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Furlong v. Zoning Board of Appeals of Salem

Appeals Court of Massachusetts, Suffolk

December 12, 2016

MICHAEL F. FURLONG & another [1]
v.
ZONING BOARD OF APPEALS OF SALEM & another. [2]

          Heard: October 7, 2016.

         The case was heard by Robert B. Foster, J.

          Dana Alan Curhan (Lawrence A. Simeone, Jr., with him) for the plaintiffs.

          Leonard F. Femino for BHCM Inc.

          Hanlon, Sullivan, & Blake, JJ.

          BLAKE, J.

         The defendant, BHCM Inc., doing business as Brewer Hawthorne Cove Marina (Brewer), sought and received a dimensional variance from the defendant, zoning board of appeals of Salem (board), allowing it to build a new boat repair facility outside of the setback requirements of the local zoning ordinance. The plaintiff abutter, Michael F. Furlong, filed a G. L. c. 40A, § 17, appeal in the Land Court. Following a jury-waived trial, the judge affirmed the board's decision, concluding that strict enforcement of the zoning ordinance would create an unnecessary safety hazard, and that Brewer accordingly had demonstrated a hardship sufficient to merit the allowance of a variance. We agree and affirm.

         Background.

         We recite the facts found by the judge, which are undisputed by the parties. Brewer owns a nonrectangular parcel of property[3] with frontage on White Street and Turner Rear Street in Salem (property) that it operates as an active marina. The property consists of a large, open, paved area with about 115 parking spaces and several structures, and is bordered by Salem harbor, residential dwellings, and a municipal parking lot. The structures include a combination shower, bath, and laundry house, a pressure wash shed, an approximately 1, 500 square foot temporary Quonset hut located in the center of the property, a small dock house, and a "marine travel lift" hoist (travel lift). As part of its marina operation, Brewer conducts boat repairs on the property, either outdoors or inside the Quonset hut.

          By application dated October 26, 2011, Brewer submitted a petition for a variance to the board seeking to construct a new building on the northern edge of the property, outside of the setback requirements of the local zoning ordinance. The proposed building would serve as the marina's boat repair facility, allowing the removal of the Quonset hut from the center of the property, and would also serve as the new location for the office. Brewer seeks to place the proposed building at the edge of the property in order to provide adequate room for the safe operation of the travel lift, [4]and to reduce the noise and fumes generated by the boat repairs presently occurring in the Quonset hut. As part of the building plan, the width of the entrance to the marina from White Street also would be widened, which would provide better access, including for emergency vehicles.

          Following a duly noticed public hearing on Brewer's application, [5]the members of the board voted to approve the application and filed a decision dated February 1, 2012, with the local city clerk's office. The board's decision notes that in so deciding, the board found that "impacts to the neighborhood were shown to be less substantial if sited as proposed rather than where it would be allowed by right." Furlong, who lives in a condominium unit approximately one hundred feet from the northern property line of the property, filed a complaint in the Land Court pursuant to G. L. c. 40A, § 17, challenging the decision of the board as legally untenable, arbitrary, and capricious.

         In a comprehensive and thoughtful memorandum of decision, the judge ruled that Furlong is a person aggrieved by the variance and, accordingly, has standing to bring the present action.[6] On the merits of the variance, the judge found that the evidence established that, owing to the shape of the property, strict enforcement of the zoning ordinance would result in a risk of physical harm. Finding that the safety risk constituted a substantial hardship to Brewer, the judge affirmed the board's allowance of the variance. This appeal followed.

          Standard of review.

         When a decision of a zoning board of appeals is appealed, "the judge is required to hear the matter de novo and determine the legal validity of the decision of the board upon the facts found by him." Josephs v. Board of Appeals of Brookline, 362 Mass. 290, 295 (1972) (Josephs). See G. L. c. 40A, § 17, inserted by St. 1975, c. 808, § 3 ("The court shall . . . determine the facts, and, upon the facts as so determined, annul such decision if found to exceed the authority of such board"). "Judicial review is nevertheless circumscribed: the decision of the board 'cannot be disturbed unless it is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary.'" Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478, 486 (1999), quoting from MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635, 639 (1970). In our review of the judge's ...


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