Opinion
ESCV2013-1114
11-05-2015
Victor Wild et al. [1] v. Jeffrey Meserve et al. [2] Opinion No. 132342
FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT ON PLAINTIFFS' COMPLAINT
Elizabeth M. Fahey, Justice
FINDINGS OF FACT
I accept all of the undisputed facts. I accept that the property owner Mr. Meserve sought a special permit to construct a sixteen-foot dormer in his garage. In his April 30, 2013 application to the Zoning Board of Appeals (" ZBA") for the special permit, he did not specify the use of this proposed dormer. The ZBA had no information on the proposed use of this dormer. There was a public hearing on May 28, 2013. Mr. Wild, Ms. Champagne, and her daughter appeared; Henriette, the daughter, and Mr. Wild testified before the ZBA.
The purposes of the Marblehead zoning law ordinance include: " to provide adequate light and air; to prevent overcrowding, of land[; ] . . . to facilitate the adequate provision of . . . open space, and other public requirements; to conserve the value of land and buildings . . ." St. 1975, c. 808, § 2A. Those are the purposes of the Marblehead's Zoning Ordinance that apply to this request for special permit.
Section 200-36 of the Marblehead Zoning Ordinance is entitled " Special permit for use and dimension." There are four other special permits that can be sought but this is clearly the only one that applies in this case. Subsection B of 200-36 provides the standards that govern the award of any special permit. According to Subsection B, " [t]he Board of Appeals shall consider the following standards; (1) [t]he general purpose and intent of this bylaw, and whether, (2) [t]he specific site is an appropriate location for such use or building; and (3) [t]he use as developed will not adversely affect the neighborhood . . ." Section 200-36, ByLaws of the Town of Marblehead, Zoning (1972).
The parties have agreed that Mr. Meserve's purpose was to use the dormer for office space. That is a different use than the purpose of a garage. The Board did not even know the purpose Mr. Meserve was intending to make of the second floor of the garage. The Board made findings without any, let alone adequate, consideration of Mr. Meserve's proposed use.
The defendant submitted some designs with his application, Exhibit 2, as provided in Exhibits 2, 3, 4, and 5. None of those drawing or designs were certified. He also submitted Exhibit 3A which specifically says: " The dwelling is located as shown, note: [l]ocations of abutting buildings are approximate only."
It is not appropriate that the ZBA would accept, and make rulings on, non-certified drawings. Non-certified drawings are basically worthless. In this particular case, Mr. Meserve did not disclose to the ZBA that he had filled in the entire side setback on the left side of the garage, as one looks at the two garage doors. The entire left set back is approximately six and a half feet high and at least twenty-four feet in length, which is completely filled. That space has a roof that consists of plywood on the entire top of the structure, which makes it a " building" in Marblehead. Section 200-7 of the Marblehead Zoning Chapter defines building as " [a] combination of any materials, whether portable or fixed, having a roof, to form a structure for the shelter of persons, animals or property." Section 200-7 defines " roof" to include " an awning or any similar covering whether or not permanent in nature." Marblehead Zoning Code, § 200-7. The definition of the word " building" includes a " structure"; " structure" is not further defined. Id.
That structure/building on the left side of the garage has been there for at least fifteen years. There is no evidence that Mr. Meserve ever obtained a permit for it. That structure/building fills in the entire left yard setback, which decreases the open space on Mr. Meserve's property. There is a blue tarp over the plywood that has roofing shingles on it; that tarp is tied to the eight-foot-high stockade fence in the rear of his property. This sizeable structure/building fills in the entire left yard setback. The entire space under the plywood roof is completely filled.
Facing the Meserve two-bay garage on the right side is some space, which also has a kind of ceiling. The ceiling is open in part, and appears to consist of a roof-like trellis; it is wooden and of the kind of trellis that could be used to grow grapes. The space below this ceiling is also mostly occupied and filled with items. A big sailboat is stored there. There is only enough open space for a walkway, approximately two to three feet in width that goes from the rear of defendant's property to the driveway.
The garage has two bays and both are filled. A sailboat hull and another boat are both inside on the left bay, as one faces the garage. The chassis of two vintage cars, one above the other, are inside the right bay of that garage as one faces the garage. Both bays also contain lots of other stuff. There is nothing wrong with that, except that this arrangement leaves no space in either of the garage bays to park a motor vehicle. The garage is not used for parking of any regularly used motor vehicle. Instead, the driveway is used for parking.
At the time this application was submitted, the Meserves already did not have the required eight-foot rear setback. Mr. Meserve testified that the rear setback is seven feet wide. The absence of the required eight-foot rear setback should have at least been considered by the ZBA. When the ZBA takes away additional open space, and when there is already less than the required open space, the ZBA ought to at least account for that.
Behind the garage and in the rear of his property, Mr. Meserve has, with the authority of the ZBA, at least a ten-foot long by five-foot deep shed that is basically attached to the rear wall of the garage. Access to that fifty-square-foot shed is from both the interior of the garage, and by the narrow walkway to the right of the garage. That shed is affixed to a second shed for which Mr. Meserve has no permit. See Exhibits 28, 24, 24A and B, an aerial view of the so-called " real yard, " 24E, 24D and also 24C.
The second shed is depicted in Exhibit 24C from the front and side. It is next to a Rubber Maid storage container that is approximately six feet tall, five feet in width and approximately 18-24 inches deep. This second shed is between the permitted ten by five-foot shed and the Rubber Maid storage container. There is no permit for the second shed, which also has a roof and appears to be made of plywood and two by fours. That shed has pieces of plywood on the front, both as a fascia board and going down to the ground. That shed stores at least an architecturally decorative window. There is basically very limited open space behind Mr. Meserve's home, of which the ZBA had no knowledge.
There is no evidence that any of the ZBA members went to see the site. It may be good practice to do so, but no evidence was offered that they did so in this case. Mr. Meserve's application may have appeared to the ZBA to be a de minimus proposed change, since it was presented as a sixteen-foot dormer on an already existing garage. The ZBA paid almost no attention to it. They did not want to hear from either Mr. Wild or Ms. Champagne's daughter. The hearing, including their vote, took ten minutes or less.
The court's site view and the photographs both show that there is very little open space between the plaintiffs' homes and the structures on Mr. Meserve's property. There is no open space of any consequence on the Meserve property, which abuts both plaintiffs' properties. The Meserves have an eight-foot fence at the rear of their property, the portion of the Meserve property that borders the properties of both plaintiffs. There is at most a foot approximately eighteen inches of open space between the Meserve eight-foot fence and the beginning of his two sheds and one storage container located immediately behind the rear of the Meserve garage.
I accept that the defendant's two-family house is used as a single-family, which is not a problem, but anyone parking regularly at that house uses the driveway. Therefore, the driveway needs to be discounted when open space is considered. Maneuvering room to turn around or back out also needs to be deducted and not counted as " open space." Without any inspection, the ZBA accepted the application that Mr. Meserve signed. I do not accept that the open space numbers listed on defendant's application are accurate. I accept the testimony of both plaintiffs' experts. McElroy and Nielson, on the issue of the amount of open space on defendant's property.
When Mr. Meserve filed his application at Town Hall, Mr. Ivy, a building department employee, filled in the amount of open space on his property. The basis of the numbers he used was not clear. The numbers on page three of Exhibit 2 were filled in for the Meserve residence by Mr. Ivy, but are not accurate.
I accept the plaintiffs' proposed findings fourteen, fifteen and sixteen. Since he built the garage after obtaining a special permit, Mr. Meserve has built structures to the rear and side of his garage, both in violation of the Marblehead rear and side lot setbacks, which was unknown to the ZBA when they voted on the application at issue here.
I accept that those structural items, (1) the " building" on the left, as I have determined to meet the " building" definition of the zoning bylaws, and (2) the structure, the second rear shed, which is also a " building" under that zoning bylaw, do not appear on any of the pages of unstamped, uncertified documents that Mr. Meserve submitted. There is no evidence that the ZBA ever inquired as to the accuracy of those unstamped documents. Both " buildings, " the one on the left outside the garage and the second one at the rear of the garage, do not appear on the single page purporting to show the existing and proposed footprint of the exterior of the roof of the garage. That footprint is also unstamped, prepared by an unidentified person, and submitted by Mr. Meserve in support of his application for the special permit. When it voted, the ZBA did not know about these two additional buildings on the Meserve property.
Since the dormer will decrease open space by at least eighty square feet, it has to at least be offset by eighty square feet of additional open space. The Board did not consider that. Mr. Meserve's numbers, which the ZBA accepted, are wrong because they have not accounted for the open area, by subtraction of the driveway and maneuvering area of the driveway which is required to be considered.
Exhibit 12, the notice and decision of the ZBA, contains a very conclusory paragraph at the top of page two of their three-and-a-half-page decision, which is basically verbatim what they wrote in the middle of page two of Exhibit 18. This is the ZBA's boilerplate language. The ZBA members assumed, based on the size of the sixteen-foot proposed dormer, that any impact would be de minimus but they did not have any, let alone sufficient, information as to Mr. Meserve's proposed use to make that determination. The ZBA did not have any factual basis in this case for its conclusions, because the ZBA had no knowledge of the intended use of the dormer as an office by Mr. Meserve. So how they could find, as they did on Exhibit 12, that " . . . neither the new addition nor the use of the building will adversely affect the neighborhood" ? Without knowing the proposed use, the ZBA had no basis to make this finding.
The ZBA did not consider the loss of privacy or how the dormer would affect the light or shadowing on the plaintiffs' properties. No showing was made that the ZBA considered those issues.
Mr. Meserve has a history of going before the ZBA. He did so in 2004 and 2005, with respect to Exhibits 15 and 16; that was the result of a complaint that had been filed against him in 2003, concerning the ten by fifteen shed/building/structure at the rear of the Meserve garage. He was before the ZBA also when he applied to build a garage on the footing (large enough for a two-bay garage) that he had built without any permit.
All property owners, especially homeowners, appreciate light, sunlight and privacy. Both plaintiffs' homes front on Russell Street The south sides of both plaintiffs' properties face the defendant's property. The portion of the Champagne home that borders the Meserve property is, on the first floor, the kitchen and the dining room; on the second floor, Ms. Champagne's master bedroom and bathroom; and on the third floor, a guest bedroom and bathroom. These areas of her home face the defendant's garage and rear property. Each of those rooms has at least one window. The dining room, master bedroom and guest bedroom each have two windows. The kitchen and each bathroom have one window.
The portion of the Wilds' first floor that faces the defendant's property is their deck, kitchen, and family room; on the second floor it is their son's bathroom and bedroom; on the third floor it is their master bedroom and bathroom. The defendant's proposed dormer includes four windows. Those four windows will affect the plaintiffs' privacy, both the Wilds and the Champagnes. The defendant's proposed dormer, with four windows. will increase the shading and lack of sunlight on both plaintiffs' property.
Mr. Wild took photographs from inside his kitchen on two different dates. On November 19, 2014, he stood, inside, directly in front of the kitchen window at 9:45 a.m.; on January 21, 2015, he stood, also inside, one-foot back from the kitchen window at 9:45 a.m. Photographs were taken on each of those dates and times. Those photographs were transferred to a disc and a video was made of it that became the sun study that Mr. Nielson created according to a computer program that is reliable and accepted by architects in the field of designing homes. Such sun studies are relied on and accepted by architects in the field of designing homes, such as Mr. Nielson, in order to determine the effect of sun and shadow on the homes.
I accept that there is a decrease in the amount of open space on the Meserve property such that the driveway and maneuvering room area of 1, 760 square feet has to be subtracted from the existing open area and that the two " buildings, " both un-permitted, one at the rear of the Meserve property next to the permitted shed and one on the left of the garage (filling that entire setback area of 156 feet), also have to be subtracted in order to reach an accurate open area.
As adding a second floor/dormer to the existing garage is, by itself, unlikely to cause this loss of open space, I accept that when permitting the garage, the ZBA or approving entity failed to realize that the driveway would be used for parking and turning.
I accept Mr. McElroy's finding that the open area decreased, not " de minimus" as according to Mr. Meserve's page three, but to 1, 256 square feet. That is not a de minimus reduction in the open space. Mr. Meserve's property was already a non-conforming property and the addition of this dormer onto the property, as it exists currently and has existed for at least the past fifteen years, is an improper reduction of the required open area for no valid purpose.
In addition to " lack of compliance with the open space requirements of the [Z]oning [O]rdinance, " I also accept Mr. Nielson's testimony that the addition of the dormer will have an adverse impact on both the Wilds' and the Champagnes' use of their properties. The dormer, if built, will allow less sunlight into the plaintiffs' homes, will allow less sunlight on the Wilds' deck and in the plaintiffs' yards, will allow less indirect natural light into their homes, and will also likely increase the development of mold inside their homes. The proposed dormer will impact the privacy of the Champagnes' use of the bedrooms and bathrooms because of the presence of four windows on the second floor dormer area of the Meserve property which will face at least a portion of the second and third floor windows on the Champagnes' property. The proposed dormer will also adversely impact the Wilds' privacy in the use of their deck and yard, especially since they have a growing child, as well as affect the use of their family room, and their son's and their third floor bedrooms and baths.
I also accept the testimony of the plaintiffs' real estate appraiser, Mr. Oszakowski, that the sales price of both plaintiffs' properties will decrease in the future. Based on less natural light being present inside and outside of their homes, I accept the fair market values of plaintiffs' properties will decrease by three to five percent of the prices of comparable properties.
RULINGS OF LAW
Victor Wild, Caroline Juon Wild, Joan Compagne, and Henriette Compagne (" plaintiffs") filed this complaint with the Superior Court to appeal a decision by the Town of Marblehead, Massachusetts' Zoning Board of Appeals (" ZBA"). The plaintiffs assert that ZBA's decision to grant Jeffrey Meserve (" Mr. Meserve") a special permit to construct a shed dormer on the roof of an existing, non-conforming garage was arbitrary, capricious, unreasonable, violated due process, exceeded ZBA's authority, was based on legally and factually untenable grounds, and was wrong as a matter of law. Plaintiffs further argue that this special permit will impose on them a substantial harm. Mr. Meserve contends that the proposed construction met all of the criteria of Section 200-36B, and therefore, ZBA based its decision on legally tenable grounds.
I. Standard of Review
Judicial review of a zoning board's decision under G.L.c. 40A, § 17 requires a " combination of de novo and deferential analyses." Shirley Wayside Ltd. P'ship v. Board of Appeals, 461 Mass. 469, 474, 961 N.E.2d 1055 (2012), citing Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Bd. of Appeal of Billerica, 454 Mass. 374, 381, 909 N.E.2d 1161 (2009). The trial judge first conducts a de novo review of the facts without giving evidentiary weight to the board's findings, and then " reviews with deference the board's legal conclusions[.]" E& J Props., LLC v. Medas, 464 Mass. 1018, 1019, 985 N.E.2d 111 (2013) (internal citations and quotations omitted). During this process, the court determines whether the board utilized appropriate criteria and standards to reach its conclusions of law. Shirley Wayside Ltd. P'ship, 461 Mass. at 474. The board retains discretionary authority to deny or grant special permits. Buccaneer Development, Inc. v. Zoning Board of Appeals of Lenox, 87 Mass.App.Ct. 871, 874, 35 N.E.3d 737 (2015). However, the court will not defer to incorrect interpretations of the board's own bylaws, decisions based on legally untenable ground, or those that are unreasonable, whimsical, capricious or arbitrary. E& J Props., LLC, 464 Mass. at 1019; Shirley Wayside Ltd. P'ship, 461 Mass. at 475.
Courts review differently decisions that grant special permits as opposed to those decisions that deny them. Britton v. Zoning Bd. of Appeals, 59 Mass.App.Ct. 68, 73, n.5, 794 N.E.2d 1198 (2003); Vazza Properties, Inc. v. City Council of Woburn, 1 Mass.App.Ct. 308, 311, 296 N.E.2d 220 (1973). " [T]he board, when granting a special permit, must set forth clearly the reason or reasons for its decisions that the applicable statutory and by-law standards have been met." Josephs v. Board of Appeals, 362 Mass. 290, 295, 285 N.E.2d 436 (1972) (internal quotations omitted). For example, the zoning board must make an " affirmative finding as to the existence of each condition of the statute or bylaw." Britton, 59 Mass.App.Ct. at 73, n.5. Moreover, in order for a court to affirm the granting of a special permit, the court must also independently find that the proposed construction meets the pertinent standards. Britton, 59 Mass.App.Ct. at 73. n.5; Vazza Properties, Inc., 1 Mass.App.Ct. at 311. " When a decision contains conclusions that do nothing more than repeat regulatory phrases, and are unsupported by any facts in the record, we are constrained to conclude that the decision is unreasonable, whimsical, capricious or arbitrary, and therefore invalid." Wendy's Old Fashioned Hamburgers of N.Y., Inc., 454 Mass. at 386 (internal quotations omitted); Grenier v. Board of Selectmen, 80 Mass.App.Ct. 460, 466, 954 N.E.2d 44 (2011).
II. Analysis
In the present case, there is no evidence that the ZBA considered the full and accurate condition of Mr. Meserve's property or the impact his proposed changes would have on his neighbors. To the contrary, the ZBA failed to visit and investigate the property at issue, deliberate comprehensively, or even make its decision with the intended use of the dormer in mind. As a result, the ZBA's decision is not supported by the facts in this record. See Wendy's Old Fashioned Hamburgers of N.Y., Inc., 454 Mass. at 386.
Furthermore, this court cannot, on the present record, find that Mr. Merserve's proposed construction meets the standards set out in Subsection B of § 200-36. See Section 200-36, Bylaws of the Town of Marblehead, Zoning (1972). That standard requires, in part, that the proposed use not adversely affect the neighborhood. Id. However, the facts of the record support the conclusion that granting the special permit would, indeed, negatively affect the plaintiffs. As this court has found, the dormer would reduce the plaintiffs' sunlight and privacy, as well as likely decrease the value of the plaintiffs' homes. As a result, since this court cannot make an affirmative finding that the proposed construction meets each condition of § 200-36, Subsection B, this court cannot affirm the ZBA's decision to grant the special permit. See Britton, 59 Mass.App.Ct at 73, n.5; Vazza Properties, Inc., 1 Mass.App.Ct. at 311. Therefore, this court reverses the ZBA's decision to grant Mr. Meserve a special permit.
ORDER OF JUDGMENT
It is therefore ORDERED that judgment enter for the plaintiffs and the decision of the Town of Marblehead, Massachusetts' Zoning Board of Appeals is REVERSED .