MISC 16-000349

May 10, 2018

Essex, ss.



In June 1986, the Marblehead Zoning Board of Appeals (the "ZBA") granted Christopher and Nancy Hawthorne a special permit under § 200-30C of Marblehead's Zoning Bylaw. The permit allowed the Hawthornes to expand the second story of their single-family residence at 18 Gregory Street in Marblehead. The parties to this lawsuit call that second story, with good reason, an "attic."

The owner of a home across from 18 Gregory Street, Michael Swartz, appealed the Hawthornes' permit to this Court under G.L. c. 40A, § 17. Swartz believes that expanding the attic will ruin his waterfront views. The very day Swartz filed his appeal, the Hawthornes sold 18 Gregory Street to Christopher Church and Jennifer Gelfand-Church. The record doesn't disclose whether the Churches knew what they were getting into, but be that as it may.

Mr. Swartz claims that the ZBA shouldn't have granted a special permit for the Hawthorne/Church project because it doesn't meet the Bylaw's criteria for the issuance of such permits. Swartz also claims that the ZBA's written permit decision lacks sufficient findings. The Churches respond that Swartz lacks standing under c. 40A, § 17 to appeal the permit. They contend that Marblehead's Zoning Bylaw doesn't protect private parties' views. They also assert that the reduction in Swartz's view is too minor to give him standing under § 17, even if the Bylaw somehow protected some views.

The parties appeared before the Court for trial on January 11, 2018. As part of the trial, the Court took a view of 18 Gregory Street, inspected the views from inside Mr. Swartz's home at 30 Waldron Street, and walked around parts of the surrounding neighborhood. The Court heard closing arguments from counsel on February 6, 2018. Based on the parties' admissions and agreed facts, the evidence admitted at trial, the arguments of counsel, and what the Court observed during its view, the Court finds the following facts:

1. 18 Gregory Street is perched on a bluff that runs along the east side of Gregory Street in Marblehead. Gregory Street follows the contour of the top of the bluff. The bottom of the bluff at 18 Gregory ends in Marblehead Harbor.

2. There is a single-family residence at 18 Gregory. It was built in the 1950s, before the Town of Marblehead created what its Zoning Bylaw calls the Shoreline Central Residence District (or "SC-R District"). 18 Gregory lies within that district. The district's regulations allow residential uses of lots within the district.

3. The Bylaw requires lots in the SC-R District to have a minimum area of 7,500 square feet. 18 Gregory's lot area is 5,600 square feet. The Bylaw requires residences in the district to have a minimum side-line setback of nine feet. The existing residence at 18 Gregory is only 3.3 feet away from the property's southerly side line. The Bylaw requires properties in the district to have a minimum "open area" ratio of 1:1. The ratio at 18 Gregory currently is 1:0.97.

4. The Bylaw requires structures in the SC-R District to be no more than 30 feet tall. Section 200-7 of the Bylaw provides that 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 of the finished grade of the ground adjoining the building, whichever makes the building height greater. Height limitations shall not apply to chimneys [or] receiving TV antennas. . . .

The existing residence at 18 Gregory has three floors. The "basement" floor is at the base of the Gregory Street bluff, and is open on its east side. The "first" floor is at the Gregory Street elevation and is open on all four sides. The "attic" sits atop the first floor. Thus, from Gregory Street, the residence at 18 Gregory appears to be two-stories high (first floor plus attic), while from Marblehead Harbor, the residence appears to be three-stories high (basement, plus first floor, plus attic).

5. Using the formula in § 200-7 of the Bylaw, the "height" of the existing dwelling at 18 Gregory is 37.2 feet, as measured from the elevation of the open basement (approximate elevation 26.3') to the ridge of the attic (approximate elevation 53.6'). The average elevation for the existing "curb" at 18 Gregory is 34.2', which means that from the front (Gregory Street) side of the property, the existing residence is nineteen feet, eight inches high, excluding the property's chimney.

6. Running along Marblehead Harbor, Gregory Street is considered a "tony" street. Many of the dwellings – including Mr. Swartz's residence at 30 Waldron Street, on the west side of Gregory Street – date from the eighteenth and nineteenth centuries. Many of the dwellings, Swartz's included, have undergone extensive remodeling. Most of the dwellings also front Gregory Street (or, in Swartz's case, have an impressive Gregory Street elevation).

7. None of those things mentioned in ¶ 6 can be said about the existing dwelling at 18 Gregory. 18 Gregory has no entrance that faces the street. 18 Gregory's entrance is on the north side of the building, facing perpendicular to Gregory Street. The entrance also is at the eastern end of the house, the end farthest from Gregory Street. Owing to its unusual orientation, what one sees of 18 Gregory from Gregory Street is the side (and not the front) of an unremarkable '50s-era structure. But for its surrounding neighborhood, its landscaping and what one can see that 18 Gregory is even a house: all that faces Gregory Street is a plain rectangle with three plain windows, topped by an uninteresting triangular roof.

8. Another peculiar feature of 18 Gregory is that it is shorter than its neighbors along the east side of Gregory Street. The peak elevation of the residence at 16 Gregory Street is 72.4 feet, or 18.8 feet higher than the existing peak elevation of 18 Gregory. The peak elevation of the residence at 20 Gregory Street is 59.8 feet, or 6.2 feet higher than the existing peak elevation of 18 Gregory. A residence at 24 Gregory Street currently is 4.7 feet higher (measured from lowest grade elevation to peak) than the existing residence at 18 Gregory; in June 2016, the ZBA granted the owners of 24 Gregory a special permit allowing them to add 0.7 feet to their residence. Renovations at 24 Gregory were underway at the time of trial.

9. The existing residence at 18 Gregory is substantially shorter than Mr. Swartz's residence. The peak elevation of 30 Waldron exceeds the peak elevation of 18 Gregory by at least eight feet. 30 Waldron seems even higher than 18 Gregory because 30 Waldron is perched on a hill, upslope from Gregory Street. Because of its distance (65 feet) from 18 Gregory, its height, its higher elevation, and the 18 Gregory's short height (relative to Gregory Street), 30 Waldron enjoys several views of Marblehead Harbor over and around 18 Gregory. 30 Waldron would not enjoy as many views if structures such as those at 16, 20 or 24 Gregory Street happened to be in 18 Gregory's location.

10. The attic at 18 Gregory contains two bedrooms, one full bathroom, and storage space. The maximum ceiling height within the attic is 77 inches (6'5"), but as 18 Gregory has a sloping roofline, the height in many parts of the attic is substantially less than 6'5". The Ninth Edition of the State Residential Building Code (the "SRBC") requires occupied spaces to be 7' high.

11. One reaches the attic at 18 Gregory by a stairway from its first floor. The rise/run of that stairway is 9"/9". The SRBC allows a maximum rise of 8.25" with a minimum run of 10", for stairways in occupied buildings.

12. Neither party offered evidence concerning whether 18 Gregory's attic and first- floor stairway complied with the applicable building code at the time each was built. The SRBC requires property owners to meet the code's current requirements if they perform substantial renovations.

13. In November 2015, the Hawthornes applied to the ZBA for a special permit approving an addition to 18 Gregory's attic. They proposed to build the addition in conjunction with other work within 18 Gregory that didn't need a special permit.

14. Municipalities are free to regulate the reconstruction, extension, alteration or changes to pre-existing, nonconforming single-family structures either through so-called "Section 6 findings" or via special permits. See Wojcik v. Lovett, 24 LCR 343 , 346-47 (2016). The Town of Marblehead has chosen the latter route. Section 200-30C of the Bylaw provides:

Special permit for change of a nonconforming building. A building housing an allowed use which does not currently conform to the dimensional requirements of this Bylaw may not be altered, reconstructed, extended or changed unless a special permit for use and dimension for such change shall first be obtained from the [ZBA]. As referenced in § 200-35D, Board decision, the criteria in § 200- 36B, Standards for special permit for use and dimension, shall apply.

Section 200-30D of the Bylaw lists exceptions to § 200-30C, but the parties agree that the exceptions aren't relevant here. Section 200-7 of the Bylaw defines "nonconforming building" as "[a] building . . . that does not conform to any dimensional regulation prescribed by this Bylaw for the district in which it is located . . . ; provided that such building . . . was in existence and lawful at the time the dimensional regulation . . . became effective."

15. Section 200-36B of the Bylaw provides:

Standards for special permit for use and dimension. The [ZBA] shall consider the following standards:

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

(2) The specific site is 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;

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

16. The ZBA held its first hearing on the Hawthornes' application in January 2016. After that hearing, the Hawthornes filed a revised application, one that reoriented their proposed attic addition 90 degrees, so as to make the addition less noticeable from Gregory Street. The revised project has several other aims. It aims to change the character of the front of 18 Gregory, so that it at least refers to historic styles in the neighborhood. The revised project includes a simple gambrel facing the street, and a porch that marks a new Gregory Street entrance. It will relocate 18 Gregory's main first-floor entrance, so that it opens (like other neighborhood houses) onto Gregory Street. The project also updates the interior of the house. It will remodel 18 Gregory's kitchen and turn the attic into a code-compliant second floor, with a code-compliant stairway from the first floor. The project will add 420 square feet of livable space to the second floor. The proposed porch over the Gregory Street entrance, a porch that will extend from the second floor of 18 Gregory, nominally adds 63 square feet to the second floor.

17. Mr. Swartz agrees that the revised project meets the requirements of §§ 200- 36B(2), (4) and (5) of the Bylaw. He disputes whether the project is consistent with the "general purpose and intent of [the] Bylaw" (§ 200-36B(1)) and whether "[t]he use as developed will not adversely affect the neighborhood" (§ 200-36B(3)).

18. Section 200-1B of the Bylaw provides: "Purpose. This 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. The purposes of this Bylaw include those set forth in Section 2A of Chapter 808 of the Acts of 1975."

19. The revised project will increase the height of 18 Gregory by 3.8 feet. The proposed peak elevation of 18 Gregory will be at elevation 57.4'. The height of the renovated dwelling at 18 Gregory, as calculated using the formula described in ¶ 4 above, is 41 feet, thereby increasing 18 Gregory's building-height nonconformity. The proposed open area ratio at 18 Gregory will be 1: 0.85, thereby increasing 18 Gregory's open-area nonconformity. The revised project will not increase 18 Gregory's side-line nonconformity. The revised project complies in all other respects with the Bylaw, including its other setback requirements.

20. The Marblehead Old and Historic Districts Commission approved the revised plan, after public hearings.

21. The proposed peak elevation of 18 Gregory will be fifteen feet lower than the peak elevation of 16 Gregory, and 2.4 feet lower than the peak elevation of 20 Gregory. The proposed building height of 18 Gregory will be 0.9 feet lower than the existing building height of 24 Gregory, and 1.6 feet lower than 24 Gregory's building height once renovations there are complete.

22. The revised project will not change the "use" of 18 Gregory. It is currently used as a single-family residence. The requirements of the SC-R District allow that use, as of right. After completion of the project, 18 Gregory still will be a single-family residence.

23. The June 8, 2016 decision of the ZBA, granting a special permit to the revised project, states in part:

After discussion amongst the Board Members, where the Board indicated that given the size of the lot and the abutting houses the Applicants have accommodated the concerns voiced at the January meeting as best as possible, and that the changes would be beneficial to the property and the neighborhood, the Board made the following findings and decision:

Findings of the Board

By voting positively on the Application and granting the requested Special Permit, the Board made the following determinations and findings:

. . .

3. That . . . the criteria set forth in ARTICLE IX, § 200-36B of the . . . By- Laws, consisting of the following, have been satisfied:

a. The general purposes and intent of the By-Law are met; and

b. The specific site is an appropriate location for such use or building; and

c. The use as developed will not adversely affect the neighborhood; and

d. There will be no nuisance or serious hazard to vehicles or pedestrians; and

e. Adequate and appropriate facilities will be provided for the proper operation of the proposed use.

24. Following the portion of the ZBA's decision labelled "Findings of the Board," there appears in the decision a section labelled "Decision." The Decision begins: "Whereupon the Board voted first to grant the Special Permit allowing the conversion of the existing dwelling from a two-family dwelling to a single-family dwelling." This is the decision's only mention of 18 Gregory being a two-family dwelling. The Hawthornes' application for a special permit does not request a change in use, and it doesn't assert that the building is a two-family structure. Instead, their application materials state that 18 Gregory is a single-family dwelling. At trial, none of the parties provided evidence, or even argued, that 18 Gregory is a two-family dwelling. The Court thus regards the Decision's reference to conversion of the structure to a single-family dwelling as a scrivener's error.

25. The ZBA's Decision then states:

The Board then voted to grant a Special Permit for the proposed construction with the following conditions (emphasis in original):

* 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 the drawings approved and stamped by the Board of Appeals by that vote, or which is inconsistent with this Decision and these conditions, without the Petitioner obtaining prior written approval from the Board of Appeals for such construction.

. . .

* This Special Permit is issued on the condition that no Certificate of Occupancy shall be issued by the office of the Building Inspector if any of the construction either differs from the construction set forth in the drawings approved and stamped by the Board of Appeals by that vote [sic], or which is inconsistent with this Decision and these conditions, without the Petitioner obtaining prior written approval from the Board of Appeals for such construction.

. . .

* There shall be no future alterations, changes or additions whatsoever, including additions of less than 10%, to any structure, or any new structure constructed or placed on the property, except pursuant to a Special Permit granted by the Board of Appeals.

26. The revised project will cause de minimis reductions of 30 Waldron's waterfront views. The Court reaches this conclusion based upon (a) the distance between 30 Waldron and the revised project; (b) 30 Waldron's higher elevation; (c) the Court's view of 18 Gregory from the eastern side of all three floors of 30 Waldron; and (d) a rendering prepared by the project's architect, using a photograph taken from the second-floor deck at 30 Waldron. That rendering shows that the revised project will not impinge on a "view corridor" visible from that deck between 18 Gregory and 20 Gregory. (That corridor is not usual relative to the neighborhood as a whole: south of 24 Gregory Street, homes along the east side of Gregory Street typically are quite close together.) Construction of the revised project will slightly reduce 30 Waldron's view over 18 Gregory from the same second-floor deck. The project will not reduce the waterfront views from the third floor of 30 Waldron. As for views from the first floor of 30 Waldron, 18 Gregory blocks some of those views already. The project may impinge further on those views, but Mr. Swartz did not establish the extent of any such reduction, nor did he prove which vantages would suffer.

27. Because of the distance between the revised project and 30 Waldron, the revised project will have no impact upon the amount of sunlight that reaches 30 Waldron, nor will it affect air circulation at or around 30 Waldron. Mr. Swartz's deposition testimony, excerpts of which were admitted at trial, confirms these findings.


The facts as found after trial allow the Court to resolve the parties' three issues, but since the Court holds that Mr. Swartz lacks standing, the Court will not reach the merits of the ZBA's grant of a special permit or determine whether the ZBA's decision contains sufficient findings.

Chapter 40A, § 17 grants private individuals the right to challenge zoning-board decisions only if those individuals are "persons aggrieved" by the decision, meaning one who "suffers some infringement of his legal rights." Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996). As an abutter to 18 Gregory, Mr. Swartz enjoys a rebuttable presumption that he has standing to challenge any ZBA decision concerning 18 Gregory. See id. There are two ways, however, that an abutter's opponent may overcome the presumption. One is to show that the abutter's interests are not among those that the Zoning Act or the local zoning bylaw protects. See Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115 , 120 (2011). This first type of challenge usually doesn't involve evidentiary issues, as the central question is that of the "fit" between the abutter's claims of injury and the interests that state or local zoning laws protect.

The second way one may overcome an abutter's presumed standing under c. 40A, § 17 is to challenge the abutter's claims of injury. That effort starts with the abutter's opponent presenting admissible evidence that challenges the abutter's specific claims of infringement of his or her legal rights. See Watros v. Greater Lynn Mental Health and Retardation Association, Inc., 421 Mass. 106 , 111 (1995). Once the abutter's opponent presents such evidence, the burden shifts to the abutter "to demonstrate that she was a person aggrieved." Hoffman v. Board of Zoning Appeal of Cambridge, 74 Mass. App. Ct. 804 , 808 (2009). Hoffman describes the required demonstration as follows:

"[A] plaintiff is not required to prove by a preponderance of the evidence that his or her claims of particularized or special injury are true. 'Rather, the plaintiff must put forth credible evidence to substantiate his allegations. It is in this context that standing is essentially a question of fact for the trial judge.'" The idea of putting forth "credible evidence" of a particularized injury is equivalent to establishing a "plausible claim" of that injury. . . . The threshold question of whether [the plaintiff] has standing is different than the ultimate merit of [the plaintiff's] allegations. Thus, the relevant question [is] whether [the plaintiff has] put forth credible evidence of a particularized injury to support her claimed status as a person aggrieved.

Id. at 809, quoting Butler v. City of Waltham, 63 Mass. App. Ct. 435 , 441 & n.13 (2005). The demonstration must include what Butler calls "quantitative" and "qualitative" proof of injury: "Quantitatively, the evidence must provide specific factual support for each of the claims of particularized injury the plaintiff has made. Qualitatively, the evidence must be of a type on which a reasonable person could rely to conclude that the claimed injury likely will flow from the board's action." Butler, 63 Mass. App. Ct. at 441.

The Churches challenge Mr. Swartz's standing using both methods. They first claim that the Marblehead Zoning Bylaw doesn't protect his interest in preserving his views of Marblehead Harbor. The Court agrees that the provisions of the Bylaw that govern the Churches' permit, §§ 200-30C and 200-36B, don't list as one of their purposes the protection of views and vistas, be they public or private. See Van Assendelft v. Moriarty, 25 LCR 59 , 60 (2017) (Long, J.) (construing § 200-36B). But there are more subtle and indirect ways that those provisions could protect views. Section 200-36B(1) requires the ZBA to consider, for example, whether a project meets "[t]he general purpose and intent of [the] Bylaw." Those purposes include the "promot[ion of] the health, safety, convenience and general welfare of the inhabitants of the Town of Marblehead. . . ." One can conceive of situations where certain views could be iconic or otherwise important to the "general welfare" of a town's inhabitants. The Bylaw's purposes also include those "set forth in Section 2A of Chapter 808 of the Acts of 1975." Bylaw at § 200-1B. As Judge Long noted in Van Assendelft, one of the purposes listed in c. 808, § 2A is the provision of "adequate light and air. . . ." Van Assendelft, 25 LCR at 60. One can think of cases in which impinging on a cherished view also could result in a loss of "adequate" light and air. Finally, § 200-36B(3) requires the ZBA to consider whether "[t]he use as developed will not adversely affect the neighborhood." Again, one can imagine instances in which loss of certain views could adversely affect a neighborhood.

The Churches thus paint with too broad a brush in suggesting that no Marblehead resident may claim standing under c. 40A, § 17 on account of a project's impact on views. Indeed, in Van Assendelft, the court didn't rule on whether Marblehead resident Anca Van Assendelft could assert standing on account of the loss of her view; instead the court denied her permit appeal on the merits. This Court thus holds that loss of views could implicate interests that the Bylaw protects.

So we turn to the Churches' second attack on Mr. Swartz's standing. At trial they rebutted Swartz's specific claims of injury. They showed (and the Court's visual observations confirm) that the revised project's "view impacts" would not degrade "the health, safety, convenience and general welfare of the inhabitants of the Town of Marblehead," and would not adversely affect the neighborhood. The Churches also showed that the project would not deprive 30 Waldron of adequate light and air.

Accordingly, Mr. Swartz bore the burden at trial of providing "quantitative" and "qualitative" proof of injuries within the Bylaw's scope. See Butler, 63 Mass. App. Ct. at 441. Swartz admitted that revised project won't cause a loss of light or air at 30 Waldron. He also provided no evidence of the project's adverse effects upon the neighborhood's views: to the contrary, all of his evidence bore on the project's effects on his views of Marblehead Harbor.

That evidence failed to establish not only an adverse effect upon the neighborhood, but also any adverse effect upon the "health, safety, convenience and general welfare of the inhabitants of the Town of Marblehead," other than (possibly) the welfare of Swartz himself.

Is an adverse effect upon the "general welfare" of a single Marblehead "inhabitant," resulting from his loss of a view, enough to trigger standing? Perhaps, but it's not necessary to answer that question in this case. That's because Swartz's loss of views is like that found after trial in Kenner: de minimis. The Churches propose to raise the peak elevation of 18 Gregory by only 3.8 feet. That number might be significant if 30 Waldron and 18 Gregory had between them only the minimum setback required in the SC-R District (nine plus nine, or eighteen, feet), and were at the same elevation. But that's not the case. Instead, owing to 30 Waldron's significantly higher ground elevation and its 65-foot separation from 18 Gregory, the 3.8-foot increase in 18 Gregory's height won't alter 30 Waldron's views all that much.

In this respect, this case is quite similar to Kenner. There the plaintiffs' house was across the street; the challenged addition was only seven feet tall; the addition complied with setback requirements; and the court concluded from its own observations that the plaintiffs would continue to enjoy ocean views. See Kenner, 459 Mass. at 116, 123. Kenner holds that in order to establish standing under c. 40A, § 17 solely on the basis of reduced views, more is needed. The reduction must "be substantial enough to constitute actual aggrievement such that there can be no question that the plaintiff should be afforded the opportunity to seek a remedy. To conclude otherwise would choke the courts with litigation over myriad zoning board decisions where individuals have not been, objectively speaking, truly and measurably harmed." Id. at 122. Mr. Swartz has failed to provide sufficient proof of actual aggrievement. He thus lacks standing under § 17 to challenge the Churches' special permit.

Judgment to enter accordingly.