Rockwood v. Snow Inn Corp.

• Decision Date: 20 February 1991
• Citation: 409 Mass. 361,566 N.E.2d 608
• Parties: George I. ROCKWOOD, Jr., et. al. 1 v. The SNOW INN CORPORATION, et. al. 2
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 608

566 N.E.2d 608

409 Mass. 361

George I. ROCKWOOD, Jr., et. al. ¹ v. The SNOW INN CORPORATION, et. al. ²

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Oct. 3, 1990.

Decided Feb. 20, 1991.

Stephen M. Voltz, Boston, for plaintiffs.

Robert D. Hall, Harwich Port, for The Snow Inn Corp.

James M. Falla, West Harwich, Town Counsel, for Bd. of Appeals of Harwich.

James M. Shannon, Atty. Gen., and Samuel D. Zurier, Asst. Atty. Gen., for amicus curiae, submitted a brief.

Richard S. Emmet, Boston, for amicus curiae Conservation Law Foundation of New England, Inc., submitted a brief.

Before LIACOS, C.J., and WILKINS, ABRAMS, NOLAN and O'CONNOR, JJ.

O'CONNOR, Justice.

The board of appeals of Harwich (board) granted The Snow Inn Corporation (Snow Inn) a special permit allowing changes and extensions to structures that preexisted the Harwich zoning by-law and did not fully conform to the by-law's setback requirements. The plaintiffs, neighbors of Snow Inn, appealed the board's decision to the Land Court. A judge of that court affirmed the board's decision, and the plaintiffs appealed. We granted the plaintiffs' application for direct appellate review and now reverse the judgment below. ³

We set out the few facts that are essential to our decision. For many years a large complex has existed adjacent to Wychmere Harbor in the Harwichport section of Harwich. The major structures include Thompson's Clam Bar with a deck overlooking the harbor, a Victorian-era building known as The Snow Inn, and the Wychmere Harbor Club. The latter two buildings do not comply with the setback requirements of the Harwich zoning by-law. Those failures of compliance constitute nonconformities protected by G.L. c. 40A, § 6 (1988 ed.). Snow Inn's proposed project, for which it obtained board approval, would increase the square footage of the building coverage of the lot from 64,740 square feet to 85,865 square feet.

The zoning by-law requires that the buildings must not cover more than fifteen per cent of the Snow Inn lot. The lot is bounded on one side by the Atlantic Ocean (Nantucket Sound). If the lot is deemed to extend to the "extreme low water mark," as that term is used in modern tidal charts, that is, to reflect the lowest level ever reached by the sea at that location, the percentage of the lot that would be covered by buildings after completion of the project would be less than fifteen per cent, thus complying with the lot coverage requirement of the by-law. However, if the lot is deemed to extend no further than either the "mean low water mark," that is, a line established by an average of the low tides, or "the line of extreme low water shown at an ebb of the tide, resulting from usual causes and conditions," East Boston Co. v. Commonwealth, 203 Mass. 68, 72, 89 N.E. 236 (1909), the percentage of lot coverage as a result of the proposed changes and extension would exceed fifteen per cent and thus would fail to comply with the by-law's lot coverage requirement.

General Laws c. 40A, § 6, provides in relevant part: "Except as hereinafter provided, a zoning ordinance or by-law shall not apply to structures ... lawfully in existence ... before the first publication of notice of the public hearing [concerning the adoption of a proposed zoning ordinance or by-law] required by section five, but shall apply ... to any reconstruction, extension or structural change of such structure ... except where ... reconstruction, extension or structural change to a single or two-family residential structure does not increase the nonconforming nature of said structure. Pre-existing nonconforming structures or uses may be extended ... provided, that no such extension ... shall be permitted unless there is a finding by the permit granting authority or by the special permit granting authority designated by ordinance or by-law that such ... extension ... shall not be substantially more detrimental than the existing nonconforming use [ ⁴ to the neighborhood." We conclude, apparently differently from the trial judge, that the first sentence of the quoted portion of § 6 requires that, in the absence of a variance, any extension or structural change of a nonconforming structure must comply with the applicable zoning ordinance or by-law. Then, if the proposed extension or change conforms to the by-law, the second quoted statutory sentence requires for project approval a finding that the extension or change will not be substantially more detrimental to the neighborhood than the existing nonconforming structures. If the first and second sentences are read together, the statute permits extensions and changes to nonconforming structures if (1) the extensions or changes themselves comply with the ordinance or by-law, and (2) the structures as extended or changed are found to be not substantially more detrimental to the neighborhood than the preexisting nonconforming structure or structures.

If we were not to construe G.L. c. 40A, § 6, in that way, the provision in the first quoted sentence that a zoning ordinance or by-law "shall apply ... to any reconstruction, extension or structural change of [a protected nonconforming structure]" would be meaningless surplusage. Indeed, even as to a single or two-family residence, structures to which the statute appears to give special protection, the zoning ordinance or by-law applies to a reconstruction, extension, or change that "would intensify the existing nonconformities or result in additional ones." Willard v. Board of Appeals of Orleans, 25 Mass.App.Ct. 15, 22, 514 N.E.2d 369 (1987).

Section X (J) of the Harwich zoning by-law tracks the second sentence quoted from G.L. c. 40A, § 6. Section X (J) provides: "Pre-existing non-conforming structures or uses may be changed, extended or altered on special permit from the Board of Appeals, provided that no such change, extension or alteration shall be permitted unless there is a finding by the Board that such change, extension or alteration shall not be substantially more detrimental to the neighborhood than the existing non-conforming use." Section X(J) is applicable under G.L. c. 40A, § 6, but, contrary to the trial judge's apparent understanding, we do not understand Section X(J) to mean that the board's finding that the project will not be substantially more detrimental to the neighborhood than the existing nonconforming structure entitles the developer to make structural extensions or changes that would cause lot coverage or other by-law provisions to be violated.

Neither Snow Inn nor the board contends that a finding that the project will not be substantially more detrimental to the neighborhood than the existing nonconforming structure would itself justify extensions or changes that violate the by-law's lot coverage or other requirements. The board contends, however, that the only question before it, and hence before the Land Court judge and this court, was the "substantial detriment" question. The board maintains that the question whether Snow Inn's proposed project may violate lot coverage or other zoning requirements was not germane to the special permit hearing or the Land Court judgment and is better left to subsequent proceedings. The plaintiffs and Snow Inn do not appear to agree with that proposition. Rather, they vigorously argue several issues having to do with whether Snow Inn's proposed extensions and changes would violate the lot coverage and other by-law requirements. It may be that the plaintiffs could have waited until after the grant of the special permit was finalized before raising the question whether the buildings could be extended in such a way as to violate by-law restrictions. We need not decide that matter. In view of the parties' extensive arguments about whether the proposed project would conform to the by-law, and in light of the adjudication and order in the Land Court that "the improvements for which Snow Inn sought approval from the [board] met the statutory test forth in [G.L. c. 40A, § 6,] as well as that in the zoning by-law, [and] that they are protected by such provisions," we deem it appropriate for us to determine now whether the project as proposed would run afoul of the by-law.

We need to focus on only one question to resolve this case. That question is whether Snow Inn's property on its ocean side extends to a line that reflects the lowest level ever reached by the sea, perhaps as the result of a severe storm or other unusual event at that location, or instead extends only to either the mean (average) low level mark or to a line determined by the extreme low water "at an ebb of the tide resulting from usual causes and conditions." East Boston Co. v. Commonwealth, 203 Mass. 68, 72, 89 N.E. 236 (1909). As we have said above, the answer to that question is determinative of this appeal, because it determines whether the project as proposed will meet the fifteen per cent building coverage by-law requirement.

The Colonial Ordinance of 1641-1647 declared that, "in all creeks, coves and other places, about and upon salt water, where the sea ebbs and flows, the proprietor of the land adjoining shall have propriety to the low water mark, where the sea doth not ebb above a hundred rods, and not more wheresoever it ebbs further." The Book of General Lawes and Libertyes 50 (1649). In Storer v. Freeman, 6 Mass. 435, 437 (1810), this court stated that, from the time the "ordinance was annulled with the charter by the authority of which it was made ... a usage has prevailed, which now has force as our common law, that the owner of lands bounded on the sea or salt water shall hold to low water mark, so that he does not hold more than one hundred rods below high water mark; but the rights of others to convenient ways are saved, agreeably to a provision in the ordinance. This rule applies only in cases where the grantor, seised of the upland and flats, in conveying his land, bounds the land sold on the sea or...