Davis v. Zoning Bd. of Chatham

• Decision Date: 08 December 2000
• Docket Number: P-480
• Citation: 754 N.E.2d 101,52 Mass. App. Ct. 349
• Parties: (Mass.App.Ct. 2001) DAVID M. DAVIS <A HREF="#fr1-1" name="fn1-1">1 & others <A HREF="#fr1-2" name="fn1-2">2 vs. ZONING BOARD OF CHATHAM & another. <A HREF="#fr1-3" name="fn1-3">3 99-
• Court: Appeals Court of Massachusetts

754 N.E.2d 101 (Mass.App.Ct. 2001)

DAVID M. DAVIS¹ & others² vs. ZONING BOARD OF CHATHAM & another.³

99-P-480

Massachusetts Court of Appeals

December 8, 2000

August 27, 2001

County: Suffolk.

Present: Porada, Laurence, & Lenk, JJ.

Zoning, Special permit, By-law, Nonconforming use or structure, Board of appeals: decision.

Civil action commenced in the Land Court Department on October 22, 1996.

The case was heard by Leon J. Lombardi, J.

Peter S. Farber for the plaintiffs.

Bruce P. Gilmore for the defendants.

LAURENCE, J.

The plaintiffs are keen recreational sailors living on Stage Island, Chatham, who describe their community as "a yachtsman's dream." Their desire to share in that dream, by converting a former Coast Guard launchway and boathouse to which they had acquired property rights, into a facility accommodating their boats for private recreational purposes, was deferred when the zoning board of Chatham (board) denied their application for a special permit to effect the conversion. The plaintiffs appealed both that denial and the application of the town of Chatham's (town) zoning by-law to the existing structures in a complaint to the Land Court. After three days of evidentiary hearings, a judge of that court dismissed the complaint and entered judgment for the board and town. The plaintiffs pursued their dream here, but it dissolves on the shoals of appellate standards.

Factual background. The essential facts (according to the judge, whose findings are unchallenged by the plaintiffs, and as reflected in undisputed portions of the record) are as follows. In 1936, well before the town enacted its zoning by-law, the United States Coast Guard, under a lease from the then owners, the Cabot family, constructed a boathouse and connected timber launchway on Stage Island and in Stage Harbor. The facility was intended to serve and was in fact exclusively used as a lifesaving station.⁴ Except for minor maintenance, and wear and tear, the two structures remain essentially as constructed by the Coast Guard and have never been altered. The Coast Guard abandoned the facility and its lifesaving operations in 1976. The structures have not been used for any purpose since 1976 and have never been used for private boat storage or moorings or any other private recreational boating purpose. They do not conform dimensionally to the town's zoning by-law in numerous material respects.

In 1950, David M. Davis acquired the property (locus) on which the Coast Guard facility was sited from the Cabots and in 1979 purchased the abandoned boathouse and launchway from the United States Government. The locus is subject to an easement enjoyed by forty or more persons living on the adjacent Morris Island to access the harbor thereover for the purposes of launching and landing boats, but not entitling them to any rights to use the former Coast Guard structures. Over the years, Davis has also conveyed a number of undivided fractional interests in the locus and the boathouse to the other plaintiffs herein. Appurtenant to each such interest was the exclusive right to use a fifteen foot section of the launchway's catwalks to tie up a boat or boats (to a maximum of sixteen on each side of the launchway) "if authorized by the harbor master of the Town of Chatham."

Stage Harbor, which is part of the town's Coastal Conservancy District,⁵ is a popular recreational area that is congested with craft during boating seasons. The available mooring field is fully occupied, and the town's harbor master maintains a lengthy waiting list for spaces (numbering over eighty people at the time of the hearing). Stage Harbor also is the town's most heavily concentrated shellfishing ground, attracting both commercial and recreational fishermen (all under municipal license) and is regularly seeded to maintain and enhance the shellfish population.⁶

Procedural background. Commencing in 1986, the plaintiffs attempted to realize their dream by a series of requests for town permission to convert the launchway for the purpose of private recreational boating. The instant litigation arose from their most recent effort, which sought a special permit "to reconstruct the 300 foot former Coast Guard pier⁷ and railway facility at the site," which they presented as a change, alteration or extension of a "lawfully existing" nonconforming structure or use under G. L. c. 40A, § 6, and § V.B. of the by-law.⁸ Their application proposed to (1) remove approximately 150 feet from the seaward end of the launchway; (2) narrow the width of the launchway to six feet; (3) reconstruct the remaining portion of the launchway into an elevated pier; (4) construct an extensive ramp and float system extending perpendicularly from ramps on each side of the resulting pier to a width of fifty-eight feet; and (5) construct berthing or slips along the pier for ten boats. Although the launchway would be shortened to about fifty percent of its present length under the plaintiffs' plan, the footprint of the proposed structure would be approximately 1,340 square feet larger than at present because of the increased width required to accommodate the boat mooring apparatus. No changes were proposed to the boathouse. The locus, boathouse, and launchway are located in a Conservancy District (see note 5, supra), in which construction of a private pier is permitted only upon a finding that it will not be detrimental to waterway safety or access, water quality, equity of interest in utilizing waterways and the protection of aesthetic values, and in which pier length is limited to eighty feet and pier width to four feet.

The board noted that the nonconforming structures at issue had gone unused since 1976. Consequently, they were no longer preexisting nonconforming structures subject to c. 40A, § 6, and could not be reestablished except under and in conformity with the zoning by-law.⁹ Since the proposed pier would exceed the maximum size permitted in the zoning district, the board acknowledged that it could deny the application on that ground but decided, "in the interest of equity," to consider the matter under the statutory and regulatory provisions governing changes in lawful nonconforming uses and structures. That consideration led the board to deny the permit on the basis of its findings that"the proposed structure and use would be substantially more detrimental to the neighborhood than the existing nonconforming structure. The area of Stage Harbor consumed by the proposed pier and boat slips is greater than that currently occupied by the existing . . . facility. This reduction in available square footage would result in the loss of existing boat moorings in Stage Harbor. In addition, this reduction would occur in the sub-tidal area of the harbor, significantly increasing the impediment to the harvesting of shellfish."

The plaintiffs appealed this decision to the Land Court in a two-part complaint. Count I (pursuant to G. L. c. 40A, § 17) challenged the board's denial of their proposed reconstruction as unsupported by evidence and based upon an improper standard. Count II (pursuant to G. L. c. 240, § 14A) sought a judicial determination that the zoning by-law allowed, as of right, their use of the existing launchway to tie up ten boats as well as the use of the boathouse, not only to store boats and boating gear but also as an apartment (for a security person, as later testified to by Davis). After a three-day trial de novo, at which eight witnesses testified and numerous exhibits were introduced into evidence, the judge found the pertinent facts as previously described, supra at , emphasizing in particular that the Coast Guard facility was licensed as a boathouse and timber launchway; there had been no use of the boathouse or launchway since 1976; those structures were only licensed and utilized for the Coast Guard's lifesaving operations and had never been used as a pier or for any private recreational boating purposes; the area proposed to be utilized under the plaintiffs' application would be approximately 1,340 square feet larger than the present configuration; the project would result in the loss of at least ten mooring spaces in Stage Harbor; that harbor is already congested,¹⁰ the mooring field is fully occupied and closed to new moorings, and there were approximately eighty names on a waiting list for mooring locations; and the project would render inaccessible a large area for shellfishing as a result of the new locations of pilings, floats, and the plaintiffs' moored boats.

On the basis of the facts found and the applicable provisions of G. L. c. 40A and the zoning by-law, the judge concluded as to count I that (1) the proposal constituted a change in use triggering the need for special permit approval under the tests of Powers v. Building Inspector of Barnstable, 363 Mass. 648, 653, 662-663 (1973); (2) the plaintiffs' contention that the board utilized an improper standard (by comparing the proposed structures to a situation of no structures at all rather than to the existing structures) was belied by the explicit language of the board's decision; (3) the pier resulting from the proposed modification of the launchway would not conform to the dimensional requirements of the zoning by-law; and (4) the loss of moorings, increase in navigational congestion, and interference with shellfishing were significantly detrimental effects on the Stage Harbor neighborhood, any one of which constituted a permissible reason to sustain the board's decision to deny a special permit, which was neither arbitrary nor capricious.

As to count II, seeking a declaration of the plaintiffs' right to use the existing launchway and boathouse specifically for recreational boating purposes, the judge held that the launchway could not be used under the by-law as a pier to tie up the plaintiffs' boats without a special permit, even though recreational boating is a permitted activity in the Conservancy District...