Furlong, et al. v. Zoning Board of Appeals of Salem, et al.
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 15-P-1174 Appeals Court MICHAEL F. FURLONG & another[1] vs. ZONING BOARD OF APPEALS OF SALEM & another.[2] No. 15-P-1174. Suffolk. October 7, 2016. – December 12, 2016. Present: Hanlon, Sullivan, & Blake, JJ. Zoning, Variance, Setback. Practice, Civil, Zoning appeal. Civil action commenced in the Land Court Department on February 17, 2012. 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. 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 […]