Eastern Point, LLC v. Zoning Board of Appeals

907 N.E.2d 1151, 74 Mass. App. Ct. 481, 2009 Mass. App. LEXIS 841
CourtMassachusetts Appeals Court
DecidedJune 24, 2009
DocketNo. 07-P-1766
StatusPublished
Cited by6 cases

This text of 907 N.E.2d 1151 (Eastern Point, LLC v. Zoning Board of Appeals) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Eastern Point, LLC v. Zoning Board of Appeals, 907 N.E.2d 1151, 74 Mass. App. Ct. 481, 2009 Mass. App. LEXIS 841 (Mass. Ct. App. 2009).

Opinions

Sikora, J.

Eastern Point, LLC (plaintiff), brought suit in Superior Court seeking reversal of a decision of the zoning board of appeals of Gloucester (board). That decision permitted Virgil Martinonis (defendant) to reconstruct on his property a house that had been destroyed by fire and to do so without authority of either a variance or a special permit. In the event of catastrophic destruction of a prior nonconforming residence, a [482]*482provision of the Gloucester zoning ordinance (ordinance) allows reconstruction of the house “in substantially the form” of the destroyed house. A judge of the Superior Court agreed with the board’s interpretation of that provision and affirmed the board’s decision. The plaintiff appeals from the judge’s decision and claims that the defendant did not rebuild in substantially the form of the old house. We affirm the Superior Court judge’s decision.

1. Background. Eastern Point is a peninsular Gloucester neighborhood bounded on the north and northwest by Gloucester’s outer harbor and on the south and east by the Atlantic Ocean. Eastern Point Boulevard runs along the side of the Point facing the harbor. The majority of the homes on the boulevard are large, estate-type structures with substantial yards. The plaintiff’s large, wooden home sits at 76 Eastern Point Boulevard on the landward side of the street. The defendant’s house sits across the street, on the waterfront.

A large Victorian home stood on the defendant’s property from the nineteenth century until a fire completely destroyed it in 2001. That home predated the adoption of the ordinance. After enactment of the ordinance, the home became a prior nonconforming structure for its failure to conform to the maximum height requirement as well as setback requirements for front and side yards. The ordinance sets the maximum building height at thirty feet, the minimum front yard setback at forty feet, and the minimum side yard setback at thirty feet.

a. The board’s proceedings. Soon after the fire, the defendant sought to build a replacement home. He hired an architect and obtained plans for construction. Like the former structure, the planned new home would violate maximum height and front and side yard setback requirements. The defendant applied to the board for a variance. The board reviewed the plans and conducted a hearing at which the plaintiff appeared in opposition. At the conclusion of that process, the board determined that the defendant did not need a variance because he could construct the new house as a matter of right pursuant to § 2.4.5 of the ordinance. That provision states: “In the case of destruction or damage by fire or other catastrophe, a building or structure existing at the time of the adoption of this Ordinance may be rebuilt in substantially the form as it was at the time of the destruction or [483]*483damage, or in any form if within applicable set-back requirements and not larger than previously.” The plaintiff subsequently brought suit in Superior Court, pursuant to G. L. c. 40A, § 17,2 to appeal the board’s decision.

While that action was pending, the defendant began construction of the new home. In an effort to block the construction, the plaintiff sought injunctive relief in the Superior Court. A Superior Court judge denied the request for relief but warned the defendant that continued construction ran the risk of a later order to remove any structure found to violate the ordinance. In addition, the judge directed the board to make further findings whether the new house would be more nonconforming than the old one and whether it would be substantially more detrimental to the neighborhood. Both G. L. c. 40A, § 6, and § 2.4.3 of the ordinance require such findings in certain circumstances.3

[484]*484After conducting further proceedings, the board reaffirmed its earlier determination that construction of the new home was permissible as a matter of right. It again consulted § 2.4.5 of the ordinance and determined that the planned new house would be “in substantially the form” of the old house. Further, the board found, as required by G. L. c. 40A, § 6, and § 2.4.3 of the ordinance, that the new house would not increase the nonconforming nature of the old house and would not be substantially more detrimental to the neighborhood. The case proceeded to trial; by that time construction of the new house was complete.

b. The old house. In Victorian style, the former house had featured a steeply pitched roof and numerous gables. The front of the house was 105 feet long at its base. Its highest ridgeline was approximately thirty-six feet from the front grade and ran for almost fifty-two feet. The center part of the house contained three stories of living space, and the house had single story wings on either end. A one-story library jutted out from the right center of the house toward the street and was approximately thirty-seven feet long and fourteen feet wide. The front setback was ten feet and the encroachment consisted solely of the library. On the right side of the house, the setback was approximately twenty feet and consisted of a wing extending for approximately sixteen feet along its side. Finally, the old house contained 9,611 square feet of space, 5,917 square feet of which was living space.

c. The new house. The new house has a contemporary design and is made of brick. It appears “fuller” or “fatter” than the old house, and the trial judge described it as having “a sort of Mediterranean flair.” It occupies much of the same footprint as the old house, but with a deeper front setback. The front of the house is approximately ninety-six feet long at its base. Its highest ridgeline is approximately thirty-four feet from the front grade and runs for eighteen feet. The center part of the house is two stories, and like the old house, the new house drops down to a single story at either end. A garage protrudes from the front right of the house toward the street. The house’s front setback is approximately thirty feet, and the encroachment consists of the front of the garage, which runs for twenty-four feet. The right side yard setback is approximately twenty-two feet, and the encroachment consists of the side of the garage, which runs [485]*485for approximately thirty-one feet. The new house contains 14,769 square feet of space, with 9,569 square feet of living space, so that the over-all volume of the new house is fifty-four percent greater than that of the old house.

d. The trial judge’s decision. After the four-day bench trial, the Superior Court judge dictated his detailed decision from the bench. He carried out de novo fact finding, as G. L. c. 40A, § 17, requires. See Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349, 355 (2001). He deferred to the board’s reasoning, however, because he determined that it was not “arbitrary, capricious, or an abuse of discretion.” Thus, he affirmed the board’s decision that the new house was “rebuilt in substantially the form” of the old house for the purpose of § 2.4.5 of the ordinance. The judge determined that “the essential goals of the zoning laws should be maintained” and that the board’s decision “maintain[ed] those goals.”

In reaching his conclusion, he noted the following. The new house is “nearly the same height as the original,” but the new house’s over-all impact on the front elevation “is

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Bluebook (online)
907 N.E.2d 1151, 74 Mass. App. Ct. 481, 2009 Mass. App. LEXIS 841, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eastern-point-llc-v-zoning-board-of-appeals-massappct-2009.