Town of Marblehead v. Deery
| Decision Date | 24 December 1969 |
| Parties | TOWN OF MARBLEHEAD v. John A. DEERY, Jr. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Paul L. Lausier, Town Counsel, for plaintiff, submitted a brief.
Wesley E. Bevins, Jr., for Marblehead Neck Improvement Association, Inc., amicus curiae, submitted a brief.
James T. Ronan, Salem, for defendant.
Before SPALDING, CUTTER, KIRK, SPIEGEL, and QUIRICO, JJ.
The town by its bill in equity seeks to compel Deery to remove the portion of his dwelling within twenty feet of Sean's Way, Marblehead. After hearing, the trial judge made a report of material facts upon the basis of which the facts are stated below, except as otherwise indicated. By final decree, the bill was dismissed. The town appealed. The evidence, largely undisputed, is reported. 1
In 1959 Deery owned land on the south side of Harbor Avenue on Marblehead Neck. That land is part of the area shown on the accompanying sketch, which simplifies a Land Court plan in evidence. 2
On Deery's land there was a large dwelling built in 1887. The house in 1959 was approached by a double curved driveway from Harbor Avenue with a branch extending around the east side of the house to a culde-sac or turnaround a short distance southeast of the house. This in part, at least, appears to have followed a twenty foot right of way mentioned in earlier deeds of Deery's land.
In June, 1959, Deery submitted to the Marblehead selectmen as the town board of survey (see G.L. c. 41, § 73, as amended through St. 1953, c. 674, § 8 3) a petition accompanied by a plan and profile, seeking approval (c. 41, §§ 74--81) for the location of a private way, Sean's Way, approximately in the area shown on the accompanying sketch. This action was part of Deery's 'plan to make a subdivision of his whole property into five lots' essentially as shown on the sketch. Lot 11 had been shown on an earlier Land Court plan with a lot 10 comprising most of the balance of the land shown on the sketch plan (but not including the strip, south of broken line A--A, see fn. 2). Under the new plan lots 11 and 12 were to have frontage on Harbor Avenue, and new lots 13 (containing the old dwelling), 14, and 15 were to have frontage only on Sean's Way. After notice and hearing, the five members of the board of survey on July 6, 1960, indorsed their approval on the plan and profile, subject to conditions 4 (not here material) with which Deery complied.
lots 11 and 12. The evidence shows that houses were built on lots 11, 12, and 15 in 1960, 1962, and 1964, respectively.
The Marblehead zoning by-law provides (§ 8) that in front yards in all residence districts, 'no building shall be * * * maintained within 20 feet of any street line' (with a proviso not here pertinent). In a limited single residence district like that in which Deery's land lies, '(t)here shall be * * * 15 feet of clear width between the side line of each lot and every building thereon.' After the approval and construction of Sean's Way, the east end of Deery's house is 8.55 feet from the westerly boundary of the way.
After the approval of Sean's Way and the filing of the subdivision plan on October 21, 1960, Deery did work in the portion of east end of his house within twenty feet of Sean's Way. Photographs of the house show this portion of the house to be substantial. It contains, among other areas, the kitchen, laundry, and a small work room, and plastered bedrooms on the second floor. The evidence shows that it would cost at least $8,000 to $10,000 to remove the portion in dispute. The town engineer testified that he never objected, after the approval of Sean's Way, to providing sewer and other services in Sean's Way. See G.L. c. 41, § 77. The building inspector testified that the location of the dwelling in relation to the way would not affect traffic on the way. There was no suggestion in evidence of any town objection to work done by Deery after 1960 inside the east end of his house, or that the presence of the house 8.55 feet from the west side of the way caused, or would cause, any public problem or nuisance. The town's objection appears to be only that there is a technical violation of the zoning by-law.
1. The town now contends that the maintenance of the house 8.55 feet from Sean's Way does not comply with the front yard requirements of the by-law. The contention was first made on August 17, 1965, by a notice to Deery from the building inspector. The trial judge dealt with the town's contention by deciding that the main entrance of the house is now on its south side and that the area between the house and Sean's Way on that side of the house, more than twenty feet in depth, now constitutes the front yard of the house. He also treated the maintenance of the house at its present location, where it has been since before the first Marblehead zoning by-law adopted in 1928, as a pre e xisting use not affected by the zoning by-law. The evidence, we think, does not permit either of these conclusions.
We interpret the by-law as intended to treat the front yard of a house as lying in the direction of the closest point of the way on which the owner's land abuts, at least as here where that land abuts on only one way. No special circumstances require application of a different rule in this instance. Cf. Selectmen of Lancaster v. DeFelice, 352 Mass. 205, 206--208, 224 N.E.2d 218; Scott v. Board of Appeal of Wellesley, Mass., 248 N.E.2d 281. a
The new subdivision in 1960, the approval of Sean's Way at Deery's request, and the subsequent conveyances of lots 11 and 12 created a new relationship of Deery's dwelling to the neighboring ways, so that the proximity of the house to a new way open to public use (a way within the definition of 'street' in the by-law) materially changed the use of the premises to one now not in conformity with the by-law. In 1960 the use of the house was, and for some time had been, in conformity with the by-law. It was not a nonconforming use. It has now become an unprotected nonconforming use. See Howland v. Acting Superintendent of Bldgs. & Inspector of Bldgs. of Cambridge, 328 Mass. 155, 159--160, 102 N.E.2d 423; Alley v. Building Inspector of Danvers, 354 Mass. 6, 8, 234 N.E.2d 879.
2. Despite what has been said, the final decree seems to ...
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