NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-1350
STEVEN P. ROSENTHAL, trustee,1 & another2
vs.
PLANNING BOARD OF MARBLEHEAD & others3 (and a consolidated case4).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In these consolidated zoning cases, the parties limited the
principal issue at trial to whether parcels of property owned or
controlled by Stephen R. Petersen and Gillian Lieberman on
1 Of the Joan F. Rosenthal Revocable Trust.
2Joan F. Rosenthal, trustee of the Joan F. Rosenthal Revocable Trust. Michael Murphy and Diane P. Phillips, as trustees of the Ten Bartlett Street Condominium Trust, were plaintiffs in the Land Court, but are not parties to this appeal.
3 Stephen R. Petersen and Gillian Lieberman.
4Steven P. Rosenthal, trustee of the Joan F. Rosenthal Revocable Trust, & another vs. Zoning Board of Appeals of Marblehead & others. Michael Murphy and Diane P. Phillips, trustees of the Ten Bartlett Street Condominium Trust, were plaintiffs in the Land Court, but are not parties to this appeal. Bartlett Court in Marblehead should be considered to have merged
for the purposes of zoning because of inadequate frontage for
separate lots. After a trial, a judge of the Land Court
concluded that the properties have not merged; neighbors Joan F.
Rosenthal and Steven P. Rosenthal, as trustees of the Joan F.
Rosenthal Revocable Trust (trustees), appeal. We affirm.
Background. The Rosenthals, and Petersen and Lieberman,
are both married couples who separately own in varying
capacities several parcels of property situated on opposite
sides of a private way, Bartlett Court, and adjacent to or near
the Atlantic Ocean in Marblehead.5 We are primarily interested
in lot B (also known as 9 Bartlett Court); lot C (also known as
11 Bartlett Court); and lot 1 (which the judge determined is an
extension of Bartlett Court that has existed since the early
1900s), all as shown on a plan dated December 14, 2009, and
endorsed by the planning board as approval under the subdivision
control law not required (ANR) on February 9, 2010 (2010 ANR
plan). The 2010 ANR plan depicts lot B and lot C as sharing a
5 We need not detail the exact division of ownership of Petersen's and Lieberman's parcels because, while the parcels may be in separate legal ownership, the parties have stipulated that at all relevant times, all of their parcels have been under "common control," such that Petersen and Lieberman do not rely on their separate ownership of individual parcels to argue that the concept of merger does not apply. Thus, we refer to Petersen and Lieberman, collectively, as the owners of the relevant parcels.
2 common boundary; lot C is improved with a large home and lot B
is improved with a pool house and a pool. Lot B is shown on the
2010 ANR plan as fronting on Bartlett Court for one hundred feet
and lot C is shown as fronting on Bartlett Court and on "Lot 1"
-- the Bartlett Court extension -- for a total distance of
166.57 feet. The deed from Petersen's and Lieberman's
predecessors refers to the 2010 ANR plan.
The trustees own the property fronting on the opposite side
of Bartlett Court and lot 1, known as 40 Bartlett Court, also
shown on the 2010 ANR plan.6 It, too, is improved with a large
home and garage.
1. Bartlett Court and development of properties. The
judge found that Bartlett Court was first shown on a plan in
1906 and by 1954 the trustees' home and the home on 11 Bartlett
Court now owned by Petersen existed at the end of the way. For
decades, Bartlett Court has been paved starting from its
intersection with Spray Avenue and extending toward the ocean;
6 Indeed, the judge noted that if the extension does not provide sufficient frontage, the trustees' property would also become nonconforming with frontage of less than the required one hundred feet on Bartlett Court. In their reply brief, they contend that the assertion of adequate frontage in a special permit application was mere error. Here, they attach a more sinister motive for the same explanation as to the error on the 2021 ANR plan. While we decide the case on other grounds, we note that it may well be that "the plaintiffs' position is so intrinsically inequitable that it should not prevail." Hogan v. Hayes, 19 Mass. App. Ct. 399, 404 (1985).
3 an unpaved portion continued toward the ocean -- the length of
which changed from time to time. By 1966, a gate had been
installed near the end of the paved section, but the unpaved
section continued past the gate. The judge found that Bartlett
Court extends from Spray Avenue for 221.4 feet to a gate, beyond
which mesh pavers7 extend on the roadway for an additional
distance of 59.5 feet. We refer to the section of Bartlett
Court beyond the gate as Bartlett Court extension or the
extension, and as noted above, the judge found that lot 1 on the
2010 ANR plan is the Bartlett Court extension.8
In 2016, Petersen and Lieberman obtained a building permit
allowing them to improve a pool house on lot B to create a
single-family residence, which Petersen and Lieberman since have
used as a guest house. So far as the record reveals, no issues
as to lot B's or lot C's frontage were raised at that time.
In 2021, the planning board endorsed a newly drafted ANR
plan submitted by Peterson and Lieberman that changed the common
boundary of lot B and lot C to eliminate a side-yard
7 The judge found that the mesh pavers are designed to "accommodate heavy vehicle loadings or passenger type of loadings in areas where there's a desire to minimize impervious area."
8 Lot 1 first appeared on the 2010 ANR plan which was created by Lieberman's and Petersen's predecessor. Lot 1 serves as a portion of the boundary of lot 2 on the plan; lot 2, as noted on the 2010 ANR plan, was later transferred to Steven P. Rosenthal, as trustee of 40 Bartlett Street Realty Trust.
4 nonconformity on lot B but did not alter the frontage for either
lot (2021 ANR plan). Lot B was relabeled lot B2 (9 Bartlett
Court) and lot C was relabeled lot C1 (11 Bartlett Court).
Nonetheless, the 2021 ANR plan, on its face, shows lot B2 with
frontage that complies with the Marblehead zoning bylaw minimum
requirement of one hundred feet. However, the Bartlett Court
extension is no longer separately labeled as lot 1, but is shown
on the 2021 ANR plan as part of lot C1 -- 11 Bartlett Court.
Thus, it is not clear from the 2021 ANR plan that Bartlett Court
extension continues on lot C1.
Turning to the project at issue before us, in 2021,
Petersen and Lieberman applied to the planning board for a site
plan special permit that would allow them to add a second-floor
addition to the existing residential structure on lot B2 (9
Bartlett Court) as depicted on the 2021 ANR plan. It is
undisputed that the town prohibits more than one principal
building on a lot, and that the town requires each lot in the
zoning district in which the properties are located to have one
hundred feet of frontage on a street. The trustees challenged
the application, contending that lot C1 has insufficient
frontage as shown on the 2021 ANR plan and, therefore, lots B2
and C1 had merged for zoning purposes. They further contended
that where a large home already exists on lot C1 and the town
5 zoning bylaw prohibits more than one primary structure on a lot,
a second primary structure on lot B2 is prohibited.9
2. Local decisions and Land Court decisions. The planning
board issued a decision noting that it heard comments regarding
"frontage and dimensional issues," but concluded that 9 Bartlett
Court had sufficient frontage and that the plan met the zoning
bylaw's requirements for a site plan special permit.
Thereafter, the trustees filed an appeal in the Land Court
pursuant to G. L. c. 40A, § 17, and also submitted a request to
the building commissioner to enforce the bylaw. The building
commissioner issued a decision concluding that both 9 Bartlett
Court and 11 Bartlett Court have conforming frontage and that
the parcels had not merged despite their common ownership. The
zoning board of appeals affirmed the building commissioner's
decision. The board found the paved portion of Bartlett Court
provides 43.2 feet of frontage for 11 Bartlett Court and that
Bartlett Court extension provides eighty-five feet of frontage,
of which fifty-three feet10 have been improved with mesh pavers.
9 The judge and the parties seem to accept as true that the proposed changes to the "guest house" on lot B would create two principal structures when considered with the home on lot C1. Finding that the lots had not merged, the board of appeals did not reach that issue and it has not been raised on appeal.
10The judge found that 59.5 feet were improved with mesh pavers while the board found that fifty-three feet had been improved with pavers and thirty-two feet were comprised of short
6 The board of appeals further found that the portions of Bartlett
Court providing frontage to 11 Bartlett Court have sufficient
width, suitable grades, and adequate construction for the needs
of the abutting land. Finally, the board of appeals found that
"[t]here has been no merger of the two lots despite any common
ownership"; the presence of a "gate is not relevant to zoning
compliance"; and the 2021 ANR plan "did not operate to eliminate
any amount of frontage used by 11 Bartlett, and did not render
11 Bartlett out of compliance with the frontage requirements of
the Bylaw."
The trustees again appealed to the Land Court from the
decision of the board of appeals and both appeals were
consolidated in the Land Court. After a trial, which included a
view, the Land Court judge concluded that Bartlett Court,
including the extension, constitutes a street as defined in the
local zoning bylaw as it was in existence when the subdivision
control law was adopted, that both 9 Bartlett Court and 11
Bartlett Court have at least one hundred feet of frontage on a
street, and that the lots had not merged. The judge considered
extrinsic evidence including historic and current maps and
plans, along with testimony indicating that Bartlett Court
extension has long been in existence, was in existence when the
grass. The difference is not material to the arguments on appeal.
7 subdivision control law was adopted in Marblehead in 1997, has
been improved with mesh pavers abutting lot C, and is adequate
for service to the single-family home on lot C. Further, the
judge implicitly credited evidence by the drafter of the 2021
ANR plan explaining her error in failing to show the Bartlett
Court extension on the 2021 ANR plan. The parties having
conceded that there was no other legal infirmity, the judge
affirmed the planning board's decision to grant the special
permit and the board of appeals' decision affirming the building
commissioner's denial of the trustees' zoning enforcement
request. The judge rejected the trustees' argument that the
failure to depict the full length of Bartlett Court on the 2021
ANR plan compelled the conclusion that the lots had merged.
Discussion. 1. Standard of review. On appellate review
of a local board's decision to grant a special permit, "the
judge's findings of fact will not be set aside unless they are
clearly erroneous or there is no evidence to support them. We
review the judge's determinations of law, including
interpretations of zoning bylaws, de novo" (citation omitted).
Fish v. Accidental Auto Body, Inc., 95 Mass. App. Ct. 355, 362
(2019). The same is true for appellate review of the judge's
decision reviewing the board of appeals' decision upholding the
building commissioner's zoning enforcement decision. See
Drummey v. Falmouth, 87 Mass. App. Ct. 127, 128 (2015) (on
8 appeal of Superior Court's decision reviewing building
commissioner's decision, we review judge's determinations of law
de novo); Oakham Sand & Gravel Corp. v. Oakham, 54 Mass. App.
Ct. 80, 84 (2002) (on appeal of board of appeals' decision
affirming town's zoning enforcement officer's cease and desist
order, our duty is to accept trial judge's findings of fact
unless clearly erroneous). "If the [special permit granting
authority's] decision is supported by the facts found by the
judge, it 'may be disturbed only if it is based on a legally
untenable ground, or is unreasonable, whimsical, capricious or
arbitrary'" (citation omitted). Fish, supra. Moreover, to the
extent that either board's decision is based on the local bylaw,
"[a] reasonable interpretation of its own zoning by-law by a
local board . . . is entitled to deference." Livoli v. Board of
Appeals of Southborough, 42 Mass. App. Ct. 921, 922 (1997).
2. Merger doctrine. "It is well settled that '[a]djacent
lots in common ownership will normally be treated as a single
lot for zoning purposes so as to minimize nonconformities.'"
Carabetta v. Board of Appeals of Truro, 73 Mass. App. Ct. 266,
268 (2008), quoting Preston v. Board of Appeals of Hull, 51
Mass. App. Ct. 236, 238 (2001). Known as the "merger doctrine,"
in answering the question whether it applies, courts ignore "the
manner in which the components of a total given area have been
assembled and concentrates instead on the question of whether
9 the sum of the components meets the requirements of the by-law"
(citation omitted). Carabetta, supra at 270. Thus, the
determination of whether the merger doctrine applies requires
consideration of what actually exists on the ground as well as
other pertinent circumstances, such as the historical use of the
road and current plans, among other considerations. "As the
moniker suggests, an ANR endorsement expresses no view of town
authorities as to the zoning compliance of any lot proposed by a
subdivision plan." Bruno v. Zoning Bd. of Appeals of Tisbury,
93 Mass. App. Ct. 48, 50 n.4 (2018). See Palitz v. Zoning Bd.
of Appeals of Tisbury, 470 Mass. 795, 807 (2015), quoting
Cornell v. Board of Appeals of Dracut, 453 Mass. 888, 892 (2009)
("ANR indorsement serves merely to permit the plan to be
recorded . . . and is not an attestation of compliance with
zoning requirements").
Here, based on findings of fact that largely have not been
challenged, the judge concluded that lot 1 as depicted on the
2010 ANR plan is an extension of Bartlett Court and constitutes
a "street" for purposes of the local zoning bylaw because it was
in existence on the date the subdivision control law was
adopted. The judge further concluded that Bartlett Court and
its extension, lot 1, provides at least one hundred feet of
sufficient frontage for both lots B2 and C1. The trustees
insist, however, that because Bartlett Court extension is not
10 labeled as a "street"11 on the 2021 ANR plan, neither it nor lot
1 can serve as frontage12 for lot C1 (11 Bartlett Court) -- that
it cannot be both a "lot"13 and a "street" as those terms are
defined in the town's zoning bylaw.14
At the outset, we pause to note that this is not an appeal
challenging whether the planning board properly endorsed the
2021 ANR plan or any other ANR plan;15 it is an appeal from a
11 "Street" is defined in the bylaw, as relevant here, as a
"way in existence when the Subdivision Control Law became effective, having sufficient width and suitable grades, and adequate construction to provide for the needs of vehicular traffic in relation to the proposed use of 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."
12The term "Lot frontage" is defined as "[t]hat part of a lot which has an uninterrupted parcel boundary line abutting on a constructed street."
13"Lot" is defined as "[a] single area of land defined by metes, bounds, or boundary lines in a duly recorded deed or shown on a duly recorded plan."
14The trustees do not cite to any authority in support of their contention that a street cannot also be a lot. Indeed, we note that with regard to registered land, "[n]o new certificate of title may issue for the fee in a street unless a plan has been filed showing the street as a lot." Guideline 24 of the Land Court Guidelines on Registered Land (Feb. 27, 2009).
15In their reply brief, the trustees take the somewhat conflicting positions that an ANR plan is authoritative with regard to frontage, see Perry v. Planning Bd. of Nantucket, 15 Mass. App. Ct. 144, 156 (1983), but notwithstanding that this is not an appeal from the ANR endorsement of the 2021 plan, ask us to ignore the inherent determination that all of the lots shown on the 2021 ANR plan have adequate frontage on a street.
11 special permit granted for 9 Bartlett Court (lot B2) and the
related zoning enforcement decision. On appeal, the trustees do
not challenge that 9 Bartlett Court has the requisite frontage
on a street, but rather argue that both zoning decisions were
wrong because 9 Bartlett Court had merged with the adjacent 11
Bartlett Court because 11 Bartlett Court had insufficient
frontage. It is unclear, therefore, that when applying for the
special permit for 9 Bartlett Court, Petersen and Lieberman were
required to anticipate the trustees' argument and submit plans
that demonstrated 11 Bartlett Court's compliance with the zoning
bylaw. In any event, while the 2021 ANR plan may indeed be
ambiguous with respect to whether 11 Bartlett Court has
sufficient frontage, the judge made detailed findings on this
issue.
The trustees have not shown that it was error for the judge
to consider extrinsic evidence -- evidence outside the
application materials -- of the existence of frontage on a
street. See Vetter v. Zoning Bd. of Appeal of Attleboro, 330
Mass. 628, 630 (1953) (rejecting construction of merger
provision of local ordinance where "plaintiff's argument would
require us to construe the word lot . . . as referring to a lot
which corresponded with some 'lot' shown on a plan in the
assessors' office rather than to the lot as it actually existed
upon the surface of the earth. We find nothing in this record
12 to suggest that lots under the ordinance were to be determined
by assessors' plans or assessments or according to sources of
title"). Given that the issue of the technical accuracy of the
2021 ANR plan was not before the judge, we similarly conclude
that the judge properly considered extrinsic evidence on whether
lot B2 and lot C1 each currently in fact have a minimum of one
hundred feet of frontage on Bartlett Court or the extension --
regardless of the ambiguity on the 2021 ANR plan.16
The judge noted that the drafter of the 2021 ANR plan
admitted to having erred by not depicting Bartlett Court as
extending beyond the end of the finished pavement. The judge
also relied on a 2024 plan by the same surveyor showing the
length, width, and composition of Bartlett Court and the
extension as they exist on the ground today. In addition, the
judge considered the history of Bartlett Court extension. The
judge found that aerial photographs from 1954, 1966, 1981, and
1990 show a dirt or gravel road extending from Spray Avenue to a
point past the residence on lot C. The extension is also shown
on a 2000 plan in the same location and Steven Rosenthal
testified that it existed and was made of dirt or gravel. The
16 To the extent the trustees contend that the ANR plan determines zoning compliance, our cases have concluded otherwise. See Bruno, 93 Mass. App. Ct. at 53 (where ANR plan created nonconforming lots, conveyance triggered enforcement claim).
13 judge further found that the town adopted the subdivision
control law in 1997, and, relying particularly on the evidence
of its existence around 2000, concluded that the Bartlett Court
extension existed in 1997 and constituted a "street" under the
zoning bylaw. We discern no error in the judge's analysis and
conclusion.
Having concluded that Bartlett Court extension was a street
adopted, the judge considered whether, as the board of appeals
concluded, it has "sufficient width and suitable grades, and
adequate construction to provide for the needs of vehicular
traffic in relation to the proposed use of the land abutting
thereon and served thereby, and for the installation of
municipal services to serve such land and building erected or to
be erected thereon." The judge noted that of the one hundred
feet of required frontage, forty-four feet is paved, the width
is thirteen to fourteen feet and the grade is relatively flat.
Beyond the paved section is 59.5 feet of "'concrete mesh' paver
blocks" designed to "accommodate heavy vehicle loadings or
passenger type of loadings." The judge ultimately concluded,
therefore, that both lot B and lot C have adequate frontage on a
street and the lots have not merged.
On appeal, the trustees do not refute the judge's findings.
Rather, in addition to relying on the purported technical flaws
14 in the 2021 ANR plan, they argue that the judge ignored that the
local bylaw requires that a way be "constructed," and quote Shea
v. Board of Appeals of Lexington, 35 Mass. App. Ct. 519, 523
(1993), for the proposition that "if the purpose of the by-law
is not to be undermined," the bylaw must be read "to require an
actual way, constructed on the ground, not just a depiction of a
way on a plan." The judge's findings as to the flat grade and
mesh pavers installed on Bartlett Court extension amply belie
the suggestion that the extension is simply a paper street, and
support the conclusion that it has been "constructed." And,
even if at the time the planning board reviewed the special
permit application the pavers had not yet been installed,
Petersen's and Lieberman's expert testified that dirt roads are
plentiful in the Commonwealth and also provide adequate access.
We cannot say on this record, therefore, that the board of
appeals' conclusion that the extension is a street that provides
adequate access was error.
The trustees next suggest that the extension is not a
street; it is functionally a driveway. They note testimony that
there is no technical difference between private ways and
driveways; however, they fail to point to any portion of the
zoning bylaw that would compel the conclusion that the extension
may not be considered a street. Our own review does not reveal
15 a separate definition of "driveway."17 Thus, we discern no
error.
In short, we agree with the Land Court judge that any
technical deficiencies in the 2021 ANR plan are not controlling
when considering an argument that 9 Bartlett Court, the subject
of the special permit application, has merged with adjoining
land at 11 Bartlett Court. Having properly examined the history
of the property and the existing conditions on the ground and
made findings of fact that are consistent with the evidence, the
judge reasonably concluded that two adjacent lots each have the
requisite one hundred feet of frontage on a street, such that
the merger doctrine does not apply, and properly affirmed the
17The subdivision control regulations -- to the extent they have application to the issues before us where the extension is a street that existed prior to the town's adoption of the subdivision control law -- classifies "street" in four categories, the final being a "Lane," defined as "a street which, in the opinion of the Board, is being used or will be used primarily to provide access to a small number of abutting lots, carrying 150 (or fewer) vehicle trips per day."
16 decisions of the planning board and the board of appeals.
Judgments affirmed.
By the Court (Grant, Brennan & Smyth, JJ.18),
Clerk
Entered: January 21, 2026.
18 The panelists are listed in order of seniority.