Opinion
No. 12–P–434.
2013-04-11
Gerald M. JENKINS & another v. ZONING BOARD OF APPEALS OF FALMOUTH & another.
By the Court (GRASSO, BROWN & GREEN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Previously, a panel of this court remanded this case to the Superior Court trial judge. Jenkins v. Zoning Bd. of Appeals of Falmouth, 74 Mass.App.Ct. 1109 (2009). After consideration upon remand, the judge affirmed the decision upon remand of the Falmouth zoning board of appeals (ZBA) to grant a special permit to the defendant Gale. The plaintiffs, who are abutters to the locus, have again appealed. We affirm.
Consistent with our previous thoughts, the judge remanded the matter to the ZBA for consideration of three questions: (1) whether the easterly part of the locus was a separate lot for zoning purposes prior to 1981; (2) if so, whether the easterly part of the locus is entitled to grandfathering as a buildable lot pursuant to the Falmouth zoning by-law; and (3) if grandfathering applies, whether the ZBA grants a special permit to build on the easterly part of the locus within fifty feet of the shore of the pond. The ZBA answered the three questions in the affirmative. The trial judge then made new findings and rulings based on the evidence received at the original trial in 2007, together with agreed facts presented at the May, 2011, trial following remand. See Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478, 485–486 (1999). Gale took title to the locus in 1962 with a deed from her grandfather. A 1962 plan bears the following endorsement: “Parcels ‘C,’ ‘D,’ and ‘E’ are not approved and may not be conveyed as such, or built upon.” The locus is parcel E; the plaintiffs' lot is parcel D. There is also a 1963 plan. In his decision after remand, the judge found “the 1963 plan was prepared and approved to facilitate the development of Parcels D and E, and most probably the more remote land to the north and west.” Consistent with this interpretation, a dwelling now occupied by the plaintiffs was built on parcel D pursuant to a building permit issued in 1975. Access to parcel D at that time was over the way at issue. From this, the judge inferred that the way dividing the locus “was deemed by the building inspector to provide adequate means of access for residential purposes in 1975.” More specifically, the judge found that (1) on the 1962 plan, the easterly portion of lot E has an area of 7,670 square feet (exceeding the 7,500 square foot requirement under by-law § 240–66C[2][d] for building a single-family home on a residential C zone lot in existence prior to 1981), and (2) Pinecrest Beach Drive ceased being a mere easement (cart path) and became the functional equivalent of a street prior to January 1, 1981. The judge's findings are not clearly erroneous. See Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115, 119 n .3 (2011). Both the ZBA and the judge concluded, and we agree, that the easterly portion of lot E was rezoned to a residential C use in 1972, existed before January 1, 1981, was not held in common ownership, had over 7,500 square feet, and met the twenty-foot frontage requirement. It was therefore a grandfathered lot.
Our order of remand was based in part on our concern that “[e]ven if the ZBA looked only at the dimensions of the eastern portion of Gale's property as to some aspects of its special permit analysis, it may have reached a different conclusion as to the appropriateness of a special permit had it correctly viewed the eastern portion as a separate lot.”
Contrary to the plaintiffs' contention, § 240–66C(2) is not a grandfathering provision requiring as a precondition that a lot subject to its “protection” have conformed to dimensional requirements in effect at the time the lot was created. Instead, by its terms, the section sets out alternative dimensional regulations applicable to lots that meet its criteria.
As to setback, the ZBA had discretion pursuant to by-law § 240–68D(2) to reduce the setback from bodies of water from fifty feet to thirty feet. There is no showing here that the ZBA exceeded its authority. See Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass.App.Ct. 68, 73 n. 5 (2003).
In sum, the plaintiffs' argument that the judge erred in upholding the issuance of a special permit is without merit.
Judgment dated January 6, 2012, affirmed.