Preview
Date Filed 2/20/2024 10:50 PM
Superior Court - Essex
Docket Number
Commonwealth of Massachusetts |
Superior Court
Essex, ss.
John and Anne Franco, Trustees of
The Beach Street Realty Trust
Vv. Docket No. 2 UT1CVO0 II5¢@
The Building Inspector of Rockport and
The Zoning Board of Appeals and the Town
Of Rockport
Complaint
Now comes the Plaintiffs, John and Anne Franco, Trustees, who make complaint as follows:
1. John and Anne Franco are natural persons who serve as trustees for a realty trust. The
Realty Trust is a nominee realty trust owning real estate on Beach Street in Rockport,
specifically including #54 and #48.
The Building Inspector of Rockport, Mr. Paul Orlando, is a public official of the Town of
Rockport who exercises authority under Town Bylaws and certain state statutes.
The Zoning Board of Appeals of Rockport, chaired by Mr. Alan Battistelli, is a board of
appeals, provided for in G. L. c. 40A, which also exercises authority under local Town
Bylaws.
The Town of Rockport is a municipality which is incorporated, as a separate community
from Gloucester in 1840. It is governed by a Selectmen-Open Town Meeting form of
government. It does not have a home rule charter.
The Fence
5. On October 18, 2023, the Building Inspector cited the Francos for a violation of a Town
Bylaw.
The Bylaw is question is a modification of the definition of a structure, which provides
that any combination of'a fence or wall or both, that exceeds 7 feet tall is a “Structure”
which must meet a 10 foot setback requirement.
The Francos neighbors at #54 have raised their properties’ grades in the last ten years,
while the property at 54 Beach Street has remained static. This has caused a long-term
problem with water pooling in the backyard of #54. The problem is significant and poses
long term threat to the property.
Date Filed 2/20/2024 10:50 PM
Superior Court - Essex
Docket Number
The house at #54 is the historic William J. Carter house.
The Francos conceived a project to shape and contour their back yard. They brought is a
small amount of fill, and eventually with DEP permission, shaped a water drainage plan.
The new fill raised the grade slightly, and requires a small block retaining wall in the
southern rear corner.
10. Concomitant with the reshaping and associated plantings, the Franco have also sought to
replace a 4 foot tall unpainted wooden picket fence, which predates their ownership of
the property and has been there since at least 1999
lt The 4 foot fence is a partition fence, setting the boundary line between the Francos and
their rear neighbors. Originally the rear neighbors, and the Francos’ property at #56 and
at #54 were all part of the same parcel. It was one of the earliest Properties subdivided in
Rockport, originally split up by Morris Hill circa 1860.
12. The 4 foot fence encloses land encompassing part of the recited premises for the Beaton
and Sena neighbors in the rear, according to the Francos’ surveyors, Vineyard
Engineering: Based upon the survey, the Francos have documented a claim of adverse
possession to the area within the wood picket pence.
13. The 4-foot wood picket fence is to be replaced by a 6 foot plastic-vinyl fence.
14. The 4-foot picket fence is in poor repair, it is unsightly and falling apart, and needs to be
replaced.
15. The new fence is set appreciably back from the small retaining wall
16 The project is accompanied by an intention to plant a number of bushes and shrubs and
approximately 16 red chanticleer pear trees. The pear trees were recommended by a
friend of Mrs. Francos.
17. The neighbors in the rear object to their sea view being blocked and have opposed the
Francos project at every turn, before the ConCom, before DEP, and now before the
Building Inspector and the ZBA.
18, The Bylaw in question, the amendment to the definition of structure, was originally put
into place in 2012 encompassing a command that any combination of wall and/or fence
amounting to 6 feet would trigger the bylaw and the setback. The Bylaw in question was
most recently amended in 2018 to raise the limit to 7 feet, at the request of the Building
Inspector, to comply with the Building Code. |
19. The Building Code indicates that fence under 7 feet affirmative does not require
permitting, and is in fact exempt from permitting requirements.
Date Filed 2/20/2024 10:50 PM
Superior Court - Essex
Docket Number
20. The Francos, at the direction of the Building Inspector, applied to the Zoning Board of
Appeals for relief seeking both a special permit, in the event that the Building Inspector
was right, and an appeal to convince the ZBA he was wrong.
21 The ZBA continued its hearing from November to January, seeking a drawing from the
Francos’ surveyor to provide additional information about heights and distances from
other structures.
22. In its January Meeting the ZBA heard from the Francos, the opposing and supporting
neighbors, either orally or in writing. The ZBA then closed the hearing and voted and
denied all relief to the Francos.
23. The Decision of the Board was filed on February 15, 2024 with the Town Clerk. This
timely appeal follows.
Count I— Appeal Under Chapter 40A
24. Repeating and Reaffirming as above, the Francos plead that the decision of the of the
ZBA, affirming the Building Iispector was erroneous.
25. The ZBA exceeded their authority.
Grandfathering
26. The pre-existing 4-foot fence is grandfathered from a bylaw enacted decades after it was
erected. The Francos have a right to replace their 4-foot-fence with a 6-foot fence as a
replacement. The application of the bylaw, by the Building Inspector and the ZBA.
violates G. L. c. 40A §6 (“(“...a zoning ordinance or by-law shall not apply to structures or
uses lawfully in existence” before the adoption of a zoning bylaw”).
27. The fence is an existing vested right protected from any interference by the Town or its
officials.
28 The failure to accord grandfathering violates constitutional prohibitions against Ex Post
Facto rules, against Takings without compensation, the requirements of Due Process, and
the violation of the State Constitution’s standing laws clause. The failure to accord
grandfathering to the Francos’ fence also violates the rules on nonconforming structures
contained in both Chapter 40A and the Town’s own Zoning Bylaw.
Building Inspector Statute
29. Prior to its amendment, the Rockport Zoning Bylaw’s definition of a structure was
identical to that in the Building Inspector Statute. G. L. c. 143 §1.
30. The change encroaches onto an area of law regulated by State Statute which the Town’s
bylaws may not contravene. i
31. The Building Inspector Statute informs the interpretation and limits of zoning bylaws.
Fences are not structures under the Statute. i
Date Filed 2/20/2024 10:50 PM
Superior Court - Essex
Docket Number
Common Law
32. Towns may not adopt bylaws in derogation of the common law relating to lateral support
and retaining walls.
33. Where the Francos and their neighbors have obligations to each other given different
grades, implied in law, the Town is not free to change those rule to the Franco’s
detriment.
Building Code
34. The Town acknowledged in 2018, when Town Meeting was convinced to change the
fence limit from 6 feet to 7 feet to match the Building Code, that the Building Code
preempts contrary bylaws.
35. The state’s ability to preempt local bylaws is undoubted although one source is G. L. c.
40A §3 which gives the Building Code preeminence over contrary zoning rules.
36. The fences under the height of 7 feet are expressly unregulated by the authority of the
Building Code. The Francos fence is 6 feet tall. The ZBA.and Building Inspector cannot
apply the Zoning Bylaw in a fashion contrary to the Building Code.
37. The Bylaw also contravenes the Building Code’s provisions regarding retaining walls,
which the Francos are in compliance with.
Fence Viewer Statute
38. The ZBA and Building Inspector’s interpretation of the Bylaw, as applied to the Franco is
contravened and preempted by the Fence Viewer Statute, G. L. c. 49.
39. When a fence is boundary between land, as in this case, it must be at least 4 feet high and
kept in good repair or replaced as necessary.
40. The partitioning of the property of Morris Hill and his successors leaves the property at
#54 subject to the fence viewer statute’s requirements.
41. The Town may not, by bylaw, prohibit or punish the Francos for doing things which they
have a duty to do under State law.
42. The Francos have an affirmative statutory and common law duty to maintain a good
partition fence.
Existing Grade
43. The Building Inspector and ZBA erroneously interpreted “existing grade.”
Date Filed 2/20/2024 10:50 PM
Superior Court - Essex
Docket Number
,
44, The case law provides some limited guidance, indicating the grade must be measured
from average of the property.
45. The Francos have been the subject of extensive environmental regulation and supervision
during the course of their project, which is currently approved by DEP after the Rockport
ConCom failed to make a decision in a timely fashion.
46 The grade approved by DEP must be interpreted as the correct guide. The overriding
state agency, with its expertise has made a decision. The Town participated in that
process, receiving notice of the DEP proceedings and having previously failed to act.
Therefore they Town must in this case count the grade as approved by DEP which does
not result in any violation, even by the ZBA and Building Inspector’s own interpretation.
47. The Building Inspector failed to comply with Rockport’s Zoning Bylaw which requires
the Inspector have a pre-existing and published measure for how to measure the height of
buildings.
Set Back
48. The Fence is set back from the stone wall, appreciably.
49. The Building Inspector and ZBA have erroneously treated them as.a combination to
aggregate the height of the retaining wall with the fence.
50. This is a clear factual error. The distance matters, for there certainly could not be
unlimited combination over unlimited distance or amount. Such an interpretation would
be absurd and, amongst other things, prohibit almost all grade changes.
Mistake of Law
51. The Building Inspector has discussed, with Mr. Franco on numerous times the prior
filling projects of the surrounding neighbors, who changed-grades and some of whom
fenced ontop of the grade change.
52. Discussing, and complaining about the neighbors, Mr. Franco was assured on numerous
occasions that he too could fill in like manner.
53. The filling is intimately connected to the grade and the fence height issue, as interpreted
by the Building Inspector.
54, Massachusetts has common law which provides relief to, those who are induced into legal
error based on assurances by enforcing officials.
55. Based on the Building Inspector’s approval of the neighbors projects, and the verbal
assurances that he too could proceed in like manner, Mr! Franco has apparently been
lured into legal error (as interpreted by the ZBA). Given that such error (if any) was
Date Filed 2/20/2024 10:50 PM
Superior Court - Essex
Docket Number
induced by specific assurances from the government officials in charge of enforcing such
rules, the Francos are now entitled to relief in their specific case.
56. Where a person is affirmatively misled by an interpretation of law by an enforcing
official, a mistake of law occurs because the reliance is reasonable and will afford
equitable relief.
Count I - Certiorari
57. Repeating and reaffirming as above, the Plaintiffs are entitled to Certiorari relief.
58. The facts above lay out a sufficient case for certiorari relief.
59. The proceedings of the ZBA and Building Inspector have committed serious legal error
and constitutional error in applying and interpreting the Town’s bylaw provision.
60. The Plaintiffs have suffered a manifest injustice affecting their property line, to undo their
project, and in essence grant a view easement without consideration to the rear neighbors.
The boundary may be changed, given the adverse possession claimed, if the Francos must
setback the fence.
61 The Francos are being treated differently than their neighbors, and being punished for
having been the last in the neighborhood to fill.
62. The Francos have a right to fill, with environmental permissions, to make use of their
land and protect their property.
63. The Building Inspector and ZBA, being quasi-judicial in this capacity, meet the definition
for the application of certiorari relief. The Building Inspector has threated fined and the
ZBA has held a hearing and issued a decision.
Count III — Declaratory Relief
64. The Francos have, at 54 Beach Street, another fence near the top of a retaining wall.
65. This fence is a wooden stockade fence at the front of the unnumbered parcel conveyed on
the deed to #54. The unnumbered parcel is sunk from the level of the street.
66. The fence in the front is actually falling apart. Part of it has rotted and collapsed.
67. The front stockade fence has also been there for decades, preexisting the new definition
of structure including fence/wall combinations.
i
68. The Building Inspector has given a preliminary opinion; based on the other fence, that
any repair or replacement would be subject to the new definition of structure.
i
Date Filed 2/20/2024 10:50 PM
Superior Court - Essex
Docket Number
69. The Francos maintain, for reasons above, that this interpretation is impossible, illegal,
absurd, and unconstitutional.
70. The Francos ask for a declaration about their right to repair and replace their existing
fences, especially arguing that they are preexisting structures not subject to the new
bylaw.
Conclusion
Wherefore the Francos ask for relief.
Respectfully Submitted,
John and Anne Franco, Trustees
By their Attorney
/S/ Michael Walsh
Michael Walsh
BBO 681001
Walsh & Walsh LLP
PO Box 9
Lynnfield, MA 01940
617-257-5496
Walsh.lynnfield@gmail.com
Date Filed 2/20/2024 10:50 PM
Superior Court - Essex
Docket Number
INCORPORATED.
TOWN OF ROCKPORT, MASSACHUSETTS
BOARD OF APPEALS
February 15, 2024
Michael Walsh
Walsh & Walsh LLP
PO Box 9
Lynnfield, MA 01940
Dear Mr. Michael Walsh,
Enclosed herewith you will find a copy of the Board's decision on your Application for Zoning
Relief.
Appeals from this decision, if any, shall be made pursuant to MGL Chapter 40A, Section 17 and
shall be filed.within twenty (20) days of the date the decision was received and stamped by the
Town Clerk’s Office, February 15.2024 as it appears on your copy.
This decision, affecting the rights of the owner, must be recorded with the Southern Essex
County Registry of Deeds in Salem. The form for recording this decision prepared by the Town
Clerk may be obtained from that office after this 20-day appeal period has expired. You may
pick up the form on March 6, 2024.
Very truly yours,
Men Liatiizte:
Alan Battistelli
Chairman
Date Filed 2/20/2024 10:50 PM
Superior Court - Essex
Docket Number
No. 231107 Map 17
Page 1 of 3 Lot 52/53
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CHUS
TOWN OF ROCKPORT, MASSACHUSETTS
BOARD OF APPEALS
Petition of John and Anne R. Franco
(Case No. 231107) ( :
A virtual public hearing was held via Zoom video on Wednesday, November 29, 2023,
beginning at 7:43 p.m. and was continued to. Wednesday, January 31, 2024, when it was closed,
on the petition of John and Anne R. Franco to overtum the decision of the Building Inspector
that deemed a recently constructed fence to be a structure as it was over the permitted height
limit, thus requiring relief, at 54 Beach Street, Rockport. The petitioners were represented by
Michael Walsh, Esq., PO Box 9, Lynnfield, MA 01940. Members of the Board sitting’ were
Alan Battistelli (presiding), Laura Moisin, Tacy San Antonio, Richard York and Peter
Bergholtz..
The Board finds that the hearings were duly held and that notice thereof was duly given in
accordance with the Rockport Zoning Bylaw (the “Bylaw”) and the General Laws.
Property Description
Petitioners’ property is in a Residential A District on the west side of Beach Street overlooking
Back Beach and includes two lots totaling 18,974 square feet, There is a nonconforming single-
family dwelling on lot 52 with nonconforming setbacks of 12 feet 7 inches at the front where 20
feet are required and 10 feet 7 inches on the left side where 15 feet is the Bylaw standard. The
residence is approximately 58 feet from the rear property line. Lot 52 is nonconforming to the
12,000 square foot standard at 11,760 square feet.
The subject of this petition is a recently installed fence on the lot line with a 2 inch setback,
running 152 feet across the rear of both lots and approximately 46 feet down the left side of lot
52. The fence configuration consists of a cement block retaining wall, protruding 2.5 feet above
the original grade with a white plastic fence on top of the cement blocks that is 6 feet high. The
resulting height is 8.5 feet.above the original grade. The Building Inspector has determined that
the height exceeds the 7 foot fence height limit allowed in the Bylaw and that the
construction is a structure which must conform to setback requirements.
Therefore, the petitioners must obtain relief or move or adjust the structure.
Date Filed 2/20/2024 10:50 PM
Superior Court - Essex
Docket Number
No. 231107 Map 17
Page 2 of 3 Lot 52/53
Petitioners’ Proposal
The petitioners are, in this hearing, appealing the decision of the Building Inspector conceming
this fence, arguing that filled land has changed the property to a new original grade, that the
height calculation is inappropriate and that, if relief is needed, the fence is not detrimental to the
neighborhood.
There was additional testimony along with a letter and exhibits from Daniel J. Pasquarello, Esq.
of Pasqerello, Fink and Haddad LLC, 185 Devonshire Street, Boston, MA 02110, the attorney of
the direct abutters Paul Sena and Patty Wegmann. Attorney Pasquarello countered Attorney
Walsh’s claims conceming the wall’s conformity. He expressed the concerns for the effect of
the wall on his clients and their property and reviewed the nonconformity in detail.
Other letters expressing distain for the fence project and its effect on the neighborhood were
received from abutters James Beaton, 43 Granite Street and Jay and Julie Boyle, 35 Granite
Street. Planning Board member Harry Korslund submitted his concerns about nonconformities
concerning the fence height and the fill added to the property.
Bylaw Principles
Bylaw Section Il Definitions defines Fence: Any structure constructed of rail, timber, boards,
metal, masonry, stone, earthworks such as berms, or other man-made objects or materials, which
prevents intrusion, marks a boundary, provides visual screening, or provides security from noise
wind or dust.
The Bylaw definition of Structure: A combination of materials assembled at a fixed location, for
example a building, mobile home, tent, shed, swimming pool, deck or storage bin. The term
structure shall include walls and fences or a combination thereof if over seven feet high
measured from the existing grade.
Findings and Relief
It is the considered judgment of this Board that the new cinder block retaining wall does not.
create a new original grade level for the petitioners’ property. The Bylaw Definitions Section II
clearly describes Fences and Structures and leads us to conclude that the original grade of the
property and not the filled grade or the top of the new wall is the measuring point. Therefore, the
fence height is over 7 feet at 8.5 feet and is definitely a Structure and must conform to setback
restrictions. Special Permit relief is required which needs a finding of “ not detrimental to the
neighborhood”. Visual impressions of the sight, letters and testimony clearly provide a strong
negative reaction to this project, which is of significant detriment to this neighborhood.
Date Filed 2/20/2024 10:50 PM
Superior Court - Essex
Docket Number
No. 231107 Map 17
Page 3 of 3 Lot 52/53
Accordingly, by a unanimous roll call vote the Board upholds the enforcement letter of the
Building Inspector dated October 18, 2023 and denies any relief for the nonconformity.
We, Kictizlate:
Alan Battistelli, Chairman
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Date Filed 2/20/2024 10:50 PM Superior Court - Essex Docket Number Commonwealth of Massachusetts | Superior Court Essex, ss. John and Anne Franco, Trustees of The Beach Street Realty Trust Vv. Docket No. 2 UT1CVO0 II5¢@ The Building Inspector of Rockport and The Zoning Board of Appeals and the Town Of Rockport Complaint Now comes the Plaintiffs, John and Anne Franco, Trustees, who make complaint as follows: 1. John and Anne Franco are natural persons who serve as trustees for a realty trust. The Realty Trust is a nominee realty trust owning real estate on Beach Street in Rockport, specifically including #54 and #48. The Building Inspector of Rockport, Mr. Paul Orlando, is a public official of the Town of Rockport who exercises authority under Town Bylaws and certain state statutes. The Zoning Board of Appeals of Rockport, chaired by Mr. Alan Battistelli, is a board of appeals, provided for in G. L. c. 40A, which also exercises authority under local Town Bylaws. The Town of Rockport is a municipality which is incorporated, as a separate community from Gloucester in 1840. It is governed by a Selectmen-Open Town Meeting form of government. It does not have a home rule charter. The Fence 5. On October 18, 2023, the Building Inspector cited the Francos for a violation of a Town Bylaw. The Bylaw is question is a modification of the definition of a structure, which provides that any combination of'a fence or wall or both, that exceeds 7 feet tall is a “Structure” which must meet a 10 foot setback requirement. The Francos neighbors at #54 have raised their properties’ grades in the last ten years, while the property at 54 Beach Street has remained static. This has caused a long-term problem with water pooling in the backyard of #54. The problem is significant and poses long term threat to the property. Date Filed 2/20/2024 10:50 PM Superior Court - Essex Docket Number The house at #54 is the historic William J. Carter house. The Francos conceived a project to shape and contour their back yard. They brought is a small amount of fill, and eventually with DEP permission, shaped a water drainage plan. The new fill raised the grade slightly, and requires a small block retaining wall in the southern rear corner. 10. Concomitant with the reshaping and associated plantings, the Franco have also sought to replace a 4 foot tall unpainted wooden picket fence, which predates their ownership of the property and has been there since at least 1999 lt The 4 foot fence is a partition fence, setting the boundary line between the Francos and their rear neighbors. Originally the rear neighbors, and the Francos’ property at #56 and at #54 were all part of the same parcel. It was one of the earliest Properties subdivided in Rockport, originally split up by Morris Hill circa 1860. 12. The 4 foot fence encloses land encompassing part of the recited premises for the Beaton and Sena neighbors in the rear, according to the Francos’ surveyors, Vineyard Engineering: Based upon the survey, the Francos have documented a claim of adverse possession to the area within the wood picket pence. 13. The 4-foot wood picket fence is to be replaced by a 6 foot plastic-vinyl fence. 14. The 4-foot picket fence is in poor repair, it is unsightly and falling apart, and needs to be replaced. 15. The new fence is set appreciably back from the small retaining wall 16 The project is accompanied by an intention to plant a number of bushes and shrubs and approximately 16 red chanticleer pear trees. The pear trees were recommended by a friend of Mrs. Francos. 17. The neighbors in the rear object to their sea view being blocked and have opposed the Francos project at every turn, before the ConCom, before DEP, and now before the Building Inspector and the ZBA. 18, The Bylaw in question, the amendment to the definition of structure, was originally put into place in 2012 encompassing a command that any combination of wall and/or fence amounting to 6 feet would trigger the bylaw and the setback. The Bylaw in question was most recently amended in 2018 to raise the limit to 7 feet, at the request of the Building Inspector, to comply with the Building Code. | 19. The Building Code indicates that fence under 7 feet affirmative does not require permitting, and is in fact exempt from permitting requirements. Date Filed 2/20/2024 10:50 PM Superior Court - Essex Docket Number 20. The Francos, at the direction of the Building Inspector, applied to the Zoning Board of Appeals for relief seeking both a special permit, in the event that the Building Inspector was right, and an appeal to convince the ZBA he was wrong. 21 The ZBA continued its hearing from November to January, seeking a drawing from the Francos’ surveyor to provide additional information about heights and distances from other structures. 22. In its January Meeting the ZBA heard from the Francos, the opposing and supporting neighbors, either orally or in writing. The ZBA then closed the hearing and voted and denied all relief to the Francos. 23. The Decision of the Board was filed on February 15, 2024 with the Town Clerk. This timely appeal follows. Count I— Appeal Under Chapter 40A 24. Repeating and Reaffirming as above, the Francos plead that the decision of the of the ZBA, affirming the Building Iispector was erroneous. 25. The ZBA exceeded their authority. Grandfathering 26. The pre-existing 4-foot fence is grandfathered from a bylaw enacted decades after it was erected. The Francos have a right to replace their 4-foot-fence with a 6-foot fence as a replacement. The application of the bylaw, by the Building Inspector and the ZBA. violates G. L. c. 40A §6 (“(“...a zoning ordinance or by-law shall not apply to structures or uses lawfully in existence” before the adoption of a zoning bylaw”). 27. The fence is an existing vested right protected from any interference by the Town or its officials. 28 The failure to accord grandfathering violates constitutional prohibitions against Ex Post Facto rules, against Takings without compensation, the requirements of Due Process, and the violation of the State Constitution’s standing laws clause. The failure to accord grandfathering to the Francos’ fence also violates the rules on nonconforming structures contained in both Chapter 40A and the Town’s own Zoning Bylaw. Building Inspector Statute 29. Prior to its amendment, the Rockport Zoning Bylaw’s definition of a structure was identical to that in the Building Inspector Statute. G. L. c. 143 §1. 30. The change encroaches onto an area of law regulated by State Statute which the Town’s bylaws may not contravene. i 31. The Building Inspector Statute informs the interpretation and limits of zoning bylaws. Fences are not structures under the Statute. i Date Filed 2/20/2024 10:50 PM Superior Court - Essex Docket Number Common Law 32. Towns may not adopt bylaws in derogation of the common law relating to lateral support and retaining walls. 33. Where the Francos and their neighbors have obligations to each other given different grades, implied in law, the Town is not free to change those rule to the Franco’s detriment. Building Code 34. The Town acknowledged in 2018, when Town Meeting was convinced to change the fence limit from 6 feet to 7 feet to match the Building Code, that the Building Code preempts contrary bylaws. 35. The state’s ability to preempt local bylaws is undoubted although one source is G. L. c. 40A §3 which gives the Building Code preeminence over contrary zoning rules. 36. The fences under the height of 7 feet are expressly unregulated by the authority of the Building Code. The Francos fence is 6 feet tall. The ZBA.and Building Inspector cannot apply the Zoning Bylaw in a fashion contrary to the Building Code. 37. The Bylaw also contravenes the Building Code’s provisions regarding retaining walls, which the Francos are in compliance with. Fence Viewer Statute 38. The ZBA and Building Inspector’s interpretation of the Bylaw, as applied to the Franco is contravened and preempted by the Fence Viewer Statute, G. L. c. 49. 39. When a fence is boundary between land, as in this case, it must be at least 4 feet high and kept in good repair or replaced as necessary. 40. The partitioning of the property of Morris Hill and his successors leaves the property at #54 subject to the fence viewer statute’s requirements. 41. The Town may not, by bylaw, prohibit or punish the Francos for doing things which they have a duty to do under State law. 42. The Francos have an affirmative statutory and common law duty to maintain a good partition fence. Existing Grade 43. The Building Inspector and ZBA erroneously interpreted “existing grade.” Date Filed 2/20/2024 10:50 PM Superior Court - Essex Docket Number , 44, The case law provides some limited guidance, indicating the grade must be measured from average of the property. 45. The Francos have been the subject of extensive environmental regulation and supervision during the course of their project, which is currently approved by DEP after the Rockport ConCom failed to make a decision in a timely fashion. 46 The grade approved by DEP must be interpreted as the correct guide. The overriding state agency, with its expertise has made a decision. The Town participated in that process, receiving notice of the DEP proceedings and having previously failed to act. Therefore they Town must in this case count the grade as approved by DEP which does not result in any violation, even by the ZBA and Building Inspector’s own interpretation. 47. The Building Inspector failed to comply with Rockport’s Zoning Bylaw which requires the Inspector have a pre-existing and published measure for how to measure the height of buildings. Set Back 48. The Fence is set back from the stone wall, appreciably. 49. The Building Inspector and ZBA have erroneously treated them as.a combination to aggregate the height of the retaining wall with the fence. 50. This is a clear factual error. The distance matters, for there certainly could not be unlimited combination over unlimited distance or amount. Such an interpretation would be absurd and, amongst other things, prohibit almost all grade changes. Mistake of Law 51. The Building Inspector has discussed, with Mr. Franco on numerous times the prior filling projects of the surrounding neighbors, who changed-grades and some of whom fenced ontop of the grade change. 52. Discussing, and complaining about the neighbors, Mr. Franco was assured on numerous occasions that he too could fill in like manner. 53. The filling is intimately connected to the grade and the fence height issue, as interpreted by the Building Inspector. 54, Massachusetts has common law which provides relief to, those who are induced into legal error based on assurances by enforcing officials. 55. Based on the Building Inspector’s approval of the neighbors projects, and the verbal assurances that he too could proceed in like manner, Mr! Franco has apparently been lured into legal error (as interpreted by the ZBA). Given that such error (if any) was Date Filed 2/20/2024 10:50 PM Superior Court - Essex Docket Number induced by specific assurances from the government officials in charge of enforcing such rules, the Francos are now entitled to relief in their specific case. 56. Where a person is affirmatively misled by an interpretation of law by an enforcing official, a mistake of law occurs because the reliance is reasonable and will afford equitable relief. Count I - Certiorari 57. Repeating and reaffirming as above, the Plaintiffs are entitled to Certiorari relief. 58. The facts above lay out a sufficient case for certiorari relief. 59. The proceedings of the ZBA and Building Inspector have committed serious legal error and constitutional error in applying and interpreting the Town’s bylaw provision. 60. The Plaintiffs have suffered a manifest injustice affecting their property line, to undo their project, and in essence grant a view easement without consideration to the rear neighbors. The boundary may be changed, given the adverse possession claimed, if the Francos must setback the fence. 61 The Francos are being treated differently than their neighbors, and being punished for having been the last in the neighborhood to fill. 62. The Francos have a right to fill, with environmental permissions, to make use of their land and protect their property. 63. The Building Inspector and ZBA, being quasi-judicial in this capacity, meet the definition for the application of certiorari relief. The Building Inspector has threated fined and the ZBA has held a hearing and issued a decision. Count III — Declaratory Relief 64. The Francos have, at 54 Beach Street, another fence near the top of a retaining wall. 65. This fence is a wooden stockade fence at the front of the unnumbered parcel conveyed on the deed to #54. The unnumbered parcel is sunk from the level of the street. 66. The fence in the front is actually falling apart. Part of it has rotted and collapsed. 67. The front stockade fence has also been there for decades, preexisting the new definition of structure including fence/wall combinations. i 68. The Building Inspector has given a preliminary opinion; based on the other fence, that any repair or replacement would be subject to the new definition of structure. i Date Filed 2/20/2024 10:50 PM Superior Court - Essex Docket Number 69. The Francos maintain, for reasons above, that this interpretation is impossible, illegal, absurd, and unconstitutional. 70. The Francos ask for a declaration about their right to repair and replace their existing fences, especially arguing that they are preexisting structures not subject to the new bylaw. Conclusion Wherefore the Francos ask for relief. Respectfully Submitted, John and Anne Franco, Trustees By their Attorney /S/ Michael Walsh Michael Walsh BBO 681001 Walsh & Walsh LLP PO Box 9 Lynnfield, MA 01940 617-257-5496 Walsh.lynnfield@gmail.com Date Filed 2/20/2024 10:50 PM Superior Court - Essex Docket Number INCORPORATED. TOWN OF ROCKPORT, MASSACHUSETTS BOARD OF APPEALS February 15, 2024 Michael Walsh Walsh & Walsh LLP PO Box 9 Lynnfield, MA 01940 Dear Mr. Michael Walsh, Enclosed herewith you will find a copy of the Board's decision on your Application for Zoning Relief. Appeals from this decision, if any, shall be made pursuant to MGL Chapter 40A, Section 17 and shall be filed.within twenty (20) days of the date the decision was received and stamped by the Town Clerk’s Office, February 15.2024 as it appears on your copy. This decision, affecting the rights of the owner, must be recorded with the Southern Essex County Registry of Deeds in Salem. The form for recording this decision prepared by the Town Clerk may be obtained from that office after this 20-day appeal period has expired. You may pick up the form on March 6, 2024. Very truly yours, Men Liatiizte: Alan Battistelli Chairman Date Filed 2/20/2024 10:50 PM Superior Court - Essex Docket Number No. 231107 Map 17 Page 1 of 3 Lot 52/53 com ROCs 4 SS Tn CORPORATED zx, fade. CHUS TOWN OF ROCKPORT, MASSACHUSETTS BOARD OF APPEALS Petition of John and Anne R. Franco (Case No. 231107) ( : A virtual public hearing was held via Zoom video on Wednesday, November 29, 2023, beginning at 7:43 p.m. and was continued to. Wednesday, January 31, 2024, when it was closed, on the petition of John and Anne R. Franco to overtum the decision of the Building Inspector that deemed a recently constructed fence to be a structure as it was over the permitted height limit, thus requiring relief, at 54 Beach Street, Rockport. The petitioners were represented by Michael Walsh, Esq., PO Box 9, Lynnfield, MA 01940. Members of the Board sitting’ were Alan Battistelli (presiding), Laura Moisin, Tacy San Antonio, Richard York and Peter Bergholtz.. The Board finds that the hearings were duly held and that notice thereof was duly given in accordance with the Rockport Zoning Bylaw (the “Bylaw”) and the General Laws. Property Description Petitioners’ property is in a Residential A District on the west side of Beach Street overlooking Back Beach and includes two lots totaling 18,974 square feet, There is a nonconforming single- family dwelling on lot 52 with nonconforming setbacks of 12 feet 7 inches at the front where 20 feet are required and 10 feet 7 inches on the left side where 15 feet is the Bylaw standard. The residence is approximately 58 feet from the rear property line. Lot 52 is nonconforming to the 12,000 square foot standard at 11,760 square feet. The subject of this petition is a recently installed fence on the lot line with a 2 inch setback, running 152 feet across the rear of both lots and approximately 46 feet down the left side of lot 52. The fence configuration consists of a cement block retaining wall, protruding 2.5 feet above the original grade with a white plastic fence on top of the cement blocks that is 6 feet high. The resulting height is 8.5 feet.above the original grade. The Building Inspector has determined that the height exceeds the 7 foot fence height limit allowed in the Bylaw and that the construction is a structure which must conform to setback requirements. Therefore, the petitioners must obtain relief or move or adjust the structure. Date Filed 2/20/2024 10:50 PM Superior Court - Essex Docket Number No. 231107 Map 17 Page 2 of 3 Lot 52/53 Petitioners’ Proposal The petitioners are, in this hearing, appealing the decision of the Building Inspector conceming this fence, arguing that filled land has changed the property to a new original grade, that the height calculation is inappropriate and that, if relief is needed, the fence is not detrimental to the neighborhood. There was additional testimony along with a letter and exhibits from Daniel J. Pasquarello, Esq. of Pasqerello, Fink and Haddad LLC, 185 Devonshire Street, Boston, MA 02110, the attorney of the direct abutters Paul Sena and Patty Wegmann. Attorney Pasquarello countered Attorney Walsh’s claims conceming the wall’s conformity. He expressed the concerns for the effect of the wall on his clients and their property and reviewed the nonconformity in detail. Other letters expressing distain for the fence project and its effect on the neighborhood were received from abutters James Beaton, 43 Granite Street and Jay and Julie Boyle, 35 Granite Street. Planning Board member Harry Korslund submitted his concerns about nonconformities concerning the fence height and the fill added to the property. Bylaw Principles Bylaw Section Il Definitions defines Fence: Any structure constructed of rail, timber, boards, metal, masonry, stone, earthworks such as berms, or other man-made objects or materials, which prevents intrusion, marks a boundary, provides visual screening, or provides security from noise wind or dust. The Bylaw definition of Structure: A combination of materials assembled at a fixed location, for example a building, mobile home, tent, shed, swimming pool, deck or storage bin. The term structure shall include walls and fences or a combination thereof if over seven feet high measured from the existing grade. Findings and Relief It is the considered judgment of this Board that the new cinder block retaining wall does not. create a new original grade level for the petitioners’ property. The Bylaw Definitions Section II clearly describes Fences and Structures and leads us to conclude that the original grade of the property and not the filled grade or the top of the new wall is the measuring point. Therefore, the fence height is over 7 feet at 8.5 feet and is definitely a Structure and must conform to setback restrictions. Special Permit relief is required which needs a finding of “ not detrimental to the neighborhood”. Visual impressions of the sight, letters and testimony clearly provide a strong negative reaction to this project, which is of significant detriment to this neighborhood. Date Filed 2/20/2024 10:50 PM Superior Court - Essex Docket Number No. 231107 Map 17 Page 3 of 3 Lot 52/53 Accordingly, by a unanimous roll call vote the Board upholds the enforcement letter of the Building Inspector dated October 18, 2023 and denies any relief for the nonconformity. We, Kictizlate: Alan Battistelli, Chairman