EVAN WILE v. RICHARD DINKIN, JOANNE DUNN, ELLEN FLANNERY, ELIZABETH MCGLYNN, ROBERT RINK, BARRY SULLIVAN, PETER THOMAS, and JOHN THOMPSON as members of the CITY OF BEVERLY PLANNING BOARD and JOHN RATTIGAN, JR. as TRUSTEE of the EDGEWATER HOUSE TRUST, Intervenor; EVAN WILE as TRUSTEE of the WEST STREET REALTY TRUST and CHARLES BENEVENTO v. SCOTT HOUSEMAN, MARGARET O'BRIEN, SCOTT FERGUSON, JANE BRUSCA, JOEL MARGOLIS and PATRICIA MURPHY as members of the City of Beverly Zoning Board of Appeal and CAROL HORVITZ as TRUSTEE of the EDGEWATER HOUSE TRUST; EVAN WILE as TRUSTEE of the WEST STREET REALTY TRUST v. DAY ANN KELLEY, MARGARET O'BRIEN, SCOTT FERGUSON, JANE BRUSCA, JOEL MARGOLIS, PAMELA GOUGIAN and SALLY KOEN as members of the CITY OF BEVERLY ZONING BOARD OF APPEAL, JOHN CONNOLLY, JR., [Note 1] CAROL HORVITZ as TRUSTEE of the EDGEWATER HOUSE TRUST, and JEFFREY HORVITZ; EVAN WILE as TRUSTEE of the WEST STREET REALTY TRUST v. DAY ANN KELLEY, MARGARET O'BRIEN, SCOTT FERGUSON, JANE BRUSCA, JOEL MARGOLIS, PAMELA GOUGIAN and SALLY KOEN as members of the CITY OF BEVERLY ZONING BOARD OF APPEAL, CAROL HORVITZ as TRUSTEE of the EDGEWATER HOUSE TRUST, and JEFFREY HORVITZ

Introduction

The above-captioned cases, consolidated for trial, involve two abutting oceanfront properties in Beverly, one owned by the Horvitzes and the other by the Wiles. [Note 2] The Horvitz lot, located at #65 West Street, has a large mansion-style house built in 1910, a pool, a recently-built 6,500 square foot two-story gallery connected by an annex to the house, [Note 3] extensive lawns and gardens, and is where the Horvitzes live. See Ex. 1. The Wile lot at #63 West Street is vacant land, upon which the Wiles have long sought to build a home of their own.

Both the Horvitz property and the Wile property are accessed by the same 20'-wide private roadway, located on the Horvitz lot, over which the Wiles have an easement. A third residential property (the Doyle house at #47 West Street) also uses the roadway as its sole means of access, and also has an easement to do so. See Ex. 2 (showing roadway, all three properties, and the proposed house on the Wile lot).

A prior owner of the Wile lot had received a building permit before the Wiles acquired it [Note 4] and, after the Horvitzes' initial challenges to Wiles' easement rights were rejected, [Note 5] the Wiles themselves applied for and received a building permit as well. The Horvitzes, however, appealed the Wiles' permit, were successful in having it vacated at that time, and have opposed every subsequent attempt by the Wiles to obtain a new one. In this they are alone. No one but the Horvitzes - neither the other abutters, nor the others who also use the easement, nor any of the other neighboring property owners - has ever opposed the construction of a single family house on the Wile property.

The result of the Horvitzes' opposition has been twenty-seven years of litigation, with seventeen lawsuits between the parties or otherwise involving the properties. [Note 6] These four cases are the ones still pending, and they dispositively address the central zoning issue which, if resolved in the Wiles' favor, will enable a building permit to issue.

That issue is this. As the result of Wile v. Rattigan, et al., Land Court Case No. 04 MISC. 304412, 16 LCR 764 (2008), appeal dism'd & motion for reconsideration denied, Appeals Ct. Case No. 2009-P-0845 (Orders, May 18 & Jun. 3, 2009), further appellate review denied 454 Mass. 1107 (2009), the roadway to the Wile parcel (the access easement over the Horvitz property) has now been definitively located, definitively adjudicated as 20'- wide along its entire length, and paved its full length to its full 20' width. As found after trial in a prior case, Rattigan v. Wile, Land Court Case No. 92 MISC. 185358, 5 LCR 11 (1997), aff'd 46 Mass. App. Ct. 1103 (1998), further appellate review denied, 429 Mass. 1102 (1999), and now reconfirmed by my factual findings in these proceedings, the length, width, and continuous pedestrian and vehicular use of the roadway over which the easement travels long pre-existed the effective date of subdivision control in Beverly. [Note 7] The dispositive question thus is: does that now-improved roadway provide sufficient access and frontage for a building permit under the City's current zoning ordinance?

The City's boards have said "yes" for other properties in this neighborhood, including all of the others on this same roadway (the Horvitzes at #65 West Street, and the Doyles at #47), and their reasons for saying "no" to the Wiles do not survive factual scrutiny. The roadway existed before subdivision control was effective in the City. It is now paved its full length to its full 20' width, solving the issue that caused the prior permit to be vacated. [Note 8] There are no problems with fire, emergency, or other access to the Wile property over that roadway [Note 9] - certainly none that do not also affect the Horvitzes' recently built annex and gallery, which received the zoning board's blessings - and none at all with normal vehicular passage. [Note 10] The City's own tax department deems the Wile lot "potentially developable" and its property taxes are assessed on that basis. [Note 11] The Horvitzes' claim that the roadway is inadequate for the Wiles is contradicted by their own use of it as the sole access to their home, gallery, and the extensive art collection housed in that home and gallery. And it is further contradicted by their own fire insurance company's inspection and approval of the roadway in connection with the insuring of that collection.

The cases were tried before me, jury-waived. I also took a view. [Note 12] Based on the witness testimony and exhibits admitted into evidence at the trial, my assessment of the credibility and reliability of that evidence, my observations at the view, the undisputed facts identified in connection with previous rulings in the case, [Note 13] and the appropriate inferences to be drawn in light of that totality, I find and rule as follows.

The Cases

As noted above, these four cases present a single dispositive issue: does the now fully-adjudicated and fully-paved roadway serving the Wile lot provide "frontage" under the current zoning ordinance? If the answer is "yes," the zoning board's denial of the Wiles' application for a building permit (Case No. 07 MISC. 364879) must be vacated and reversed, and the planning board's denial of the Wiles' application for a definitive subdivision plan because of its reliance on the roadway for frontage (Case No. 01 MISC. 271690) must be vacated and reversed as well. [Note 14] If the answer is "no," the Wile lot is unbuildable and, as discussed more fully below, the gallery building and annex the Horvitzes recently constructed on their property (Case Nos. 09 MISC. 394371 and 09 MISC. 409778) also violate zoning and must be removed.

Facts

The Wile, Horvitz, Doyle and other lots were created by plan dated July 14, 1950, which was approved by the Beverly Planning Board on October 10, 1954 and then filed at the registry of deeds (the "Kaiser Plan"). A copy of that plan as later annotated by Land Court Chief Justice Kilborn in connection with his trial Decision in Rattigan v. Wile, 5 LCR 11 (1997), aff'd 46 Mass. App. Ct. 1103 (1998), is attached as Ex. 3. The Wile property (#63 West Street) is "Front of Lot No. 1" ("Parcel 2") on Ex. 3. The Horvitz property (#65 West Street) is "Lot A" ("Parcel 1") plus additional land conveyed in 1954 ("Parcel 3"). The Doyle property (#47 West Street) is "Lot B." All three use the same private roadway as their sole access. That roadway starts at West Street (a public street) on the east, goes west and south around the perimeter of "Lot B" (the Doyle lot) towards the Horvitz house, and then turns west at the fork to the Horvitz house to and across the top of the Wile lot where it ends at its intersection with a 20'-wide access route to the beach along the western edge of that lot. See Ex. 2 ("the roadway to the Doyle, Horvitz, and Wile properties") & Ex. 3 ("right of way").

The roadway originated as follows. The Horvitz property, the Doyle property, and the Wile property began in common ownership, and the roadway served all three. The Horvitz property was the main house, the Doyles' was its former carriage house (now converted entirely into a residence, with the residential space considerably expanded), and the Wile land (then, as now, vacant) was the access point to the beach and also used for guest parking. While only the Doyle and Horvitz sections of the roadway were improved at that time, all three parts (the section leading to the Doyles', the section leading to the Horvitzes', and the section leading to and across the Wiles') were used for vehicular traffic. As discussed more fully below, this vehicular use included the entire stretch across the top of the Wile lot. [Note 15]

The Wiles purchased their lot in 1992 at a mortgage foreclosure sale, outbidding the Horvitzes at the auction. The Horvitzes had purchased their property the year before at a separate foreclosure sale. The two lots had been in common ownership (first in Herbert Kaiser, then Oliver Ames, and then Susan and Dennis Fabry) until September 25, 1985 when their ownership was split into two trusts. They had separate mortgage foreclosures because they were separately mortgaged after the 1985 split, each of which ultimately went into default.

The Wile lot meets all dimensional criteria to be buildable under the current zoning ordinance. It is large enough, wide enough, and deep enough by far, and there will be no problems with setbacks. [Note 16] The only issue it has ever had is frontage. It is not on a public street, and its only land access is by easement over the roadway which, as noted above, is also used by the Horvitz and Doyle properties as their sole access as well.

Frontage and access for the Wile lot were not an issue prior to the time the Horvitzes and the Wiles became neighboring owners - the time, as the Supreme Judicial Court noted, when "the problems" first began. See Rattigan v. Wile, 445 Mass. 850 , 851 (2006). [Note 17] In October 1985, years before either the Horvitzes or the Wiles came to the neighborhood, the then-owner of the Wile property had successfully obtained a building permit to construct a two-story, ten-room dwelling on that parcel, and did not proceed only because he ran into financial difficulties. [Note 18] The Wiles assumed that they would be similarly successful in obtaining a building permit, and purchased the lot in reliance on that assumption.

To pre-emptively block the Wiles from obtaining such a permit, the Horvitzes almost immediately filed two lawsuits. [Note 19] The Wiles purchased their lot on June 19, 1992. The Horvitzes' first case - a challenge to the Wiles' easement rights, without which the Wile lot would be landlocked and thus unbuildable (Rattigan v. Wile, Land Court Case No. 92 MISC. 185358) - was filed on October 20, 1992, just weeks after the Wiles' purchase. The Horvitzes' second case, Rattigan v. Wile, 93 MISC. 200190, a request for a pre-emptive declaration that a single-family home could not be built on the Wile lot, was filed on November 10, 1993, just after the Wiles filed for summary judgment in 92 MISC. 185358. [Note 20] The Horvitzes lost both cases, with the court ruling in 92 MISC. 185358 that the Wiles had an easement from West Street all across the northern boundary of their lot "for all purposes of a way, not including the right to park vehicles [on the way]" (Rattigan v. Wile, 5 LCR 11 , 14, Jan. 13, 1997) (Kilborn, C.J.) aff'd 46 Mass. App. Ct. 1103 (1998)), and dismissing 93 MISC. 200190 (Rattigan v. Wile, 3 LCR 1999 , May 11, 1995) (Kilborn, J.), aff'd 40 Mass. App. Ct. 1129 (1996). But even though the Horvitzes lost, the cases delayed the Wiles for nearly seven years, up until the denial of the Horvitzes' petition for further appellate review in February 1999. [Note 21]

With those cases finally over, the Wiles applied for a building permit in June 1999. The building commissioner issued the permit, ruling that the frontage requirements in the then-current zoning ordinance were met by the roadway. The City Solicitor concurred in a formal written opinion. [Note 22] But the Horvitzes then appealed the building commissioner's decision to the zoning board, which vacated the permit. In the board's view, the roadway as it then existed did not suffice as a "street right-of-way" because of its narrow width and marginal physical condition. [Note 23] The board also ruled that the lot fell short of the minimum required frontage (175') because, even though the lot was 191.15' wide, the board believed that another provision in the ordinance required the exclusion of any part of that width that was subject to an easement serving another lot [Note 24] and there was such an easement at the western end of the lot, 20' wide, that gave the Wiles' northern neighbor access to the beach. See Ex. 3. The Wiles then appealed the board's decision to the Land Court. Wile v. Beverly ZBA, et al., Land Court Case No. 00 MISC. 265455.

The Land Court affirmed the board's decision on summary judgment. 12 LCR 4 (Jan. 8, 2004) (Lombardi, J.). In doing so, Judge Lombardi did not discuss the board's ruling on the roadway's condition, but instead focused solely on the board's other ground for denial - the length of the frontage. The Wiles argued that their lot qualified as "buildable" under the then-applicable zoning ordinance provisions both when it was created (1950) and at the time of their building permit application (1999). Judge Lombardi disagreed, ruling that, because the Wile and Horvitz lots were in common ownership until 1985, and because the status of a lot immediately prior to a zoning change is controlling, the Wile lot was not separate for zoning protection purposes at the time the 175' requirement was added (1975) and thus had no "grandfather" protection from it. As for compliance with the zoning ordinance in effect at the time of the permit application (1999) when the lots were separate, the court adopted the board's interpretation of the ordinance as requiring the exclusion of the 20' easement on the western side of the Wile lot (a provision added in 1996, three years before the Wiles applied for their permit) - an exclusion which dropped the lot's frontage from 191.15' to 171.15' - and affirmed the denial of the building permit on that ground.

On appeal, the Wiles abandoned their claim to "grandfather" status and, instead, relied solely on their argument that their lot was buildable under the then-current (1999) ordinance, renewing their contention that the easement exclusion did not apply to frontage. The Appeals Court took the opposite approach from the Land Court on that question, not reaching that question at all. [Note 25] Instead, it reached and relied solely on the board's other ground (the one not reached by the Land Court) that the roadway was not a "street right of way" within the meaning of the ordinance. The board, it found, had reasonably interpreted its ordinance as requiring "a road suitable for vehicular access" and this roadway, "because of its narrow width and marginal physical condition [,] . . . was not functionally a street." Wile v. Beverly ZBA, et al., Mem. & Order Pursuant to Rule 1:28, 64 Mass. App. Ct. 1107 (2005), 2005 WL 2061166 at *2. Critically for present purposes, the roadway had not been paved at that time and was simply an unimproved track. Thus, the finding of inadequacy then is not preclusive of a finding of adequacy now. "A previously adjudicated issue is not 'identical' for purposes of collateral estoppel, where the facts material to the subsequent litigation have changed since the prior adjudication." Barry v. Planning Bd. of Belchertown, 64 Mass. App. Ct. 314 , 322 (2019).

In light of these rulings, the Wiles' next step was clear: to definitively establish the location and uniform width of the roadway, and then improve its physical condition by paving it. As previously noted, the Horvitzes would not agree to either, so another lawsuit was filed, Wile v. Rattigan, et al., Land Court Case No. 04 MISC. 304412. In the meantime, the Wiles' case appealing the planning board's denial of subdivision approval of the roadway (Wile v. Beverly Planning Bd., et al., Land Court Case No. 01 MISC. 271690 - part of these proceedings) was held in abeyance. See Wile v. Beverly ZBA, et al., 12 LCR 4 , 8 n.14 (2004).

In the previous case concerning the Wiles' easement rights over the Horvitzes' land (Rattigan v. Wile, Land Court Case No. 92 MISC. 185358, discussed supra), then-Chief Justice Kilborn entered summary judgment for the Wiles and, in doing so, established three points important to these proceedings. See Wile v. Rattigan, et al., 5 LCR 11 (Jan. 13, 1997), aff'd 46 Mass. App. Ct. 1103 (1998), further appellate review denied, 429 Mass. 1102 (1999). These were:

First, the Wiles had an easement over the roadway beginning at West Street and stretching across the entire northern boundary of their lot. See Ex. 3 (Judge Kilborn's Decision Sketch, showing the roadway easement). This easement included not only "the Avenue" (the sections of the roadway serving the Doyle lot and the Horvitz lot), but also the section across the top of the Wile lot (8' on the Wiles' own land and a 12' easement over the bottom part of the Horvitzes' Parcel 3) and a 20'-wide "connector" between the two. See 5 LCR at 12, Finding #12(a) (right of way 20'wide). See also Wile v Rattigan, 16 LCR 764 (right of way a uniform 20' wide over the Horvitz land, including the "connector" to the Avenue and the Avenue itself).

Second, the scope of the easement included full vehicular access for the Wiles (the easement over the roadway was "for all purposes of a way, not including the right to park vehicles").

Third, the easement was express (by grant from the then-owner of the Horvitz property, Susan Fabry, see Deed, Fabry to T.I. Realty Trust (Sept. 25, 1985)) and, even if not express, was also implied because (1) the easement was necessary to access the Wile parcel, and (2) importantly for purposes of these cases, it was already in existence on the ground. See 5 LCR at 14, Finding #34 (right of way's prior existence on the ground).

Based on those findings by Judge Kilborn, the evidence I heard in these cases, my observations at the view, and the reasonable inferences I draw from them, I fully concur with Judge Kilborn regarding the pre-existence of the entirety of the roadway, and find that (1) it existed along its entire length at least as far back as 1930 and, most likely, to the time the main house was built in 1910, (2) it was 20' wide during the entirety of its existence, and certainly before the effective date of subdivision control in Beverly (1945), and (3) it was used by vehicles, across its entire length, dating back to at least 1930 and likely to the time the house was constructed on the Horvitz land (1910). [Note 26] My reasons include the following:

* The 20' easement on the western edge of the Wile lot was clearly a main route to the beach. [Note 27] The fact that it is 20'-wide indicates that it was used by vehicles. [Note 28]

* The 8' easement across the top of the Wile lot that was granted to the Doyle lot for pedestrian access to that 20' easement would have followed an established route to get there.

* The total width of that established route from the Avenue, over the connector, and then across the top of the Wile lot to that 20' easement would itself have been 20' to accommodate vehicles going across it [Note 29] and to match the width of the other vehicular roadways on the property. [Note 30]

* The express easement grant in 1985 (20' wide in total) would logically have followed an existing route and reflected its existing width. [Note 31]

* Vehicles would have used this route because it was the most convenient way to drive onto the now-Wile lot for parking, gatherings, and beach access. They would not have driven diagonally (or otherwise) across the Wile lot because that would have put tracks in its interior, which likely had grass and plantings. Indeed, driving along these edges of the lot is the practice today. [Note 32]

As noted above, because (despite Judge Kilborn's rulings and their affirmance on appeal) the Horvitzes would not agree to the location of the roadway, its uniform 20' width along the entirety of its length, or the Wiles' right to pave it, the Wiles brought Wile v. Rattigan, et al., Land Court Case No. 04 MISC. 304412, to definitively establish those rights. That case went to judgment establishing each of those rights, and the Horvitzes' appeal from that judgment was dismissed by the Appeals Court, with the Supreme Judicial Court denying further appellate review. Wile v. Rattigan, 16 LCR 764 (2008), appeal dism'd & motion for reconsideration denied, Appeals Ct. Case No. 2009-P-0845 (Orders, May 18 & Jun. 3, 2009), further appellate review denied 454 Mass. 1107 (2009).

The Wiles then surveyed and paved the entirety of the roadway to its 20' width and, based on that, re-applied for a building permit, asserting that they now complied with the current zoning ordinance's "frontage" requirements. The building inspector denied the permit application, the zoning board of appeals affirmed that denial, and the Wiles appealed to this court pursuant to G.L. c.40A, §17 (Case No. 07 MISC. 364879). I was also assigned three other cases between the parties - the Wiles' G.L. c.40A, §17 appeal of the zoning board's G.L. c. 40A, §6 "finding" on which the subsequent building permit for the construction of the Horvitzes' 6500 square foot gallery was based (Case No. 09 MISC. 394371), [Note 33] the Wiles' c.40A, §17 appeal of the zoning board's affirmance of the building permit for the gallery (Case No. 09 MISC. 409778), and the Wiles' G.L. c.41, §81BB appeal of the denial of their definitive subdivision plan which relies on the roadway for frontage (Case No. 01 MISC. 271690). The gallery houses most of the Horvitzes' collection of French old master paintings (the remainder of those paintings, along with the Horvitzes' Japanese ceramics and Chinese lacquers, are displayed in the 20,000 square foot main house), and also contains Mr. Horvitz's family office (as previously noted, he is an investor), the offices of his businesses (his two secretaries, his financial advisor, and his in-house lawyer), and Mrs. Horvitz's office (who is a lawyer as well as an art collector). [Note 34]

In addition to the business-related vehicles that come and go to the gallery over the roadway (employees, clients, consultants, Amazon, Federal Express, United Parcel Service, and other delivery trucks, etc.) and the fire and other emergency vehicles that respond to alarms, [Note 35] there are groups that periodically come to view the French master paintings which arrive and depart by individual cars or together in full-sized buses. [Note 36] The Horvitzes also host large political and other events on their property several times a year. These have included a fundraiser for Beverly's mayor, and a birthday party for then-Lieutenant Governor Kerry Healey. Guests on these large-event occasions park in the courtyard in front of the Horvitz buildings and along the sides of the roadway. All vehicles coming and going to the Horvitz property do so exclusively on the shared roadway. There is no other vehicular access to the Horvitz, Doyle, or Wile properties.

The zoning board affirmed the denial of the Wiles' building permit application (the application was by Charles Benevento, the prospective purchaser of the property, but joined-in by Mr. Wile in his capacity as trustee and beneficiary of the West Street Realty Trust, the record owner) because it did not view the roadway as sufficient "frontage" under the ordinance. To the board, the roadway was too narrow and its 90-degree turn at the end of the Avenue onto the Wile lot too sharp for fire trucks and other emergency vehicles. Notably, the board had no problem with the roadway width and the fire and emergency vehicle access it provided when the board approved the finding and building permit for the Horvitzes' gallery.

Recognizing the inconsistency in this, which I discuss more fully below, I remanded the three cases to the zoning board for explanation. See Mem. & Order on Pending Motions (Oct. 1, 2013). The purpose of the remand was to hear from the board on what, exactly, were its reasons for ruling that the Wile lot lacked frontage and thus was not a buildable lot. If the roadway was adequate for the Horvitzes and their gallery, why not for a single family house on the Wile lot? Barring a material distinction, permits should issue for both, or neither.

On remand, the board confirmed two things: (1) under the current zoning ordinance, "frontage" need not be on a public way but, instead, can be on a private way as well (ZBA Second Corrected Decision on Order of Remand at 1 (Jun. 26, 2014)), and (2) "frontage" is defined in Section 38-2.B.30 of the zoning ordinance, and a way meeting any one of its three alternatives suffices. (ZBA Second Corrected Decision on Order of Remand at 2). Those alternatives are:

1. a public way or a way certified by the City Clerk that is maintained and used as a public way;

2. a way shown on a plan approved and endorsed by the Beverly Planning Board in accordance with the Subdivision Control Law; or

3. a way physically in existence when the Subdivision Control Law became effective in Beverly having, in the opinion of the Planning Board, sufficient width, suitable grades, and adequate construction to provide for the needs of vehicular traffic in relation to the proposed use of the land abutting thereon or served thereby, and for the installation of municipal services to serve such land and the buildings erected or to be erected thereon.

Zoning Ordinance, §38-2.B.30. I concur with the board on this, as it accurately reflects the provisions in the ordinance.

Where the board erred was in the factual findings on which it based its ruling that the roadway serving the Wile parcel did not suffice as frontage under the ordinance definition. These erroneous findings were: (1) that the roadway was originally an 8'-wide path intended for foot traffic, (2) that the path was only widened to its present 20' width in recent years when Mr. Wile paved the 8'-wide path plus an additional 12' of yard without seeking or receiving approval from the Beverly Planning Board, (3) that the way, to its present 20' width, was not "physically in existence when the Subdivision Control Law became effective" and thus would need to be 24' wide to meet the current minimum requirement for new subdivision roads, and (4) that the dimensions of the way "are not sufficient to allow emergency vehicles to maneuver over the way as evidenced by the fact that a fire truck was not able to make the 90-degree turn required to access (and leave) the 20-foot paved way without driving across the property of Mr. Horvitz." As set forth in my factual findings above and discussed again in the Analysis section below, each of these assertions is factually wrong.

* The entirety of the roadway, including the section across the top of the Wile lot, has been 20'-wide and used for vehicular traffic since at least 1930 and, most likely, since at or shortly after 1910.

* It was physically in existence, 20'-wide and used for vehicular traffic, before the Subdivision Control Law became effective in Beverly (1945).

* Now that it has been paved to its full 20' width, it has more than "sufficient width, suitable grades, and adequate construction to provide for the needs of vehicular traffic in relation to the proposed use of the land abutting thereon or served thereby, and for the installation of municipal services to serve such land . . ." [Note 37] This is not a new road, so the 24' width requirement for new subdivision roads is not applicable. Every roadway in this neighborhood is 20' wide and there is no evidence that they have ever experienced problems. This is not a road to a 40-house subdivision. It is a roadway to three single-family houses - two of which the board has no issue with (the Horvitzes and the Doyles) - and all that is in question is its adequacy to serve this one additional house at an endpoint in the road (the roadway forks, and the Horvitz house is at the other endpoint) with no other houses beyond the proposed Wile home, now or ever (the Wile lot is too small to subdivide). The roadway is flat over its entire length. No one challenges its adequacy for ordinary vehicle traffic, including ambulances and police, going to and from the Wile parcel. And, with respect to its adequacy for fire protection purposes, the fire department did on-site investigations with actual fire trucks on three separate occasions and found it not only adequate for those trucks, but also that it enhanced fire protection for the abutting properties due to the addition of a new fire hydrant on the Wile lot close to both its proposed house, the Horvitzes' buildings, the Doyle residence, and the home abutting the Wile lot on its north. [Note 38]

* The roadway's dimensions are sufficient for emergency vehicles to maneuver over the entire length of the roadway with no encroachment outside the 20'-wide easement except, at most, a four inch swing of a fire truck's rear bumper onto the Horvitzes' property for no more than a few feet during the swing around the 90-degree turn at the end into the Wile lot (a turn that only affects that single lot). [Note 39] Contrary to the board's assertion, there will be no driving across any part of the Horvitz property during any of the fire trucks' maneuvers.

* In contrast, fire trucks accessing the board-approved Horvitz gallery and the rear of the other Horvitz buildings during an actual fire will likely drive completely on the Wile lot to get to the rear of those buildings. This is because there is insufficient room on the side of the gallery and the side of the main house for fire trucks of any size to reach those rear areas while staying only on the Horvitz property itself. See Ex. 2, showing the configuration of the Horvitz buildings on their lot (all just the minimum 20' from the sidelines, with the house, gallery, and annex blocking all access through the interior of the lot) and the rows of trees the Horvitzes have planted in those setbacks making their use for fire vehicle access impossible.

* Thus, any judgments on the adequacy of the roadway to the Wile lot are inconsistent with the board's judgments regarding the Horvitz gallery. Notably, nowhere in its original Remand Decision (Jun. 10, 2014), nor in its Corrected Remand Decision (Jun. 24, 2014), nor on its third try in its Second Corrected Remand Decision (Jun. 25, 2014), does the board address or explain the inconsistency or why, in its view, the situations are different. Nor did it make any attempt to do so at trial, where its counsel asked no questions and submitted no memoranda or post-trial briefs.

* Even the City's other departments consider the Wile lot buildable. As previously noted, the tax assessor's office taxes it as such, and has done so for many years. [Note 40]

Because the Wiles' roadway, 20' wide and used throughout for vehicular traffic, pre-existed subdivision control in Beverly, I need not and do not reach the question of whether showing the Doyles' 8' pedestrian easement on the 1954 subdivision plan [Note 41] sufficed as "a way shown on a plan approved and endorsed by the Beverly Planning Board in accordance with the Subdivision Control Law" for the full 20'-wide roadway itself and thus brings it within that aspect of the frontage definition in the current zoning ordinance.

Further facts are set forth in the Analysis section below.

Analysis

The Wiles' Standing to Appeal the Finding and Special Permit for the Horvitzes' Gallery

I begin with the Horvitzes' claim that the Wiles have no standing to challenge either the finding or the building permit for the construction of their gallery - an argument that has no merit, that I have ruled against before, [Note 42] and needs only brief additional discussion, if any. There can be no question that the Wiles have standing to appeal the denial of their own application for a building permit and for definitive subdivision plan approval of their own lot.

The plaintiff in both of the gallery appeals is Evan Wile as trustee of the West Street Realty Trust - the record owner of the Wile property. He is also the sole beneficiary of that Trust, although that beneficial interest has been assigned to Ms. Wile to secure her property settlement in their divorce. With Ms. Wile's assent, that assignment has not yet taken place pending the resolution of these cases. In any event, she fully agrees with their filing and prosecution. There is an oral agreement with Mr. Benevento to purchase the property if it obtains a building permit, but that obviously has not yet taken effect and, because it is not in writing, is not legally enforceable. See G.L. c. 259, §1 (Fourth). He thus has no ownership interest. In sum, put simply, Mr. Wile is the right plaintiff to bring the appeals.

The Wile property directly abuts the Horvitz property, and thus has presumptive standing. See Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 (1996). When that rebuttable presumption is challenged, all the plaintiff need do is "put forth credible evidence to substantiate his allegations [of aggrievement]." Marashlian, 421 Mass. at 721. The Wiles have more than done so. Among the aggrievements they allege are the construction impacts that occurred during the building of the Horvitzes' gallery (including construction vehicles driving over their land, see Gale v. Zoning Bd. of Appeals of Gloucester, 80 Mass. App. Ct. 331 , 335 (2011)), additional traffic on the easement as a result of the gallery's operations interfering with their ability to use the easement unimpeded, and a likelihood that visitors and contractors to the gallery will park on their property. As discussed above, there is also the near-certainty that fire trucks fighting a fire at the Horvitz gallery will drive onto and over the Wile lot to get to the rear of the gallery.

Increased conflicts on an easement (here, arising from cars parked along it during large events and then turning around across it, or simply stopped in a long line while waiting to park on the Horvitz property itself) are sufficient to establish standing. See Gale, 80 Mass. App. Ct. at 335; Hickey v. Pathways Ass'n, Inc., 472 Mass. 735 , 753 (2015) (easement holders' right to challenge use of easement); Marashlian, 421 Mass. at 722 (increased traffic "legitimately within the scope of the zoning laws"). A credible case has been made that such increased conflicts will occur here, even if the Wile property remains vacant land. Mrs. Horvitz herself conceded that the Wiles use their property continuously during the summer, primarily for its beach, with their guests coming and going in "sort of a constant flow of vehicular traffic." [Note 43] The roadway is one way each way, and a large event at the gallery with associated turn-arounds and back-ups will certainly cause delays to the Wiles and their guests getting on and off the Wile land. In any event, as previously discussed, if the construction of a single family house on the Wile property sufficiently impacts the Horvitzes to give them standing to object to the construction of such a house, the Wiles' certainly have standing to object to the Horvitz gallery. [Note 44]

As for the likelihood that visitors and guests to the Horvitz gallery will park on the Wile property, the Horvitzes may say that they have put up signs to prevent it and expect their contractors and visitors to abide by those signs, and that they have expanded the area for parking on their own land to make parking on the Wiles' land unnecessary, but what has happened before - and happened repeatedly, seemingly every time contractors work on the Horvitz house and every time there is a large event there - is likely to happen again, especially while the Wile property remains unoccupied, vacant land. In any event, the Wiles have put forth credible evidence of such a likelihood, which suffices.

The impact that will almost certainly occur is fire truck encroachment over the Wile property to reach the rear areas of the Horvitz gallery during fires. As previously noted, given (1) the configuration of the Horvitz buildings on their lot (they are all close to the sidelines of the property and, because they are joined together, trucks must go completely around them to get to their rear areas), (2) the continuous row of trees the Horvitzes have planted in the sideline setbacks that makes those areas too narrow for trucks to squeeze through them quickly using only that space, and (3) the fact that, during fire emergencies, the trucks will drive through the quickest route regardless of who owns it, that route will be over and through the Wile property.

The fact that such an encroachment onto the Wile property will occur during fire-fighting on the Horvitz property shows the pretextual nature of the Horvitzes' objections to the minor (four-inch) swing incursion outside the easement area that may occur when fire trucks come to fight fires on the Wile lot (see n.39, supra) - a situation that, if the objection was sincere, could easily be addressed by a minor alteration to the easement that would allow a curved turn to the Wile property rather than a 90-degree one. It also shows that the Beverly planning and zoning boards' purported reliance on this as grounds to find the Wile roadway "inadequate" (a ruling contrary to the Beverly Fire Department's own assessments) is groundless, arbitrary, and inconsistent with its rulings on the Horvitz property (see discussion below). Using actual fire trucks, the fire department had no problem taking the corner in a single turn, no problem turning the truck around on the Wile property, and saw no encroachments by the trucks outside the easement area. [Note 45] Moreover, firefighters have "a common law right to enter upon private property in order to prevent the spread of fire." Inhabitants of Hyde Park v. Gay, 120 Mass. 589 , 593 (1876); accord Mounsey v. Ellard, 363 Mass. 693 , 697-698 (1973); Proctor v. Adams, 113 Mass. 376 , 377-378 (1873).

The Wiles thus have standing to appeal the gallery finding and special permit, and to press for the tear-down and removal of the gallery if they are successful. And even if they had no such standing, they can still raise the issue of their disparate treatment by the zoning and planning boards - their contention that they are entitled to the same ruling on the adequacy and of the roadway and its sufficiency for fire and other emergency access that the Horvitzes implicitly received when their gallery finding and special permit were approved.

The Wiles' Appeal from the Denial of Their Current Building Permit Application and the Denial of Approval of Their Subdivision Plan Showing the Roadway as Frontage

In each of the two decisions regarding the Wile property at issue in these proceedings - the denial of their current building permit application (Case No. 07 MISC. 364879), and the denial of their application for subdivision approval (Case No. 01 MISC. 271690) - the key ground for denial was the question of frontage. The resolution of both these cases thus turns on the same question: Does the 20'-wide roadway from West Street to and across the top of the Wile parcel, now definitively located and paved to its full 20' width, meet the definition of "frontage" in the current zoning ordinance? I address this before turning to the Wiles' appeal of the Horvitz zoning decisions because the two sets of decisions are related and, if the Wiles prevail on the grant of their building permit and subdivision road approval, the reasons for that grant (the adequacy of the roadway as frontage) moot their appeals of the Horvitz gallery.

Judicial review of local board decisions, whether under G.L. c.40A, §17 (the ZBA decisions) or G.L. c. 41, §81BB (the planning board decision):

. . . involves a combination of de novo and deferential analyses. The trial judge makes his own findings of facts and need not give weight to those the board has found. [Note 46] The judge then determines the content and meaning of statutes and bylaws and decides whether the board has chosen from those sources the proper criteria and standards to use . . . [D]eference is given to a local board's reasonable interpretation of its own zoning bylaw, with the caveat that an incorrect interpretation . . . is not entitled to deference. After determining the facts and clarifying the appropriate legal standards, the judge determines whether the board has applied those standards in an unreasonable, whimsical, capricious or arbitrary manner . . .. The board is entitled to deny a permit even if the facts found by the court would support its issuance, [but] the judge nonetheless should overturn a board's decision when no rational view of the facts the court has found supports the board's conclusion. Deference is not appropriate when the reasons given by the board lacked substantial basis in fact and were in reality mere pretexts for arbitrary action or veils for reasons not related to the purposes of the zoning law.

Shirley Wayside Ltd. Partnership v. Bd. of Appeals of Shirley, 461 Mass. 469 , 474-475 (2012) (internal citations and quotations omitted).

Importantly, the court may overrule a board and direct that a permit or aspects of a permit issue without need of a remand to the board where "the salient facts found by the Court would not change" (on remand, "a board may not ignore or disagree with the specific findings of a reviewing court after a judge has fulfilled her statutory duty to determine the facts"), and remand would simply postpone "an inevitable result" on those facts. See Wendy's Old Fashioned Hamburgers of N.Y. Inc. v. Bd. of Appeals of Billerica, 454 Mass. 374 , 382-383 & nn. 22 & 23, 389 (2009).

As noted above, the question presented by these cases is whether the Wile roadway qualifies as "frontage" under the current zoning ordinance. It does so if it meets any of the following three tests:

* If it is a public way or a way certified by the City Clerk that is maintained and used as a public way;

* If it is a way shown on a plan approved and endorsed by the Beverly Planning Board in accordance with the Subdivision Control Law; or

* If it is a way physically in existence when the Subdivision Control Law became effective in Beverly having, in the opinion of the Planning Board, sufficient width, suitable grades, and adequate construction to provide for the needs of vehicular traffic in relation to the proposed use of the land abutting thereon or served thereby, and for the installation of municipal services to serve such land and the buildings erected or to be erected thereon.

Beverly Zoning Ordinance, §38-2.B.30.

The Wile roadway is not a public way or a way certified by the City Clerk as maintained and used as a public way and, as previously stated, I need not and do not reach the question of whether it is "a way shown on a plan approved and endorsed by the Beverly Planning Board in accordance with the Subdivision Control Law." This is because it meets the third test. It is a way that was physically in existence when the Subdivision Control Law became effective in Beverly [Note 47] and, on the facts established at trial regarding the roadway, now that it has been paved to its full width, neither the planning board nor the zoning board can rationally conclude that it lacks "sufficient width, suitable grades, and adequate construction to provide for the needs of vehicular traffic in relation to the proposed use of the land abutting thereon or served thereby, and for the installation of municipal services to serve such land and the buildings erected or to be erected thereon."

No one challenged, nor can rationally challenge, the adequacy of the roadway for the installation of municipal services. The Wiles have an easement over all parts of the roadway that they do not own, and such an easement gives them the right to install all necessary utilities within the easement area. See G.L. c. 187, §5. Its 20' width is more than sufficient for such installation, and it is flat for its entire length, raising no physical impediments to installation.

Determining whether its width, grades, and construction adequately provide for "the needs of vehicular traffic in relation to the proposed use of the land abutting thereon or served thereby" begins with an identification of that land and its uses. The entirety of the roadway serves only three houses, this fork of the roadway ends at the Wile lot, and there is no prospect of any other houses ever using it (the lots are too small to subdivide). The roadway's adequacy for the land it serves that abuts the Wile lot (the Horvitz property), including the roadway's grading and width, was long established even before it was paved, dating back to at least 1910 when the Horvitz house was built. As Mrs. Horvitz herself testified, fire trucks have had no difficulty using it to get to her property on the numerous occasions they have done so in response to false alarms from the Horvitz house and buildings, even in the total darkness of 2:00 and 4:00 a.m. The Horvitzes have an important collection of French old masters and other artwork at their house and gallery, clearly of significant value. [Note 48] All of it has been insured by the Horvitzes, and their insurance company is satisfied with the adequacy of fire access. Cars, buses, delivery trucks, and contractors' vehicles have routinely used the roadway without problems, including those that come and go to the Horvitz gallery and its offices for business purposes every day.

Every other private roadway in the immediate area is the same 20'-width, even those serving over a dozen houses (e.g., Haven Way), and building permits have routinely been issued to those houses. Indeed, on this very roadway even before it was paved, the Doyle house received at least four building permits in recent years (an addition in 1997, a complete kitchen renovation in 1997, interior alterations in 2008, and bedroom and bathroom renovations in 2010), and the Horvitzes themselves received at least two building permits (house renovations in 1992, and the gallery construction in 2009), without any issue of "frontage" ever being raised by the boards. Only the Wiles have had permits denied on that basis.

The City's reviewing authorities had no real issues with the Wiles' proposed subdivision plan other than the length of the roadway's dead-end. [Note 49] But there can be no legitimate concerns with the length of the roadway to the Wile property in this context. The length to the Horvitz property is longer and has never stood in the way of the issuance or affirmance of permits to the Horvitzes, and the Wile property has more than sufficient room for vehicles, including fire trucks, to turn around. [Note 50] Nor, factually, is there a genuine issue with the adequacy of the roadway. Its 20'-width is wide enough for two-lane traffic and, again, has never led to the denial of building permits to either the Horvitz or the Doyle properties. The current 24' minimum width requirement for new subdivision roads does not apply because this is not a new road, but rather a pre-existing one that physically existed from before the date the subdivision control law became effective in Beverly.

As previously noted, the 90-degree turn from the Avenue towards the Wile lot only affects the Wile lot (there are no properties beyond it that the roadway serves), cars and trucks have no problem making that turn, and the fire trucks that will actually come to the Wile property can make that turn, staying within the roadway, in a single movement. [Note 51] The type and volume of traffic to and from a house on the Wile lot will only be the type and volume associated with a normal single family home (unlike the Horvitzes, the Wiles will not have an art gallery or multiple offices), and the roadway width will easily accommodate that volume within its two lanes. As shown on the subdivision plan, the Wiles will install a fire hydrant on their property near its intersection with the Avenue which will serve both the Wile and the Horvitz properties, enhancing fire safety for both. [Note 52]

In sum, the roadway to the Wile property, 20'-wide and now fully paved, more than meets the test for ways "physically in existence when the Subdivision Control Law became effective in Beverly" (i.e., "sufficient width, suitable grades, and adequate construction to provide for the needs of vehicular traffic in relation to the proposed use of the land abutting thereon or served thereby"), and any conclusion otherwise by the planning or zoning boards would be contrary to these facts and have no rational basis. The roadway thus provides the "frontage" necessary for a building permit and approval of the definitive subdivision plan. [Note 53]

The Horvitz Gallery

Although opposed to any construction on the Wile lot, the Horvitzes have added an enormous new structure to theirs - a 6500 square foot, two-story gallery and office building. Contending that their house was a lawfully pre-existing, non-conforming structure and that the gallery and offices would be nothing more than an alteration or addition to that house, they applied for (and received) a G.L. c. 40A, §6 Finding that the gallery would not be substantially more detrimental to the surrounding neighborhood than the house. [Note 54] Case No. 394371 is the Wiles' G.L. c.40A, §17 appeal from that Finding, and Case No. 409778 is their G.L. c. 40A, §17 appeal of the Board's decision upholding the subsequent building permit. Despite the pendency of those appeals, the Horvitzes elected to proceed "at risk" and build the gallery. As expressly stated in the permit, they thus knowingly assumed the risk and expense of having to tear the gallery down if the Wiles' appeals are successful.

Put briefly, the Wiles' arguments regarding the Horvitz gallery are these. The Wile and Horvitz parcels were merged for zoning purposes in January 1976 when they were owned by the Fabry family. See Wile v. Houseman, 12 LCR 4 , 8 (2004) (Lombardi, J.). The Horvitz lot thus lost whatever "grandfather" protection it had previously had as a separate lot [Note 55] and, when it again became separate by conveyance in 1985, it became subject to the then-current requirements of the zoning ordinance. Those requirements then, and now, include a minimum of 175' of continuous frontage. See Beverly Zoning Ordinance §29-2-J (1984) and §29-5.I & §29-8.C.10 (2009). Because the Wile lot became separate from its previous merger with the Horvitz parcel at the same time, these same provisions apply to the Wile parcel in exactly the same way. Neither the Horvitz lot nor the Wile lot meet that frontage requirement unless the roadway counts as frontage. [Note 56] Without such frontage, neither a G.L. c. 40A, §6 "finding" piggy-backing on the 1910 structure nor a building permit for the gallery could legally issue. [Note 57] Thus, if the Horvitz "finding" and permit are valid, so is a building permit for the Wile lot.

For the reasons set forth above, I have found and ruled that the roadway does meet all the current requirements for "frontage" for both the Wile and Horvitz lots. Based on that finding and ruling - and only on that basis - I find and rule that the Horvitzes' gallery was validly constructed, that it may remain, and that (as the Wiles agree) their arguments against it are moot. I thus address those arguments against the gallery only hypothetically, in the interest of completeness, should my findings and rulings regarding the roadway be reversed on appeal.

I begin by noting a significant omission. The boards themselves have not defended their unequal treatment of the roadway - perfectly fine for the Horvitzes and the Doyles, but not for the Wiles [Note 58] - either in their remand decisions responding to the court's Memorandum & Order on Pending Motions (Oct. 1, 2013) or in any brief or post-trial brief in these proceedings. Indeed, they filed no trial or post-trial briefs at all, and did not actively question any of the witnesses at trial themselves. Only the Horvitzes did so. Moreover, as previously noted, the City taxes the Wile parcel as "potentially developable." [Note 59] "The general deference afforded actions of a local special permit granting authority may yield to a court's sense of fairness when it appears that special permit granting authority has applied dramatically different standards to similarly situated applicants." Wendy's Old Fashioned Hamburgers of N.Y., Inc., 454 Mass. at 388 (citing B.C. Levey, Massachusetts Zoning and Land Use Law §7-22, at 195, 196 (1996) (internal quotation marks omitted).

I agree with the Wiles that the issues of roadway adequacy for the Wiles and for the Horvitzes are not materially distinguishable, and that the two stand or fall together. In particular, I agree with the Wiles that the issuance of the gallery building permit to the Horvitzes cannot be defended under the grandfather protections of G.L. c.40A, §6. Under G.L. c.40A, §6, ¶1, lawful pre-existing nonconforming structures or uses are provided with grandfather protection against subsequent amendments to the zoning ordinance if the local zoning board of appeals finds that the proposed extension of the structure is not "substantially more detrimental" to the neighborhood than the existing nonconforming structure. Here, however, the gallery is not an "extension" within the meaning of that provision. It is an entirely new structure, connected to the existing house only by "annex." [Note 60] Moreover, the Horvitz lot resulted from the 1985 division of an existing nonconforming lot (the merged Horwitz and Wile lots, neither of which had sufficient "frontage" at that time unless the roadway counted as such) into two, smaller nonconforming lots, which is "zoning misbehavior." [Note 61] See Wells v. Zoning Bd. of Appeals of Billerica, 68 Mass. App. Ct. 726 , 735-736 (2007); Zitzkat v. Truro Zoning Bd. of Appeals, 71 Mass. App. Ct. 1114 , 2008 WL 756222 at *2-*3 (Mar. 21, 2008); see also Raia v. Bd. of Appeals of North Reading, 4 Mass. App. Ct. 318 , 322 (1976). The smaller nonconforming lots created by such "zoning misbehavior" are unlawful nonconforming lots, not entitled to protection under G.L. c.40A, §6. Zitzkat, 2008 WL 756222 at *3. "Zoning misbehavior" committed by a prior owner is attributed to subsequent owners of the lot as well. See Warren v. Bd. of Appeals of Amherst, 383 Mass. 1 , 13 (1986).

Since the Horvitz lot has no grandfather protections, the lot must meet current zoning for the gallery building permit to be upheld. And it can only meet current zoning requirements for frontage if the roadway counts as frontage. To repeat, there is no distinction between the Horvitz and Wile lots on the issue of frontage. Both stand or fall by the roadway.

Absent considerations not present here, [Note 62] a structure built pursuant to a wrongfully-issued building permit must be ordered removed. See Wells, 68 Mass. App. Ct. at 737 & n.18. If the roadway does not count as frontage for both the Horvitz and Wile lots, the gallery must be torn down.

Conclusion

For the foregoing reasons, I find and declare that the roadway, for its full length from West Street to the western edge of the Wile lot, meets all the requirements of "frontage" under the current Beverly zoning ordinance. It was physically in existence, 20' wide, prior to the effective date of subdivision control in Beverly, and now that it has been definitively located, declared to be a uniform 20' wide for its entire length, and paved to its full width, it has "sufficient width, suitable grades, and adequate construction to provide for the needs of vehicular traffic in relation to the proposed use of the land abutting thereon or served thereby," is more than adequate for fire and emergency access, and to find otherwise would be irrational, arbitrary and capricious, particularly in light of the board's treatment of the Doyle, Horvitz, and other similarly situated properties in the neighborhood.

The decision of the Beverly building inspector to deny a building permit to the Wile parcel for lack of frontage, and the decision of the Beverly zoning board of appeals to affirm the denial on that basis, are thus VACATED and the Wile/Benevento application for such a permit (or such other application as they may now choose to submit) is REMANDED to the building inspector to review on the basis that sufficient legal frontage and adequate fire and emergency access exists, and that the permit application may only be denied or modified, if at all, for other reasons. The decision of the planning board to deny the Wiles' application for approval of their definitive subdivision plan is also VACATED and REMANDED to that board for reconsideration in light of this court's ruling that the now-paved roadway provides sufficient frontage for the Wile lot, that it is more than adequate for pedestrian, vehicular, fire, emergency, police, and other access, and that it is entitled to waivers of the roadway length, sidewalk, and other requirements insofar as they might otherwise be applicable.

Judgment shall enter accordingly.