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Wild v. Meserve

Superior Court of Massachusetts, Essex

November 5, 2015

Victor Wild et al. [1]
Jeffrey Meserve et al. [2] Opinion No. 132342


Elizabeth M. Fahey, Justice


I accept all of the undisputed facts. I accept that the property owner Mr. Meserve sought a special permit to construct a sixteen-foot dormer in his garage. In his April 30, 2013 application to the Zoning Board of Appeals (" ZBA") for the special permit, he did not specify the use of this proposed dormer. The ZBA had no information on the proposed use of this dormer. There was a public hearing on May 28, 2013. Mr. Wild, Ms. Champagne, and her daughter appeared; Henriette, the daughter, and Mr. Wild testified before the ZBA.

The purposes of the Marblehead zoning law ordinance include: " to provide adequate light and air; to prevent overcrowding, of land[; ] . . . to facilitate the adequate provision of . . . open space, and other public requirements; to conserve the value of land and buildings . . ." St. 1975, c. 808, § 2A. Those are the purposes of the Marblehead's Zoning Ordinance that apply to this request for special permit.

Section 200-36 of the Marblehead Zoning Ordinance is entitled " Special permit for use and dimension." There are four other special permits that can be sought but this is clearly the only one that applies in this case. Subsection B of 200-36 provides the standards that govern the award of any special permit. According to Subsection B, " [t]he Board of Appeals shall consider the following standards; (1) [t]he general purpose and intent of this bylaw, and whether, (2) [t]he specific site is an appropriate location for such use or building; and (3) [t]he use as developed will not adversely affect the neighborhood . . ." Section 200-36, ByLaws of the Town of Marblehead, Zoning (1972).

The parties have agreed that Mr. Meserve's purpose was to use the dormer for office space. That is a different use than the purpose of a garage. The Board did not even know the purpose Mr. Meserve was intending to make of the second floor of the garage. The Board made findings without any, let alone adequate, consideration of Mr. Meserve's proposed use.

The defendant submitted some designs with his application, Exhibit 2, as provided in Exhibits 2, 3, 4, and 5. None of those drawing or designs were certified. He also submitted Exhibit 3A which specifically says: " The dwelling is located as shown, note: [l]ocations of abutting buildings are approximate only."

It is not appropriate that the ZBA would accept, and make rulings on, non-certified drawings. Non-certified drawings are basically worthless. In this particular case, Mr. Meserve did not disclose to the ZBA that he had filled in the entire side setback on the left side of the garage, as one looks at the two garage doors. The entire left set back is approximately six and a half feet high and at least twenty-four feet in length, which is completely filled. That space has a roof that consists of plywood on the entire top of the structure, which makes it a " building" in Marblehead. Section 200-7 of the Marblehead Zoning Chapter defines building as " [a] combination of any materials, whether portable or fixed, having a roof, to form a structure for the shelter of persons, animals or property." Section 200-7 defines " roof" to include " an awning or any similar covering whether or not permanent in nature." Marblehead Zoning Code, § 200-7. The definition of the word " building" includes a " structure"; " structure" is not further defined. Id.

That structure/building on the left side of the garage has been there for at least fifteen years. There is no evidence that Mr. Meserve ever obtained a permit for it. That structure/building fills in the entire left yard setback, which decreases the open space on Mr. Meserve's property. There is a blue tarp over the plywood that has roofing shingles on it; that tarp is tied to the eight-foot-high stockade fence in the rear of his property. This sizeable structure/building fills in the entire left yard setback. The entire space under the plywood roof is completely filled.

Facing the Meserve two-bay garage on the right side is some space, which also has a kind of ceiling. The ceiling is open in part, and appears to consist of a roof-like trellis; it is wooden and of the kind of trellis that could be used to grow grapes. The space below this ceiling is also mostly occupied and filled with items. A big sailboat is stored there. There is only enough open space for a walkway, approximately two to three feet in width that goes from the rear of defendant's property to the driveway.

The garage has two bays and both are filled. A sailboat hull and another boat are both inside on the left bay, as one faces the garage. The chassis of two vintage cars, one above the other, are inside the right bay of that garage as one faces the garage. Both bays also contain lots of other stuff. There is nothing wrong with that, except that this arrangement leaves no space in either of the garage bays to park a motor vehicle. The garage is not used for parking of any regularly used motor vehicle. Instead, the driveway is used for parking.

At the time this application was submitted, the Meserves already did not have the required eight-foot rear setback. Mr. Meserve testified that the rear setback is seven feet wide. The absence of the required eight-foot rear setback should have at least been considered by the ZBA. When the ZBA takes away additional open space, and when there is already less than the required open space, the ZBA ought to at least account for that.

Behind the garage and in the rear of his property, Mr. Meserve has, with the authority of the ZBA, at least a ten-foot long by five-foot deep shed that is basically attached to the rear wall of the garage. Access to that fifty-square-foot shed is from both the interior of the garage, and by the narrow walkway to the right of the garage. That shed is affixed to a second shed for which Mr. Meserve has no permit. See Exhibits 28, 24, 24A and B, an aerial view of the so-called " real yard, " 24E, 24D and also 24C.

The second shed is depicted in Exhibit 24C from the front and side. It is next to a Rubber Maid storage container that is approximately six feet tall, five feet in width and approximately 18-24 inches deep. This second shed is between the permitted ten by five-foot shed and the Rubber Maid storage container. There is no permit for the second shed, which also has a roof and appears to be made of plywood and two by fours. That shed has pieces of plywood on the front, both as a fascia board and going down to the ground. That shed stores at least ...

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