5 COLUMBUS SQUARE - ZBA (002) 5 Columbus Square (R-1 )
William & Louise
Pelletier �
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CIT' , "CE
DECISION ON THE PETITION OF WILLIAM & LOUISE PELLETIER REQUESTING
THE BUILDING INSPECTOR HAVE THE BOAT CRADLES REMOVED FROM THE
TIDAL FLATS IN FRONT OF 5 COLUMBUS SQUARE (R-1 )
A hearing-on this petition was held on September 19, 1984 with the following
Board Members present: James Hacker, Chairman; Messrs. , Gauthier, Luzinski, Strout,
and Associate Member Bencal. Notice of the hearing was sent to abutters and others
.and notices of the hearing were properly published in the Salem Evening News in
accordance with Massachusetts General Laws Chapter 40A.
The Petitioner is requesting the Board of Appeal have the Building Inspector order
the removal of the boat cradles from the tidal flats in front of 5 Columbus Sq.
(R-1 ) . Mr. Peter Haywood is the owner of the boat cradles.
After careful consideration and thoughtful deliberation, the Board of Appeal, by a
vote of four to one, Mr. Gauthier voting present, voted to uphold the Building
Inspectors decision.
This decision is based on the following terms and conditions:
1 . No more than sixty (60) boat cradles are to be floated at one time;
2. They are to be floated in the position shown in a photograph displayed
by Mr. Haywood showing the relative position and egress for small crafts
to the shore. Said photograph was taken approximately 1950.
James B. Hacker, Chairman
A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD AND 'CITY CLERK
APPEAL FP.O'A THIS DECISIDF7. 'F ANY, SHALL BE %:ADE PO'SUANT TO SECTION 17 OF THE MASS.
GENERAL LA71S, C-APT_R SDE. AND SHALL EE F:LEO 6!THIN 20 DAPS AFTER THE DATE OF FILING
OF THIS D'cCiS!CY I:4 THE C'ICE CP THE CITY CLERK.
P j i T TD WAS_ GENT IU L:a'C. C11A.PTER EDE, '•:CT:j;; 71. THE VARIANCE OR SPECIAL PERMIT
CRA:I"E:) Hcf:E::;. EHG.LL P: -i EFFECT UNTIL A CE:PY OF THECLCIEI;(I, EC ?;iG THE CERT•
_ ,. I-) NO A?PEAL HAS L-_EN FILED,
FlCkil,i\ CF 1HC '17y .u_c: ir4:: ,. DA.. HAS- ELb- .T_ D
E
OR THS' IF 'JA! i' APPE;_ F. E F!.E. -n' IT H S LEEN C n "! c.D OR a-;;TED IS
RECL-F:? IN THE S H ESSEX OF CccS A4.D INDEXED UFEcd THE NA -E OF THE OV.'NER
OF RECORD OR IS RECORDED AND NO1ED ON THE OWNER'S CERTIFICATE OF TITLE.
BOARD OF APPEAL
COMMONWEALTH OF •MASSACHUSETTS
ESSEX, SS. CITY OF SALEM
BOARD OF APPEALS
WILLIAM PELLETIER and
LOUISE PELLETIER, , .
Plaintiffs,
-vs- MEMORANDUM IN SUPPORT OF WINTER
ISLAND YACHT YARD
RICHARD T. MCINTOSH, Building
Inspector and Zoning Enforcement
Officer, Salem, Massachusetts,
and
PETER S. HAYWOOD d/b/a WINTER
ISLAND YACHT YARD,
Defendants.
STATEMENT OF FACTS
Since 1926, a boat yard has been operating on the property on which
the Winter Island Yacht Yard now operates . The boat yard is a nonconforming
use under G. L. c. 40A, S. 6, and the Salem -Zoning Ordance , Section VIIC.
The Salem Zoning Ordinance defines a waterfront boat yard as an open
area where boats may be stored and repaired.
The plaintiffs purchased a home next to the Yacht Yard in 1964.
The defendant, Peter S. Haywood, purchased the Yacht Yard in November,
1979. Almost all boats today are fiberglass.
At about the beginning of 1984, the plaintiffs complained to the
Zoning Enforcement Office of the City of Salem, Richard T. McIntosh,
that the defendant was violating his nonconforming use by fiberglassinq
boats on the property and storing boat cradles on the property. On
April 20, 1984, Mr. McIntosh responded that the nonconforming use of the
property as a boat yard may be continued, and that the fiberglassing of
boats and storage of boat cradles were part of the nonconforming use
(see appended letter) .
I. THE DEFENDANT HAS NOT EXCEEDED ITS VALID
NONCONFORMING USE.
The plaintiffs and the defendant here agree that the defendant has
had a valid nonconforming use as a boat yard, but the plaintiffs contend !,
that the defendant has "exceeded the scope" of that use.
The court in Powers v. Building Inspector of Barnstable, 363 Mass. ,
648, 653, 296 N. E. 2d 491, 495 (1973) , set out a three-pronged test of
whether a defendant has exceeded a nonconforming use.
Finally, in Bridgewater v. Chuckran, 351 Mass.
20, we said, at 23: "Recent cases have emphasized
three tests for determining whether current
use of property fits within the exemption granted
to nonconforming uses. (1) Whether the use reflects
the "nature and purpose" of the use prevailing
when the zoning by-law took effect . . . . . .
(citations omitted) . (2) Whether there is a difference
in the quality or character, as well as the degree,
of use . . . (citations omitted) . (3) Whether the
current use is ' different in kind in its effect on
the neighborhood. ' (citation omitted) .
In the case at hand, there has been no change in the quality or
character of the use of the Winter Island Yacht Yard. Since 1926 , the
defendant, Haywood, and his predecessors have been in the business of
building, repairing and storing boats . The defendant, Haywood, is still
in the business of building, repairing and storing boats, and the plaintiffs
complain of no other activities.
Because the defendant' s use is nonconforming does not mean it is
static. Implicit in the use of the land for a boat yard business is the
necessity of keeping pace with technology; if the defendant was allowed
to repair wooden boats only, the defendant would be out of businesss
since wooden boats are rare today. The character of the use does not
change solely by reason of an advance in technology. Vdayland V. Lee, 325
Mass. 637, 91 N. E. 2d 835 (1967) (where printing had been allowed under
the nonconforming use, the employment of an automatic printing press did
not exceed the use) ; Berliner v. Feldman, 363 Mass. 767, 298, N. E. 2d
153 (1973) (an inn, operating under a nonconforming use, which installed
insulation, heat, modern plumbing, did not exceed the use) .
The fact that improved and more efficient
instrumentalities are utilized in pursuit
of the use does not exclude it from the
category of an "existing use, " provided
these are ordinarily and reasonably adapted
to make that use available to the owner, and
the original- nature and purpose of the under-
taking remain unchanged. " Wayland v. Lee, 325
Mass. 637, 643, quoting from De Felice V.
Zoning Bd. of Appeals of East Haven , 130
Conn. 156, 162.
And, again, because the defendant's use is nonconforming does not
mean it is static. Implicit in the nature of the use of the land for a
boat yard business is that the proprietor will try to expand the volume of
business. Cases are legion which state that intensification of nonconforming
use does not exceed the use. Board of Selectmen of Blackstone v. Tellestone,
4 Mass. App. Ct. 311, 348, N.E. 2d 110 (1976) (it was error for lower
court to limit the nonconforming uses to' which the property has always
been put -- storage and repair of vehicles and a handyman' s business --
even though the business had grown) ; Building Commission of Medford v.
McGrath, 312 mass. 461, 45 N. E. 2d 265 (1942) (more horses being kept at
a riding school) ; McAlleer et al v. Board of Appeals of Barnstable, 361
Mass. 317, 280 N.E. 2d 166 (1972) (hotel being used year round rather
than seasonally) ; Cochran et al. v. Roemer et al. , 287 Mass . 500, 192
N. E. 58 (1933) (fuel company business greater in volume and conducted by
different methods) ; Sullivan v. Board of Appeals of Harwich, 15 Mass .
App. Ct. 286, 445 N. E. 2d 174 (1983) ; Building Inspector of Seekonk v.
Amaral et al. , 9 Mass. App. Ct. 869, 401 N.E. 2d 158 (1980) (defendant's
junk yard was not limited to four or five cars , the highest number
allowed at the time of the creation of the nonconforming use) ; Jahnigen
v. Staley, 225 A. 2d 277 (Md. 1967) (number of boats on defendant's
wharf increasing greatly, volume of cars on defendant' s lot increasing
from a few to thirty or forty did not exceed nonconforming use) .
The defendant' s business activities do not exceed the nonconforming
use.
The plaintiffs complain of the following acts on the defendant's
property:
1. storage of boat cradles ruined view from plaintiffs '
property;
2. storage of boat cradles block plaintiffs' marine
access to their property;
3. repairing fiberglass boats;
4. building fiberglass boats;
5. stones falling from defendant' s retaining wall
onto plaintiffs' property;
6. filling of land.
1. The plaintiffs have no right to a view from their home. Under
Massachusetts law, "an easement of light and air can be acquired only by
express grant, by covenant, or by implication where the light or air is
actually and absolutely necessary. " Novello v. Capringo, 276 Mass. 193,
196, 176 N.E. 809, 809-810 (1931) . See also G.L. C. 187 , s . 1.
2. The plaintiffs state not that the boat cradles complained of
are on the plaintiffs' property, but only that these cradles are on the
tidal flats in front of the plaintiffs ' home. In Massachusetts , owners
of land on seashore have title, subject to public right of navigation ,
fishing and fowling,. to low water mark or where tide ebbs more than th t
distance to one hundred( rods from the high water mark. Op. Atty. Gen. ,
Jan. 11, 1963, p. 103; Opinion of the Justices to Senate, 383 Mass. 895,
424 N.E. 2d 1092 (1981) . Where the cradles are on lots vaned by the
defendant, the plaintiffs must show that they use marine navigation to
. get to their home, and in the big ocean how exactly their marine navigation
is impeded by the defendants ' cradles, i.e. why they cannot go around
the cradles.
"In nuisance actions against private defendants it is (also) relevant,
although not decisive, to compare the cost to the defendant of an
injunctive remedy with the damage to the plaintiff. " Triangle Center, Inc.
v. Department of Public Works, 386 Mass. 858, 864, 438 N.E. 2d 798 , 802
(1982) .
The test is similar to that stated in the Restatement, 2d Torts, s .
826 and 829A. Section 826 states :
An intentional invasion of another' s interest
in the use and enjoyment of the land is
unreasonable if
(a) the gravity of the harm outweighs
the utility of the actor' s conduct, or
(b) the harm caused by the conduct is
serious and the financial burden of
compensating for this and similar harm
to other would not make the continuation of
the conduct not feasible.
Section 829A states :
An intentional invasion of another' s interest
in the use and enjoyment of land is unreasonable
if the harm resulting from the invasion
is severe and greater than the other should
be required to bear without compensation.
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I Here, the plaintiffs complain that the defendant is repairing and
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libuilding fiberglass boats. See Francisco v. Department of Institutions
i
l and Agencies, 13 N.J. Misc. 663, 180 A. 843 (1935) (occasional unpleasant
11 '
jiodor not nuisance) . The defendant is in a business which has great
; social utility. If the defendant was not permitted to fiberglass boats
Z' I
ion his property, he would be out of business. )The defendant, Haywood, j
I
'!would lose his means of livelihood. The injury to the plaintiffs because
Ilof the repair and occasional construction of fiberglass boats is slight;
I �
the injury the defendant would sustain in not being permitted to repair
I', I
and construct fiberglass boats is grave indeed. See Triangle Center, Inc.
I�
Iv. Department of Public Works, supra; Restatement, 2d Torts, s . 826.
Ij
3. The defendant will gladly remove any stones from its retaining
j
'!wall which may have fallen onto plaintiffs' property.
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COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS. EOARD OF
APPEALS
WILLIAM PELLETIER, ET AL,
Plaintiffs,
-vs-
RICHARD T. MCINTOSH., ET AL,
Defendants.
MEMORANDUM IN SUPPORT OF
WINTER IS-LAND YACHT YARD
LAW OFFICES OF
ROBERT W.WELCH +
AND
WILLIAM J. LUNDREGAN K
221 ESSEX STREET
SALEM,MA
COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS. - CITY OF SALEM
BOARD OF APPEALS
WILLIAM PELLETIER and
LOUISE PELLETIER,
Plaintiffs, -
-vs- MEMORANDUM IN SUPPORT OF WINTER
ISLAND YACHT YARD
RICHARD T. McINTOSH, Building
Inspector and Zoning Enforcement
Officer, Salem, Massachusetts,
and
PETER S. HAYV700D d/b/a WINTER
I ISLAND YACHT YARD,
Defendants.
STATEMENT OF FACTS
Since 1926, a boat yard has been operating on the property on which
the Winter Island Yacht Yard now operate s. •The boat yard is a nonconforming
use under G.L. c. 40A, s. 6, and the Salem Zoning Ordance, Section VIIC.
The Salem Zoning Ordinance defines a waterfront boat yard as an open
area where boats may be stored and repaired.
The plaintiffs purchased a home next to the Yacht Yard in 1964.
The defendant, Peter S. Haywood, purchased the Yacht Yard in November,
1979. Almost all boats today are fiberglass.
At about the beginning of 1984, the plaintiffs complained to the
Zoning Enforcement Office of the City of Salem, Richard T. McIntosh,
that the defendant was violating his nonconforming use by fiberglassing
boats on the property and storing boat cradles on the property. On
April 20, 1984, Mr. McIntosh responded that the nonconforming use of the -
property as a boat yard may be continued, and that the fiberglassing of
boats and storage of boat cradles were part of the nonconforming use
(see appended letter) .
I. THE DEFENDANT HAS NOT EXCEEDED ITS VALID
NONCONFORMING USE, _
The plaintiffs and the defendant here agree that the defendant has
had a valid nonconforming use as a boat yard, but the plaintiffs contend
that the defendant has "exceeded the ,scope" of that use.
f
i
The court in Powers v. Building Inspector of Barnstable, 363 Mass.
648, 653, 296 N.E. 2d. 491, 495 (.1973) , set out a three-pronged test of
whether a defendant has exceeded a nonconforming use.
Finally, in Bridgewater v. Chuckran, 351 Mass.
20, we said, at 23: "Recent cases have emphasized
three tests for determining whether current
use of property fits within the exemption granted
to nonconforming uses. (1) Whether the use reflects
the "nature and purpose" of the use prevailing
when the zoning by-law took effect . . . . . .
(citations omitted) . (2) Whether there is a difference
in the quality or character, as well as the degree,
of use (citations omitted) . (3) Whether the
current use is ' different in kind in its effect on
the neighborhood. ' (citation omitted) .
In the case at hand, there has been no change in the quality or
character of the use of the Winter Island Yacht Yard. Since 1926, the
defendant, Haywood, and his predecessors have been in the business of
building, repairing and storing boats. The defendant, Haywood, is still
in the business of building, repairing and storing boats, and the plaintiffs
complain of no other activities.
Because the defendant's use is nonconforming does not mean it is
static. Implicit in the use of the land for a boat yard business is the
necessity of keeping pace with technology; if the defendant was allowed
to repair wooden boats only, the defendant would be out of businesss
since wooden boats are rare today. The character of the use does not
change solely by reason of an advance in technology. Wayland v. Lee, 325
Mass. 637, 91 N.E. 2d 835 (1967) (where printing had been allowed under
the nonconforming use, the employment of an automatic printing press did
not exceed the use) ; Berliner v. Feldman, 363 Mass. 767, 298, N.E. 2d
153 (1973) (an inn, operating under a nonconforming use, which installed
insulation, heat, modern plumbing, did not exceed the use) .
The fact that improved and more efficient
instrumentalities are utilized in pursuit
of the use does not exclude it from the
category of an "existing use, " provided
these are ordinarily and reasonably adapted
to make that use available to the owner, ,and
the original nature and purpose of the under-
taking remain unchanged. " Wayland v. Lee, 325
Mass. 637, 643, quoting from De Felice v.
Zoning Bd. of Appeals of East Haven, 130
Conn. 156, 162.
And, again, because the defendant's use is nonconforming does not
mean it is static. Implicit in the nature of the use of the land for a
boat yard business is that the proprietor will try to expand the volume of
business. Cases are legion which state that intensification of nonconforming
use does not exceed the use. Board of Selectmen of Blackstone v. Tellestone,
4 Mass. App. Ct. 311, 348, N.E. 2d 110 (1976) (it was error for lower
court to limit the nonconforming uses, to which the property has always
been put -- storage and repair of vehicles and a handyman' s business --
even though the business had grown) ; Building Commission of Medford v.
McGrath, 31'2 Mass. 461, 45 N.E. 2d 265 (1942) (more horses being kept at
a riding school) ; McAlleer et al v. Board of Appeals of Barnstable, 361
Mass. 317, 280 N.E. 2d 166 (1972) (hotel being used year round rather
than seasonally) ; Cochran et al. v. Roemer et al., 287 Mass. 500, 192
N.E. 58 (1933) '(fuel company business greater in volume and conducted by
different methods) ; Sullivan v. Board of Appeals of Harwich, 15 Mass.
f
1 ,
App. Ct. 286, 445 N.E. 2d 174 (1983)_; Building Inspector of Seekonk v.
Amaral et al. , 9 Mass. App. Ct. 869, 401 N.E. 2d 156 (1980) (defendant's
junk yard was not limited to four or five cars, the highest number
allowed at the time of the creation of the nonconforming use) ; Sahnigen
v. Staley, 225 A. 2d 277 (Md. 1967) (number of boats on defendant's
wharf increasing greatly, volume of cars on defendant's lot increasing .
from a few to thirty or forty did not exceed nonconforming use) .
The defendant' s business activities do not exceed the nonconforming
use.
Theplaintiffscomplain of the following acts on the defendant's
property:
1. storage of boat cradles ruined view from plaintiffs '
property;
2. storage of boat cradles block plaintiffs' marine
access to their property; -
3. repairing fiberglass boats;
4, building fiberglass boats;
5. stones falling from defendant's retaining wall
onto plaintiffs' property;
6. filling of land.
1. The plaintiffs have no right to a view from their home. Under
Massachusetts law, "an easement of light and air can be acquired only by
express grant, by covenant, or by implication where the light or air is
actually and absolutely necessary." Novello v. Capringo, 276 Mass. 193,
196, 176 N.E. 809, 809-810 (1931) . See also G.L. c. 187, s . 1.
2. The plaintiffs state not that the boat cradles complained of
are on the plaintiffs' property, but only that these cradles are on the
tidal flats in front of the plaintiffs' home. in Massachusetts, owners
I
f
of land on seashore have title, subject to public right of navigation,
fishing and fowling,. to low water mark or_,where tide ebbs more than that
distance to one hundred rods from the high water mark. Op. Atty. Gen. ,
Jan. 11, 1963, p. 103; Opinion of the Justices to Senate, 383 Mass. 895,
424 N.E. 2d 1092 (1981) . Where the cradles are on lots owned by the
defendant, the plaintiffs must show that they use marine navigation to
get to their home, and in the big ocean how exactly their marine navigation
is impeded by the defendants' cradles, i.e. why they cannot go around
the cradles.
"In nuisance actions against private defendants it is (also) relevant,
although not decisive, to compare the cost to the defendant of an
injunctive remedy with the damage to the plaintiff. " Triangle Center, Inc.
v. Department of Public Works, 386 Mass. 858, 864, 438 N.B. 2d 798 , 802
(1982) .
The test is similar to that stated in the Restatement, 2d Torts, s.
826 and 829A. Section 826 states :
An intentional invasion of another's interest
in the use and enjoyment of the land is
unreasonable if
(a) the gravity of the harm outweighs
the utility of the actor's conduct, or
(b) the harm caused by the conduct is
serious and the financial burden of
compensating for this and similar harm
to. other would not make the continuation of
the conduct not feasible.
Section 829A states : -
An intentional invasion of another's interest
in the use and enjoyment of land .is unreasonable
if the harm resulting from the invasion
is severe and greater than the other should
be required to bear without compensation.
a
Here, the plaintiffs complain that the defendant is repairing and
building fiberglass boats. See Francisco v. Department of Institutions
and Agencies, 13 N.J. Misc. 663, 180 A. 843 (1935) (occasional unpleasant
odor not nuisance) . The defendant is in a business which has great
social utility. If the defendant was not permitted to fiberglass boats
on his property, he would be out of business. The defendant, Haywood,
would lose his means of livelihood. The injury to the plaintiffs because
of the repair and occasional construction of fiberglass boats is slight;
the injury the defendant would sustain in not being permitted to repair
and construct fiberglass boats is grave indeed. see Triangle Center, Inc.
v. Department of Public Works, supra; Restatement, 2d Torts, s . 826.
3. The defendant will gladly remove any stones from its retaining
wall which may have fallen onto plaintiffs' property.
t
a
COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS. BOARD OF
APPEALS
WILLIAM PELLETIER, ET AL, {
Plaintiffs ,
i
-vs-
RICHARD T. MCINTOSH., ET AL,
Defendants..
i
MEMORANDUM IN SUPPORT OF
WINTER ISLAND YACHT YARD
i
1
LAW OFFICES OF
ROBERT W.WELCH
AND
WILLIAM J. LUNDREGAN
221 ESSEX STREET
SALEM,MA
I
Board of Appeal
City of Salem
Salem, MA 01970
Re:
The undersigned hereby waives the time requirement, which the Board
has to act on the above referenced petition under Massachusetts General
Laws, Chapter 40A, Section 15.
FAA
J
1
WILLIAM J. LUNOREGAN
ATTORNEY AT LAW
221 ESSEX STREET
SALEM. MASSACHUSETTS 01970
744.0637
RESIDENCE 631-7323 �
d