COMMONWEALTH OF MASSACHUSETTS:
MIDDLESEX
Zoning Board of Appeals
In the matter of
TRJ Finley Street Realty Trust
Applications for Permit to
Build, No. 821, 822
and 823 and Application
for house demolition
number 820
Docket No. 3171
APPEAL FROM DECISION OF THE
BUILDING INSPECTOR
Hearing: Tuesday, February 12, 2002
Decision: March 7, 2002
Members present:
Joseph Tulimieri
Patrick D. Dignan
Susan B. McShane, Esquire
OPINION OF THE BOARD
The decision of the Building Inspector to issue a demolition permit to demolish an existing structure on Finley Street, Arlington, i.e., permit number 820, as well as his decision to issue building permits to construct single-family residences on Finley Street, permits number 821, 823 and 822 respectively was appealed to the Zoning Board of Appeals by certain Appellants as follows: Laura Eastmant, the owner of certain lots described as Lots 112 and 113, Ella Boazova, the owner of certain lots described as Lots 114 and 115 and Eleanor Newhoff, the owner of certain lots described as 116, 117, 118 and 118½, all of said lots shown on a certain plan described as “Plan of Turkey Hill Terrace - Arlington, Massachusetts” dated October, 1912, C.A. Thayer, Engr., recorded in Plan Book 212, Plan 38, Middlesex South District Registry of
Deeds, Cambridge, Massachusetts.
The Appellants premised their appeal on certain alleged failures by the Building Inspector to comply with the terms of the Arlington Zoning Bylaw and the Mass. General Laws as set forth within that portion of their appeal document entitled “Grounds for Appeal.”
The appeal was filed pursuant to the provisions of the Arlington Zoning Bylaw, Section 10.10C and M.G.L. Ch. 40A, Sections 8 and 15.
The first ground of Appellants’ appeal alleges that no plan to extend the sewer system on Finley Street was presented to and approved by the Department of Public Health, the Engineering Department, the Inspector of Buildings or any other department of the Town of Arlington as allegedly required by M.G.L. Ch.83, Sections 1, 2 and 3 prior to the applications for permit to build being acted upon by the Building Inspector.
The second ground of appeal is that no plans for the construction of Finley Street, presently only partially paved, had been submitted to or required by the Engineering Department or the Inspector of Buildings despite the alleged history of Finley Street being a “paper road” surveyed in 1913, being recently and only partially paved, located on a hilly wooded area with acute slopes abutting Finley Street and the property of the Appellants.
The third ground of appeal alleges that no plan for drainage of ground surface water or management of storm waters was required by the Inspector of Buildings prior to issuance of the permits to build in accordance with provisions of M.G.L. Ch. 83, Section 5.
The fourth ground of appeal alleges that the principal of TRJ Finley Street Realty Trust prepared an incomplete drainage plan in connection with the Trust construction plans.
The fifth ground of appeal alleges failure on the part of the Building Inspector to address the issues of alleged erosion and the effects of alleged deforestation in the area where the construction will be taking place.
The sixth ground of appeal alleges a violation of Section 6.01 (a) of the Arlington Zoning Bylaw identified as “Reduction of Lot Areas and Separation of Lots.”
FINDINGS OF FACT AND DECISION OF THE BOARD
Appellants’ appeal alleges that the Trust purchased various lots and combined those lots, demolishing an existing building on one of the lots for the purpose of applying for and obtaining building permits for three separate single family residential structures on the recombined lots.
The TRJ Finley Street Realty Trust, hereinafter referred to as Finley acquired title to Lots 120 through 125 and Lots 119 and 119½ by way of two separate deeds on October 21 of 2001 from two separate owners.
Finley Street, for its entire length, is shown on a Board of Survey Plan and Profile at Finley Street approved on May 28 of 1918 by the Board of Survey for the Town of Arlington.
The subject lots are shown on the plan dated October 1912 entitled Turkey Hill Terrace, Arlington, Mass. by C.A. Thayer, Engr., mentioned previously.
The recombined lots, i.e., Lot 1, Lot 2 and Lot 3 are shown on separate survey plans by Bowditch & Crandall, Inc., dated Sept. 25, 2001. Those plans as well as the Turkey Hill Terrace plan and the two separate deeds mentioned previously were all submitted to the Board at the time of the Zoning Board of Appeals hearing by counsel for Finley, Attorney Robert J. Annese and those documents were accompanied by a Memorandum of Law and Fact in behalf of Finley.
The Board was also in receipt of a Memorandum from the Arlington Redevelopment Board, Alan McClennen, Jr., Secretary Ex Officio, dated Feb. 7, 2002, the substance of which indicated that the first five of Appellants’ grounds for appeal are not within the jurisdiction of the Zoning Board of Appeals and that the ground of appeal identified as item 6, asserting a combination and then a resubdivision of the properties in violation of Section 6.01 (a) of the Zoning Bylaw was not a violation of the Bylaw.
The substance of the Memorandum of the Arlington Redevelopment Board indicates that “land without structures (which describes the subject property after the demolition of the house at 19 Finley Street) may be reconfigured at will and only its eventual configuration will determine its suitability for use under the Zoning Bylaw.”
The substance of the Memorandum went on to indicate that “the Zoning Board of Appeals need only determine that the three house lots for which building permits were issued have sufficient area and frontage.”
The Appellants were represented by Arthur P. Kreiger of the law firm of Anderson & Kreiger and Attorney Kreiger submitted a letter, by hand, to the Zoning Board of Appeal accompanied by a street list for the Town of Arlington as well as copies of a Massachusetts Appeals Court case, Shea v. The Board of Appeals of Lexington and a Norfolk Superior Court case identified as Nuissi Construction. Inc. v. Joseph T. Heck and others both of which cases dealt with building permits issued in towns or cities where subdivision control had been adopted.
The Town of Arlington has never adopted subdivision control as prior to Jan. 1, 1937, a city or town could accept the provisions of a special statute providing for a Board of Survey and the Town took that action well prior to January 1 of 1937. M.G.L. C. 41, Section 73.
If a Board of Survey had been lawfully adopted by a town, as is the case with Arlington, prior to January 1 of 1937 and if the Board of Survey was actually in existence on December31 of 1936, the existence of the Board of Survey will continue until terminated under M.G.L.A. C. 41, Section 81 b. The existence of the Arlington Board of Survey has never been terminated in accordance with the provisions of that statute.
In a town which has a Board of Survey, plans for the opening of a private way for public use must be approved by the Board of Survey and since the subdivision control laws do not apply there is no necessity for the plan/plans to be approved by a Planning or Redevelopment Board.
The Board of Survey plans govern the layout or construction of ways shown on them and no public way is to be laid out, relocated, altered or widened, unless it conforms to the directions, width and grade shown on the approved Board of Survey plan. M.G.L.A. C. 41, Section 77.
Finley Street was laid out in 1918 and is shown on a survey plan approved by the Arlington Board of Survey, dated May 28 of 1918, and that plan was submitted to the Board of Appeals by Finley.
The Board heard from a representative of Finley at the time of the Zoning Board of Appeals hearing and learned that representatives of Finley had a number of meetings with the Town Engineer for the Town of Arlington in connection with Finley’s construction plans prior to the Building Inspector issuing the building permits which are the subject matter of this appeal. The Board also heard that Finley’s construction plans were examined with respect to fire and safety rules and regulations and with respect to the conformity of those construction plans with the standards set forth within the Board of Survey plan, dated May 28, 1918.
It was Appellants’ position at the time of the zoning hearing that the Building Inspector had no authority to issue building permits to Finley because that portion of Finley Street which the lots would abut had never physically been laid out at the time the building permits were applied for and issued by the Building Inspector. Appellants argued that there were no standards which Finley needed to comply with prior to constructing that portion of Finley Street abutting the lots, therefore, the Building Inspector was without authority to issue building permits because the lots had no frontage on a way.
The Board, however, found that the standards for the extended construction of Finley Street are fully set forth within the Board of Survey plan, dated May 28 of 1918 and that the building permits issued by the Building Inspector were in compliance with the Town of Arlington Zoning Bylaw as well as the provisions of the Massachusetts General Laws because Finley Street, whether paved or not, for its entire length was approved as a way as shown on the approved Board of Survey Plan.
The Board finds the first five grounds of appeal of the Appellants are not within the jurisdiction of the Zoning Board of Appeals and that the sixth ground of appeal has a faulty premise, that is, that Finley has taken land from one property that contains a building with the result that the land containing the building was rendered non-conforming. The recombined lots resulting in three new separate lots do not involve taking land from a lot with a building located on it as the existing building was demolished in accordance with the demolition permit (permit #820) issued by the Building Inspector. As stated in the Redevelopment Board Memorandum and as we specifically find, aside from the substance of that Memorandum, land without structures may be reconfigured at will and once reconfigured, the ultimate configuration will determine whether the
lots are buildable in accordance with the Zoning Bylaw.
For all of the above reasons, the Board voted unanimously to uphold the decision of the Building Inspector in issuing building permits number 821, 822 and 823 for the construction of three single family houses and building permit number 820 for the demolition of a house.
The Board hereby makes a detailed record of all its proceedings relative to this appeal; sets forth the reasons for its decisions and findings; directs that this record be filed in the office of the Redevelopment Board and in the office of the Town Clerk and shall be a public record; and that notice of this decision be made forthwith to each party in interest. Appeals to this decision, if any, shall be made pursuant to Section 17 of the Zoning Act (Massachusetts General Laws, Chapter 40A), and shall be filed within twenty days after the date of filing of such decision in the Office of the Town Clerk.
Joseph Tulimieri
Patrick D. Dignan
Susan B. McShane, Esquire
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