Becket v. Building Inspector of Marblehead

• Decision Date: 14 March 1978
• Citation: 6 Mass.App.Ct. 96,373 N.E.2d 1195
• Parties: William C. BECKET et al. v. BUILDING INSPECTOR OF MARBLEHEAD et al. 1
• Court: Appeals Court of Massachusetts

Page 1195

373 N.E.2d 1195

6 Mass.App.Ct. 96

William C. BECKET et al. v. BUILDING INSPECTOR OF MARBLEHEAD et al. ¹

Appeals Court of Massachusetts, Essex.

Argued Feb. 16, 1978.

Decided March 14, 1978.

James T. Ronan, Salem, for J. Hilary Rockett.

Israel Bloch, Swampscott, for plaintiffs.

Lawrence J. Markell, Marblehead, for Building Inspector of Marblehead.

Before GRANT, ARMSTRONG and BROWN, JJ.

GRANT, Justice.

As originally constituted, Lot 4 on Foster Street on Marblehead Neck was comprised of approximately 41,400 square feet of upland and 7,500 square feet of adjoining tideland located in Marblehead Harbor. On January 20, 1976, the defendant Rockett caused to be recorded in the Essex South District registry of deeds a plan which purported to subdivide Lot 4 into Lots 4A and 4B. The whole of Marblehead Neck constitutes the only Limited Single Residence (L-S) zoning district which exists under the zoning by-law of the town of Marblehead. On January 22, 1976, the building inspector of the town issued permits to Rockett for the construction of a single-family dwelling on each of Lots 4A and 4B. Rockett acquired title to Lots 4A and 4B by a deed dated and recorded on February 23, 1976, and commenced construction shortly thereafter.

The plaintiffs, who are the owners of other properties located on the neck, claimed various violations of the zoning by-law and demanded that the building inspector revoke both permits. The inspector took no action, and the plaintiffs filed the present compliant in the nature of mandamus against the inspector and Rockett. ² The case was submitted to a judge of the Superior Court on the pleadings, cross motions for summary judgment, and various affidavits and photographs. A judgment was entered which dismissed the complaint so far as it related to Lot 4A, declared null and void the building permit issued with respect to Lot 4B, enjoined Rockett from proceeding with the construction of any dwelling on Lot 4B, and ordered Rockett to remove all construction on Lot 4B. Rockett and the building inspector have appealed. The plaintiffs have not appealed, and there is no longer any question with respect to Lot 4A.

The portion of the zoning by-law's table of dimensional regulations which applies to the L-S district requires Lot 4B to have 100 feet of frontage on Foster Street and a minimum "Lot Area" of 20,000 square feet. The subdivision plan discloses the required frontage. The boundaries of Lot 4B have been drawn on that plan in such fashion as to include approximately 13,000 square feet of upland fronting on the street and the entire 7,500 square feet of tideland that had adjoined Lot 4 prior to the subdivision. The only connection between the areas of upland and tideland consists of a strip of upland one foot wide and 129 feet long which lies adjacent to the southerly boundary of Lot 4A. Lot 4A has no means of access to the harbor except over a common easement of record which proceeds over the upland of Lot 4B and other adjoining lots, which predates the subdivision, and which is of no present materiality.

The aforementioned table of dimensional regulations places a number of strictures on the location (and thus on the size) of the dwelling that can be constructed on a lot in the L-S district, but, except for the frontage requirement and a width restriction which does not apply to the one foot strip of upland but which will be considered at the conclusion of this opinion, there is nothing in the by-law which purports to regulate the shape of a lot in the district. ³ It is not disputed that the town's zoning power extends to the 7,500 square feet of tideland here in question. See MacGibbon v. Board of Appeals of Duxbury, 347 Mass. 690, 200 N.E.2d 254 (1964), S.C., 356 Mass. 635, 255 N.E.2d 347 (1970), 369 Mass. --- ^a, 340 N.E.2d 487 (1976); Brady v. Board of Appeals of Westport, 348 Mass. 515, 524, 204 N.E.2d 513 (1965); Crawford v. Building Inspector of Barnstable, 356 Mass. 174, 179, 181, 248 N.E.2d 488 (1969); Golden v. Selectmen of Falmouth, 358 Mass. 519, 522-523, 265 N.E.2d 573 (1970); S. Volpe & Co. v. Board of Appeals of Wareham, --- Mass.App. ---, --- ^b, 348 N.E.2d 807 (1976). The principal question raised by the appeal is whether the by-law permits that area of tideland to be included in the makeup of Lot 4B in order to meet the 20,000 square foot minimum area requirement. If it does not, the building permit is invalid.

None of the parties has cited, nor have we found, a case which sheds any direct light on the resolution of that question. ⁴ The motion judge's reasoning and resolution are disclosed by the following passage found in a memorandum filed by him: "It is, obvious that all lots on Marblehead Neck not having shore front must contain a minimum of 20,000 square feet under the zoning by-law. Marblehead Neck presents a curious geological formation along its waterfront perimeter. Many parts of the shore line consist of rocky cliffs of steep sides facing the water. Other parts of the Neck consist of rocky coves, with a gradually shelving shore line into the harbor or into the ocean. As one proceeds in a southwesterly direction from the entrance of the harbor up to its end, which is marked by a causeway, the harbor shoals in depth so that at the head of the harbor, the shores and tidelands increase in size. Thus, some waterfront owners own tideland that may consist of no more than a foot or two from mean high water to mean low water that is to say, those owners, whose shore front consists of steep rocky cliffs. Other shore front owners, such as the defendant Rockett, own waterfront land the shore front of which is not precipitous, but rather consists of rocky beach and shoals, so as to include a distance between mean high water to mean low water of as much as 60, 70 feet. It thus appears that an owner whose shore front is precipitous necessarily must have approximately 20,000 square feet of uplands in order to comply with the zoning by-law. The defendant's contention would mean that a shore front owner fortuitous enough to have a gently shelving shore line, would be required only to have so much upland as, added to his tidelands, would achieve the required 20,000 square foot area. The construction urged by the defendant would result in lots on the upland shore front of Marblehead Neck of gross disparity in size. Marblehead Neck, for at least the past forty years, has consisted generally of large, and rather extravagant summer homes. Earlier in this century, and obviously before the enactment of the current zoning by-laws there were constructed, and still exist, small summer cottages on small lots. I find that the adoption of the current zoning by-law was designed to prevent the construction of residences on small lots. I find that the interpretation urged by the defendant would result in defeating the objectives of the zoning by-law, here in issue, and would destroy the general structure of the Marblehead Neck zoning taken as a whole. Small upland lots would inevitably appear in those areas where the shore line presents a gentle slope, whereas all other owners, those with no waterfront, and those with steep waterfronts, would be held to the minimum on their upland area." ⁵

The foregoing displays the commendable virtues of uniformity, lessening congestion and preservation of amenities (see G.L. c. 40A, §§ 2 and 3, as in effect prior to St.1975, c. 808, § 3), but we think it fails to come to grips with the express definitions of the words "Lot" and "Lot Area" set out in the Marblehead zoning by-law. A "Lot" is there 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." The relevant portion of the definition of "Lot Area" (the words which are employed in the dimensional table) was "(t) he horizontal area within the exterior lines of the lot, exclusive of any area in a public or private street or way." The true objective of the inquiry is the reasonable construction of the quoted words (see Perry v. Building Inspector of Nantucket, --- Mass.App. ---, --- ^c, 350 N.E.2d 733 (1976), and cases cited) when they are considered in light of the principle that "(t) he by-law (is) the expression of the voters of the town, all of whom must be presumed to have been familiar with the physical characteristics of the locality and the general nature of the neighborhood." Milton v. Donnelly, 306 Mass. 451, 459, 28 N.E.2d 438, 442 (1940). See also Tracy v. Board of Appeals of Marblehead, 339 Mass. 205, 208, 158 N.E.2d 317 (1959); Van Sant v. Building Inspector of Dennis, 352 Mass. 289, 292, 225 N.E.2d 325 (1967).

Rockett's ownership of the 7,500 square foot area between the mean high and mean low water lines, like that of other littoral proprietors similarly situated, stems from the colonial ordinance of 1641-1647. Iris v. Hingham, 303 Mass. 401, 403, 22 N.E.2d 13 (1939). ⁶ Such tidal areas are commonly thought of as land (see Opinion of the Justices, 365 Mass. 681, 684-688, 313 N.E.2d 561 (1974); Barry v. Grela, --- Mass. --- ^d, 361 N.E.2D 1251 278[1977]), (1977), and we think it of some significance that the voters of a coastal community, who must have had at least a working understanding of the rules by which the boundaries of tidelands are determined (see Iris v. Hingham, 303 Mass. at 404-405, 22 N.E.2d 13) and can shift (see East Boston Co. v. Commonwealth, 203 Mass. 68, 75, 89 N.E. 236 (1909); Michaelson v. Silver Beach Improvement Assn., 342 Mass. 251, 253-254, 258, 173 N.E.2d 273 (1961)), took care to define a "Lot" in terms of an "area of land defined by metes, bounds, or boundary lines in a duly recorded deed or shown on a duly recorded plan." Those same voters must be taken to have been aware of the varying topographical features which concerned the motion judge when they adopted a townwide definition of "Lot Area" as the "horizontal area within the exterior lines of (a) lot" (...