2008-03-06CITY OF BEVERLY
MASSACHUSETTS
PUBLIC MEETING MINUTES
These minutes are not a verbatim transcript of the public meeting
of the Board of Appeals. Reviews of the decision or outcome of the public
hearing should include an examination of the Board's Decision for that hearing.
Board: Zoning Board of Appeal Special Meeting
Date: March 6, 2008
Place: Beverly City Hall, Council Chamber, 191 Cabot Street
Board Members Present: Full Members Scott D. Houseman, Chairman, Margaret
O'Brien and Scott Ferguson. Alternate Members: Joel
Margolis and Noelle Faris.
Others Present: Building Commissioner/Director Steve Frederickson
and Clerk of the Board/ Diane Rogers.
Absent: Jane Brusca
Chairman Scott D. Houseman opened the meeting to the public at 7:00 p.m. He stated
that this was a special hearing to review an Administrative Decision regarding 3
Greenwood Avenue, presented by Attorney Thomas J. Harrington. Representing the
owner of 3 Greenwood Avenue was Attorney Brian M. Hurley.
Chairman Houseman stated that Mr. Michael Otis residing at 1 Greenwood Avenue, was
appealing the administrative decision of the Building Commissioner who decided not to
revoke building permit #71517. Mr. Otis is represented by Attorney Harrington who
believes this is not a buildable lot. Houseman stated the burden of proof is upon the party
seeking relief. He asked the Board members who did a site visit of the property. O'Brien
and Faris responded that they had visited the site. Chairman Houseman stated that before
Mr. Otis spoke, his attorney must first swear him in. Houseman asked if Attorney Hurley
had received the information packet that Attorney Harrington has presented. Mr. Hurley
responded that he did have the exhibits. Houseman asked Mr. Harrington if he had
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received Mr. Hurley's information. Mr. Harrington responded that he had received Mr.
Hurley's information. Chairman Houseman stated that he was aware that abutting
neighbors were in the audience but explained that because this is an Administrative
Appeal the Board did not have to hear their opinions.
Attorney Harrington swore in Mr. Otis. Mr. Otis stated he has resided at 1 Greenwood
Avenue for nearly 20 years. He added that in September of 2006, Lot A -2 was
considered buildable due to a variance that was granted in 1985. He stated that he is
questioning the legality of the current building permit. Mr. Otis commented that if he
wins this case he expects the new foundation to be demolished and the land replenished
as it once was. He stated this was a cause worth fighting for.
Attorney Harrington stated that Benjamin and Adrienne Stinson purchased the property at
3 Greenwood Avenue in 2006. The property is shown as Lot A -1 on the plan attached as
"Exhibit B." Lot A -1 exists only by virtue of a variance that the Board of Appeals
granted to Richard Sokolow on April 9, 1985. A copy of this variance is attached as
"Exhibit C." This variance waived the minimum frontage requirement for both Lot A -1
and A -2 as to frontage on Greenwood Avenue and for Lot A -1 from classification as a
"pork chop" lot. When the Board of Appeals granted this variance, Lot A -1 and LotA -2
did not, as a matter of record, exist as separate lots. Rather, they were both part of
original Lot A. In 1985 a variance to allow Mr. Sokolow to subdivide Lot A into Lots A-
1 and A -2 was granted. Shortly after the variance was granted on June 19, 1985, the
Planning Board endorsed an "Approval Not Required" plan showing both lots A -1 and
Lot A -2. This plan was then recorded in the Registry of Deeds. Lot A -2 lacks frontage
on any public way. Mr. Harrington added that when the variance was granted in 1985,
Lot A -2 had already been developed and Lot A -1 was vacant. Lot A -1 remained vacant
and no construction was ever undertaken until now. In addition, Lot A -1 and Lot A -2
were conveyed into nominally separate ownerships shortly after the 1985 variance issued,
but the record title indicates on its face that the two lots remained in common control
until 2006. Mr. Harrington is of the opinion that Lot A -1 is not a building lot and
building permit #71517 should be revoked. Mr. Harrington suggested that the Board
review Lopes v Bd. Of Appeals of Fairhaven, 27 and Hunters Brook Realty Corp. v.
Zoning Bd. of Appeals of Bourne, Hogan v. Hayes 19 Mass. App. Ct., Asack v. Bd. of
Appeals of Westwood, 47 Mass. and Berg v. Town of Lexington, 68 Mass, DiStefano v.
Stoughton, 36 Mass, and Planning Bd. of Norwell v. Serena, 27. Mr. Harrington in
conclusion states that the owners of Lots A -1 and A -2 never exercised the 1985 variance,
and, accordingly, it lapsed after one year. Futhermore, Lot A -1 merged with Lot A -2,
which lacks any frontage whatsoever, because the two lots, although conveyed
separately, remained in common control. Finally, should the Board of Appeals conclude
that the 1985 variance was exercised, and did not expire, and that the two lots did not
merge, Lot A -1 still does not possess 45,000 square feet of area for the purposes of
zoning, and is therefore unbuildable without further zoning relief.
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O'Brien asked if A -1 and A -2 merged, is Lot A conforming? Mr. Harrington responded
no. Houseman asked if prior to 1985, was it conforming. Mr. Harrington responded that
there was a dwelling there, but he would say it was nonconforming because there was no
frontage. Houseman stated that Mr. Stinson purchased the property in good faith, and did
not know there were any defects. Houseman asked if Mr. Harrington thought Mr.
Stinson acted with unclean hands. Mr. Harrington responded he did not. Houseman
asked what was expected of the Board. Mr. Harrington responded that the Board can
state that the variance lapsed when the lots merged.
Attorney Hurley stated his clients Mr. and Mrs. Stinson obtained their building permit
and then the abutter Mr. Otis attempted to block the issuance of the building permit later
and requested zoning enforcement after the permit was issued. He added that Mr.
Frederickson set forth in a letter dated November 12, 2007 after consultation with the
City Solicitor, rejected the arguments offered by counsel for Mr. Otis. Mr. Stinson asks
that the Board affirm the decision of the Building Commissioner, Steven Frederickson.
Mr. and Mrs. Stinson previously responded to the arguments of Mr. Otis by a letter dated
September 18, 2007 from their local counsel, Philip G. Lake, of Glovsky & Glovsky.
Each of the arguments raised by Mr. Otis, were addressed except whether the doctrine of
merger has any bearing on this case. On April 9, 1985 the Board of Appeals granted a
variance on Lot A on a plan dated March 10, 1961 and recorded with the Essex Registry
of Deeds. The Variance related to minimum frontage requirement on Greenwood
Avenue (and a pork chop lot classification) for lots in the R -45 Zoning District. The
variance authorized the creation of two lots from Lot A as shown on the 1961 Plan. As a
condition to the issuance of the variance, driveway access to each of the lots was limited
to Indian Hill Road. At that time of the variance, Lot A was owned by Shirley -Ann
Huffnagle. The applicant for the variance was Richard Sokolow. On June 19, 1985, the
Beverly Planning Board endorsed a plan "Approval Not Required" which showed Lot A
divided into lots A -1 and A -2. The plan, prepared for Ms. Huffnagle and dated August
20, 1984 made reference to the variance . Lot A -1 consisting of 45,321 plus or minus
square feet, was shown as unimproved. Lot A -2, consisting of 47,619 plus or minus sq.
feet, was shown as improved with a residence and garage. With the exception of
frontage, each of the lots conformed to existing dimensional requirements. With the
variance, each became a legal, conforming lot. On August 15, 1985, Ms. Huffnagle
conveyed Lots A -1 and A -2 to Mr. Herman Sokolow and Marilym Sokolow as joint
tenants. On October 3, 1985 Mr. Sokolow, et al, conveyed Lot A -1 to Richard Todd
Sokolow, Trustee of R & S Realty Trust. On October 3, 1985, Mr. Sokolow etal,
conveyed Lot A -2 to Richard Todd Sokolow, Trustee of Indian Hill Realty Trust. As a
matter of record title Lots A -1 and A -2 were separate lots shown on a recorded plan held
in separate ownership. Mr. Hurley stated that from a zoning perspective, the variance
had been exercised and the lots remained as separate, conforming lots. On July 17, 1986
R &S conveyed Lot A -1 to John Boyd, Trustee of the Boyd Indian Hill Trust. A schedule
of beneficiaries was not recorded in the Essex Registry of Deeds. On July 17, 1986,
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Indian Hill conveyed Lot A -2 to John Boyd and Paula Boyd as tenants by the entirety.
The Boyd family has lived in the house situated on Lot A -2 since 1986. By deed dated
January 20, 1989, Michael Otis and Jennifer Otis acquired Lot B as shown on the 1961
Plan and a very small piece of Lot A on that Plan. Lot B consists of .66 acres. With the
addition of the small portion of Lot B, the total size of the Otis lot is less than 45,000
square feet. At best, it is a pre- existing, non - conforming lot. The Otis lot is improved
with a residential dwelling. On September 27, 2006, the Trust conveyed Lot A -1 as
shown on the ANR plan to Ben and Adrienne Stinson for $327,500. The Stinson's
planned to live in a dwelling they hoped to construct on the lots.
Attorney Hurley contends that thus, in Asack v. Board of Appeals of Westwood, 47
Mass. App. Ct. 733 (1999) the Court applied the doctrine in a case where two lots (only
one of which enjoyed the benefit of a variance) were held in common ownership.
Because the lot with the variance was adjacent to "the nonconforming lot," the variance
lot was available to ameliorate or eliminate the adjacent lot's nonconformity. As is
obvious from the facts, the Asack decision has no bearing here. Lots A -1 and A -2 each
had the benefit of the frontage variance. Whether or not they were held in "common
ownership" after the exercise of the variance, merger was not required as the lots were
nonconforming by virtue of the variance. This is not a case where merger would
eliminate or lessen a nonconformity. The underpinning and rationale of the merger
doctrine has no application here. Mr. Hurley stated that Mr. Otis has wholly failed to
meet the burden. Rather, he points to deeds in the chain of title and simply assumes that
there was such control. In the absence of evidence of common control, the arguments of
Mr. Otis fail. Mr. Hurley concluded that the Stinson's have been unfairly and
improperly delayed in their efforts to build a dwelling and to move into the
neighborhood. The abutter's efforts to delay and hinder their plans should be rejected.
Lot A -1 became a separate legal lot in 1985. Mr. Frederickson properly concluded that
Lot A -1 is a buildable lot. His decision should be affirmed.
Chairman Houseman stated that he would like to review the 1985 Zoning Ordinance.
Ferguson questioned how one would know if Sokolows were in control. Margolis stated
most lawyers are not zoning specialists and he can understand how this could be
overlooked. Ferguson stated that the Stinson's lawyer would have had no reason to
uncover this part of the case. Houseman stated he had made two site visits. He asked the
Stinson's if a mortgage was involved on the property. Mr. Stinson responded that there is
a mortgage on the property. Houseman asked if any attempt had been made to discover
the beneficiary of the trust. After much discussion the Board agreed that they needed
more time to read the case laws submitted by both counsels.
O'Brien: Motion to continue until the next scheduled meeting March 26, 2008 meeting.
Alternate member Noelle Faris is unable to attend the hearing. The Board will then
discuss a date for a Special Meeting. Attorney Harrington and Attorney Hurley will
submit evenings that they will be available. Houseman suggested that any new materials
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provided to the Board should be received at least one week before March 26, 2008
meeting. Seconded by Margolis. Motion carried 5 — 0. (Houseman, O'Brien, Ferguson,
Faris, and Margolis. In favor)