Opinion
21-P-296
03-22-2022
Ellen R. EPSTEIN, trustee, & another v. PLANNING BOARD OF MARBLEHEAD & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Jay M. Epstein, appeals from a Land Court judgment affirming the Marblehead planning board's (board) approval of an application for a special permit for site plan approval filed by Robert P. Jacobs. Epstein brought the present action pursuant to G. L. c. 40A, § 17, challenging the board's approval of Jacobs's application. On appeal, he contends that the Land Court judge (and the planning board) applied the incorrect legal standard to Jacobs's special permit application, failed to adequately consider whether adverse effects had been minimized, and made a clearly erroneous factual finding regarding the location of a tree on the Jacobs property. We affirm.
Discussion. 1. Applicability of G. L. c. 40A, § 9 . The Marblehead zoning bylaw, Article IX, §§ 200-35-37 (bylaw), provides that site plan review be conducted by means of an application for "special permit for site plan approval," and specifically incorporates the procedures in G. L. c. 40A, § 9. Epstein maintains that the board was required to apply the special permit procedures found in § 9 to review of this site plan permit application. He claims that the board provided insufficient detail to support the approval of the application under § 9, and that the judge erred in turn by upholding the board's decision.
The application at issue proposed to take a property, which failed to adhere to existing zoning requirements, and eliminated the nonconformity. For this reason, the application was one as of right, and § 9 did not apply. Section 9 applies to special permits for "uses which are considered desirable but which, unless conditioned, might be incompatible with the zoning in the district.... [A] use allowed as of right cannot be made subject to the grant of a special permit inasmuch as the concepts of a use as of right and a use dependent on discretion are mutually exclusive." Prudential Ins. Co. of Am. v. Board of Appeals of Westwood, 23 Mass. App. Ct. 278, 281 (1986), citing SCIT, Inc. v. Planning Bd. of Braintree, 19 Mass. App. Ct. 101, 109 (1984). See Dufault v. Millennium Power Partners, L.P., 49 Mass. App. Ct. 137, 139 (2000) ; Osberg v. Planning Bd. of Sturbridge, 44 Mass. App. Ct. 56, 59 (1997). Notwithstanding the fact that the bylaw incorporates the procedures under § 9 by reference, and thus may appear to apply to all special permit applications, § 9 does not, as a matter of law, apply to a special permit application for a use as of right.
Epstein urges us to conclude otherwise. However, construing the bylaw to apply to a use as of right would be invalid, because it would "exceed[ ] the scope of the delegation fixed by the unambiguous language of § 9." SCIT, Inc., 19 Mass. App. Ct. at 110. We therefore decline to interpret the bylaw in such a manner.
Section 9 "is unambiguous ... in authorizing special permits only for ‘specific types of uses.’ " SCIT, Inc., 19 Mass. App. Ct. at 110, quoting G. L. c. 40A, § 9. The purpose of § 9 is to provide limited relief by bringing "flexibility to the fairly rigid use classifications of Euclidean zoning schemes." SCIT, Inc., supra at 109. It creates a limited mechanism for approving "specific uses which are deemed necessary or desirable but which are not allowed as of right because of their potential for incompatibility with the characteristics of the district." Id.
2. Review under G. L. c. 40A, § 17 . Since this case involves the regulation of a permitted use as of right, "[t]he scope of review is thus limited to imposing reasonable terms and conditions on the proposed use." Dufault, 49 Mass. App. Ct. at 139. Our review of that decision falls under G. L. c. 40A, § 17. "Review of a board's decision in the Superior Court pursuant to G. L. c. 40A, § 17, involves a ‘peculiar’ combination of de novo and deferential analyses." Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374, 381 (2009), quoting Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555, 558 (1954). "Although fact finding in the Superior Court is de novo, a judge must review with deference legal conclusions within the authority of the board" (citation omitted). Wendy's Old Fashioned Hamburgers of N.Y., Inc., supra at 381. "While a judge is to give no evidentiary weight to the board's factual findings, the decision of a board 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" (quotations and citation omitted). Id. at 381-382.
Because Epstein's appeal relies primarily on his arguments regarding review under § 9, he has focused most of his appellate challenge on the sufficiency of the board's findings. Our review under § 17 is of the judge's findings, however, not those of the board. Id. at 383. We therefore summarize the judge's findings of fact.
Jacobs owns a single-family home located on an oceanfront property in Marblehead's Shoreline Single Residence District. The existing structure is in nonconformity with zoning requirements due to height and setback dimensions. The Epsteins are abutters and share a property line with the Jacobs property. Though the Epstein property does not directly border the ocean, the Epstein house has ocean views from the side of the home that overlooks the Jacobs property and from the rear.
Jacobs applied to the board for a site plan special permit to demolish and remove the existing house and to construct a new single-family home on the property. After a hearing, the board approved the application. The proposed project would bring the Jacobs house into conformity with zoning requirements by reducing its height and observing setback requirements, would be oriented in a manner similar to an existing house on the street, would reduce the gross floor area of the home, and would increase the open space ratio of the Jacobs property. However, the plan would decrease the ocean views from the side of the Epstein property overlooking the Jacobs property; the ocean views from the back of the Epstein property would remain unaffected.
A swimming pool and a detached garage or carriage house are also located on the Jacobs property. Epstein does not challenge the renovations to the detached garage or carriage house.
Additionally, the project would increase the side yard setback from the Epstein property, increasing air, light, and open space for the Epstein house; improve the view for other abutters and the neighborhood by increasing water views, light, and air space; and benefit the town by bringing the house into conformance with zoning requirements and mitigating an existing runoff issue.
The record, with one immaterial exception discussed infra, reveals the judge's findings are fully supported, and they are not challenged on appeal. Based on these findings, the judge concluded that the project complied with § 200-37 of the bylaw, and the project's design adequately minimized the impact to the abutters and the surrounding area.
We agree with the Land Court judge that the board's decision was based on legally tenable ground and not unreasonable, whimsical, capricious, or arbitrary. Under § 200-37 of the bylaw, the board must consider, "among other things, the general purpose and intent of the by-law; the extent to which architectural and design features are in harmony with the prevailing character and scale of buildings in the neighborhood and town (including, without limitation, building materials, screening, breaks in roof and wall lines, adequate light, air, circulation, and separation between buildings); and the extent to which the adverse effects on abutting lots, the immediate neighborhood, and the town are minimized, including, but not limited to, obstructions of views. The site plan approval provision[s] authorize[ ] the board to ‘impose any condition[ ] deemed necessary to achieve the purposes of [the bylaw]’ " (citation omitted). Muldoon v. Planning Bd. of Marblehead, 72 Mass. App. Ct. 372, 375 (2008).
The board and the judge considered the architectural and design features of the proposed home, and its relationship to the character and scale of other buildings, noting that the proposed home will replace "an existing home that is with careful attention to architectural scale and form." The board attached the usual but important condition that the project must be substantially constructed with the architect's plans and the engineering site plans submitted with the application. Three properties would lose "slivers" of views, but "by and large[,] existing views would not be impacted for houses located across and along" the way. The proposed home's decreased size and increased setback would increase light and air circulation between the Epstein and Jacobs properties. The plan benefited other abutters in this respect, provided better views to the public, and served the interest of the town and the public by eradicating a nonconforming use and replacing it with a conforming one. The plan did have the effect of partially reducing Epstein's ocean view from one side of his house, but the board did not act in an arbitrary and capricious manner in determining that the plan adequately minimized the impact to all of the constituencies that the bylaw was designed to protect, and concluding that, on balance, the plan should be approved.
The judge found that the proposed home would decrease the side view corridor by eight and one-half feet. The views along that corridor are already substantially blocked by the garage and carriage house. The windows on the side facade would continue to have ocean views, but those views would be reduced.
Epstein claims that the board and trial court misconstrued the requirements regarding minimization of adverse effects and applicable setbacks, and that Jacobs could have moved the home five feet closer to the road and avoided much of the diminution of the view from the Epstein property. Jacobs claims that Epstein misreads the applicable bylaw, and that the house could not be moved. The judge found it unnecessary to resolve the conflict because, under either interpretation of the setback requirements, the plan was of right and Jacobs did not have to minimize every impact. The judge, who took a view, concluded that the "totality of lost ocean views from the Epstein property is limited or minor." That finding, based on our review of the photographs in the record, is fully supported. As neither the board nor the applicant were required to minimize all possible impacts to the abutter, we are not persuaded by Epstein's argument that because the adverse effects to the Epstein property arguably could be lessened, the board's approval was unreasonable. Zoning is a local matter, and judicial review extends substantial deference to the judgment of local administrative bodies in making decisions such as this. See Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68, 74-75 (2003).
The judge's erroneous finding that a large leafy tree was on the Epstein property as opposed to the Jacobs property, provides no basis to disturb the judge's ultimate decision. The tree was discussed in the context of existing impediments that had an impact on the ocean views from one side of the Epstein home. In this context, whether the tree was located on the Epstein property or the Jacobs property is immaterial to the determination of reasonableness.
Based on the facts as found by the judge, the board's decision granting approval of Jacobs's site plan special permit application is both legally tenable and reasonable.
Jacobs's request for an award of attorney's fees is denied.
Judgment affirmed.