidentiary foundation. For that reason, explained more fully by the Court during the course of trial, neither her real estate appraiser nor the Zurns' real estate agent witnesses could competently opine on that issue.

Conclusion

For the foregoing reasons, the Board's decision granting the special permit is AFFIRMED and Ms Van Assendelft's claims are DISMISSED, with prejudice.

Judgment shall enter accordingly.

SO ORDERED.

exhibit 1

exhibit 2