STEVEN P. ROSENTHAL, Trustee, & Another v. PLANNING BOARD OF MARBLEHEAD & Others (And a Consolidated Case).

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-1350

STEVEN P. ROSENTHAL, trustee,1 & another2

vs.

PLANNING BOARD OF MARBLEHEAD & others3
(and a consolidated case4).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In these consolidated zoning cases, the parties limited the

principal issue at trial to whether parcels of property owned or

controlled by Stephen R. Petersen and Gillian Lieberman on

1 Of the Joan F. Rosenthal Revocable Trust.

2Joan F. Rosenthal, trustee of the Joan F. Rosenthal
Revocable Trust. Michael Murphy and Diane P. Phillips, as
trustees of the Ten Bartlett Street Condominium Trust, were
plaintiffs in the Land Court, but are not parties to this
appeal.

3 Stephen R. Petersen and Gillian Lieberman.

4Steven P. Rosenthal, trustee of the Joan F. Rosenthal
Revocable Trust, & another vs. Zoning Board of Appeals of
Marblehead & others. Michael Murphy and Diane P. Phillips,
trustees of the Ten Bartlett Street Condominium Trust, were
plaintiffs in the Land Court, but are not parties to this
appeal.
Bartlett Court in Marblehead should be considered to have merged

for the purposes of zoning because of inadequate frontage for

separate lots. After a trial, a judge of the Land Court

concluded that the properties have not merged; neighbors Joan F.

Rosenthal and Steven P. Rosenthal, as trustees of the Joan F.

Rosenthal Revocable Trust (trustees), appeal. We affirm.

Background. The Rosenthals, and Petersen and Lieberman,

are both married couples who separately own in varying

capacities several parcels of property situated on opposite

sides of a private way, Bartlett Court, and adjacent to or near

the Atlantic Ocean in Marblehead.5 We are primarily interested

in lot B (also known as 9 Bartlett Court); lot C (also known as

11 Bartlett Court); and lot 1 (which the judge determined is an

extension of Bartlett Court that has existed since the early

1900s), all as shown on a plan dated December 14, 2009, and

endorsed by the planning board as approval under the subdivision

control law not required (ANR) on February 9, 2010 (2010 ANR

plan). The 2010 ANR plan depicts lot B and lot C as sharing a

5 We need not detail the exact division of ownership of
Petersen's and Lieberman's parcels because, while the parcels
may be in separate legal ownership, the parties have stipulated
that at all relevant times, all of their parcels have been under
"common control," such that Petersen and Lieberman do not rely
on their separate ownership of individual parcels to argue that
the concept of merger does not apply. Thus, we refer to
Petersen and Lieberman, collectively, as the owners of the
relevant parcels.

2
common boundary; lot C is improved with a large home and lot B

is improved with a pool house and a pool. Lot B is shown on the

2010 ANR plan as fronting on Bartlett Court for one hundred feet

and lot C is shown as fronting on Bartlett Court and on "Lot 1"

-- the Bartlett Court extension -- for a total distance of

166.57 feet. The deed from Petersen's and Lieberman's

predecessors refers to the 2010 ANR plan.

The trustees own the property fronting on the opposite side

of Bartlett Court and lot 1, known as 40 Bartlett Court, also

shown on the 2010 ANR plan.6 It, too, is improved with a large

home and garage.

1. Bartlett Court and development of properties. The

judge found that Bartlett Court was first shown on a plan in

1906 and by 1954 the trustees' home and the home on 11 Bartlett

Court now owned by Petersen existed at the end of the way. For

decades, Bartlett Court has been paved starting from its

intersection with Spray Avenue and extending toward the ocean;

6 Indeed, the judge noted that if the extension does not
provide sufficient frontage, the trustees' property would also
become nonconforming with frontage of less than the required one
hundred feet on Bartlett Court. In their reply brief, they
contend that the assertion of adequate frontage in a special
permit application was mere error. Here, they attach a more
sinister motive for the same explanation as to the error on the
2021 ANR plan. While we decide the case on other grounds, we
note that it may well be that "the plaintiffs' position is so
intrinsically inequitable that it should not prevail." Hogan v.
Hayes, 19 Mass. App. Ct. 399, 404 (1985).

3
an unpaved portion continued toward the ocean -- the length of

which changed from time to time. By 1966, a gate had been

installed near the end of the paved section, but the unpaved

section continued past the gate. The judge found that Bartlett

Court extends from Spray Avenue for 221.4 feet to a gate, beyond

which mesh pavers7 extend on the roadway for an additional

distance of 59.5 feet. We refer to the section of Bartlett

Court beyond the gate as Bartlett Court extension or the

extension, and as noted above, the judge found that lot 1 on the

2010 ANR plan is the Bartlett Court extension.8

In 2016, Petersen and Lieberman obtained a building permit

allowing them to improve a pool house on lot B to create a

single-family residence, which Petersen and Lieberman since have

used as a guest house. So far as the record reveals, no issues

as to lot B's or lot C's frontage were raised at that time.

In 2021, the planning board endorsed a newly drafted ANR

plan submitted by Peterson and Lieberman that changed the common

boundary of lot B and lot C to eliminate a side-yard

7 The judge found that the mesh pavers are designed to
"accommodate heavy vehicle loadings or passenger type of
loadings in areas where there's a desire to minimize impervious
area."

8 Lot 1 first appeared on the 2010 ANR plan which was
created by Lieberman's and Petersen's predecessor. Lot 1 serves
as a portion of the boundary of lot 2 on the plan; lot 2, as
noted on the 2010 ANR plan, was later transferred to Steven P.
Rosenthal, as trustee of 40 Bartlett Street Realty Trust.

4
nonconformity on lot B but did not alter the frontage for either

lot (2021 ANR plan). Lot B was relabeled lot B2 (9 Bartlett

Court) and lot C was relabeled lot C1 (11 Bartlett Court).

Nonetheless, the 2021 ANR plan, on its face, shows lot B2 with

frontage that complies with the Marblehead zoning bylaw minimum

requirement of one hundred feet. However, the Bartlett Court

extension is no longer separately labeled as lot 1, but is shown

on the 2021 ANR plan as part of lot C1 -- 11 Bartlett Court.

Thus, it is not clear from the 2021 ANR plan that Bartlett Court

extension continues on lot C1.

Turning to the project at issue before us, in 2021,

Petersen and Lieberman applied to the planning board for a site

plan special permit that would allow them to add a second-floor

addition to the existing residential structure on lot B2 (9

Bartlett Court) as depicted on the 2021 ANR plan. It is

undisputed that the town prohibits more than one principal

building on a lot, and that the town requires each lot in the

zoning district in which the properties are located to have one

hundred feet of frontage on a street. The trustees challenged

the application, contending that lot C1 has insufficient

frontage as shown on the 2021 ANR plan and, therefore, lots B2

and C1 had merged for zoning purposes. They further contended

that where a large home already exists on lot C1 and the town

5
zoning bylaw prohibits more than one primary structure on a lot,

a second primary structure on lot B2 is prohibited.9

2. Local decisions and Land Court decisions. The planning

board issued a decision noting that it heard comments regarding

"frontage and dimensional issues," but concluded that 9 Bartlett

Court had sufficient frontage and that the plan met the zoning

bylaw's requirements for a site plan special permit.

Thereafter, the trustees filed an appeal in the Land Court

pursuant to G. L. c. 40A, § 17, and also submitted a request to

the building commissioner to enforce the bylaw. The building

commissioner issued a decision concluding that both 9 Bartlett

Court and 11 Bartlett Court have conforming frontage and that

the parcels had not merged despite their common ownership. The

zoning board of appeals affirmed the building commissioner's

decision. The board found the paved portion of Bartlett Court

provides 43.2 feet of frontage for 11 Bartlett Court and that

Bartlett Court extension provides eighty-five feet of frontage,

of which fifty-three feet10 have been improved with mesh pavers.

9 The judge and the parties seem to accept as true that the
proposed changes to the "guest house" on lot B would create two
principal structures when considered with the home on lot C1.
Finding that the lots had not merged, the board of appeals did
not reach that issue and it has not been raised on appeal.

10The judge found that 59.5 feet were improved with mesh
pavers while the board found that fifty-three feet had been
improved with pavers and thirty-two feet were comprised of short

6
The board of appeals further found that the portions of Bartlett

Court providing frontage to 11 Bartlett Court have sufficient

width, suitable grades, and adequate construction for the needs

of the abutting land. Finally, the board of appeals found that

"[t]here has been no merger of the two lots despite any common

ownership"; the presence of a "gate is not relevant to zoning

compliance"; and the 2021 ANR plan "did not operate to eliminate

any amount of frontage used by 11 Bartlett, and did not render

11 Bartlett out of compliance with the frontage requirements of

the Bylaw."

The trustees again appealed to the Land Court from the

decision of the board of appeals and both appeals were

consolidated in the Land Court. After a trial, which included a

view, the Land Court judge concluded that Bartlett Court,

including the extension, constitutes a street as defined in the

local zoning bylaw as it was in existence when the subdivision

control law was adopted, that both 9 Bartlett Court and 11

Bartlett Court have at least one hundred feet of frontage on a

street, and that the lots had not merged. The judge considered

extrinsic evidence including historic and current maps and

plans, along with testimony indicating that Bartlett Court

extension has long been in existence, was in existence when the

grass. The difference is not material to the arguments on
appeal.

7
subdivision control law was adopted in Marblehead in 1997, has

been improved with mesh pavers abutting lot C, and is adequate

for service to the single-family home on lot C. Further, the

judge implicitly credited evidence by the drafter of the 2021

ANR plan explaining her error in failing to show the Bartlett

Court extension on the 2021 ANR plan. The parties having

conceded that there was no other legal infirmity, the judge

affirmed the planning board's decision to grant the special

permit and the board of appeals' decision affirming the building

commissioner's denial of the trustees' zoning enforcement

request. The judge rejected the trustees' argument that the

failure to depict the full length of Bartlett Court on the 2021

ANR plan compelled the conclusion that the lots had merged.

Discussion. 1. Standard of review. On appellate review

of a local board's decision to grant a special permit, "the

judge's findings of fact will not be set aside unless they are

clearly erroneous or there is no evidence to support them. We

review the judge's determinations of law, including

interpretations of zoning bylaws, de novo" (citation omitted).

Fish v. Accidental Auto Body, Inc., 95 Mass. App. Ct. 355, 362

(2019). The same is true for appellate review of the judge's

decision reviewing the board of appeals' decision upholding the

building commissioner's zoning enforcement decision. See

Drummey v. Falmouth, 87 Mass. App. Ct. 127, 128 (2015) (on

8
appeal of Superior Court's decision reviewing building

commissioner's decision, we review judge's determinations of law

de novo); Oakham Sand & Gravel Corp. v. Oakham, 54 Mass. App.

Ct. 80, 84 (2002) (on appeal of board of appeals' decision

affirming town's zoning enforcement officer's cease and desist

order, our duty is to accept trial judge's findings of fact

unless clearly erroneous). "If the [special permit granting

authority's] decision is supported by the facts found by the

judge, it 'may be disturbed only if it is based on a legally

untenable ground, or is unreasonable, whimsical, capricious or

arbitrary'" (citation omitted). Fish, supra. Moreover, to the

extent that either board's decision is based on the local bylaw,

"[a] reasonable interpretation of its own zoning by-law by a

local board . . . is entitled to deference." Livoli v. Board of

Appeals of Southborough, 42 Mass. App. Ct. 921, 922 (1997).

2. Merger doctrine. "It is well settled that '[a]djacent

lots in common ownership will normally be treated as a single

lot for zoning purposes so as to minimize nonconformities.'"

Carabetta v. Board of Appeals of Truro, 73 Mass. App. Ct. 266,

268 (2008), quoting Preston v. Board of Appeals of Hull, 51

Mass. App. Ct. 236, 238 (2001). Known as the "merger doctrine,"

in answering the question whether it applies, courts ignore "the

manner in which the components of a total given area have been

assembled and concentrates instead on the question of whether

9
the sum of the components meets the requirements of the by-law"

(citation omitted). Carabetta, supra at 270. Thus, the

determination of whether the merger doctrine applies requires

consideration of what actually exists on the ground as well as

other pertinent circumstances, such as the historical use of the

road and current plans, among other considerations. "As the

moniker suggests, an ANR endorsement expresses no view of town

authorities as to the zoning compliance of any lot proposed by a

subdivision plan." Bruno v. Zoning Bd. of Appeals of Tisbury,

93 Mass. App. Ct. 48, 50 n.4 (2018). See Palitz v. Zoning Bd.

of Appeals of Tisbury, 470 Mass. 795, 807 (2015), quoting

Cornell v. Board of Appeals of Dracut, 453 Mass. 888, 892 (2009)

("ANR indorsement serves merely to permit the plan to be

recorded . . . and is not an attestation of compliance with

zoning requirements").

Here, based on findings of fact that largely have not been

challenged, the judge concluded that lot 1 as depicted on the

2010 ANR plan is an extension of Bartlett Court and constitutes

a "street" for purposes of the local zoning bylaw because it was

in existence on the date the subdivision control law was

adopted. The judge further concluded that Bartlett Court and

its extension, lot 1, provides at least one hundred feet of

sufficient frontage for both lots B2 and C1. The trustees

insist, however, that because Bartlett Court extension is not

10
labeled as a "street"11 on the 2021 ANR plan, neither it nor lot

1 can serve as frontage12 for lot C1 (11 Bartlett Court) -- that

it cannot be both a "lot"13 and a "street" as those terms are

defined in the town's zoning bylaw.14

At the outset, we pause to note that this is not an appeal

challenging whether the planning board properly endorsed the

2021 ANR plan or any other ANR plan;15 it is an appeal from a

11 "Street" is defined in the bylaw, as relevant here, as a

"way in existence when the Subdivision Control Law became
effective, having sufficient width and suitable grades, and
adequate construction to provide for the needs of vehicular
traffic in relation to the proposed use of land abutting
thereon or served thereby, and for the installation of
municipal services to serve such land and the buildings
erected or to be erected thereon."

12The term "Lot frontage" is defined as "[t]hat part of a
lot which has an uninterrupted parcel boundary line abutting on
a constructed street."

13"Lot" is defined as "[a] single area of land defined by
metes, bounds, or boundary lines in a duly recorded deed or
shown on a duly recorded plan."

14The trustees do not cite to any authority in support of
their contention that a street cannot also be a lot. Indeed, we
note that with regard to registered land, "[n]o new certificate
of title may issue for the fee in a street unless a plan has
been filed showing the street as a lot." Guideline 24 of the
Land Court Guidelines on Registered Land (Feb. 27, 2009).

15In their reply brief, the trustees take the somewhat
conflicting positions that an ANR plan is authoritative with
regard to frontage, see Perry v. Planning Bd. of Nantucket, 15
Mass. App. Ct. 144, 156 (1983), but notwithstanding that this is
not an appeal from the ANR endorsement of the 2021 plan, ask us
to ignore the inherent determination that all of the lots shown
on the 2021 ANR plan have adequate frontage on a street.

11
special permit granted for 9 Bartlett Court (lot B2) and the

related zoning enforcement decision. On appeal, the trustees do

not challenge that 9 Bartlett Court has the requisite frontage

on a street, but rather argue that both zoning decisions were

wrong because 9 Bartlett Court had merged with the adjacent 11

Bartlett Court because 11 Bartlett Court had insufficient

frontage. It is unclear, therefore, that when applying for the

special permit for 9 Bartlett Court, Petersen and Lieberman were

required to anticipate the trustees' argument and submit plans

that demonstrated 11 Bartlett Court's compliance with the zoning

bylaw. In any event, while the 2021 ANR plan may indeed be

ambiguous with respect to whether 11 Bartlett Court has

sufficient frontage, the judge made detailed findings on this

issue.

The trustees have not shown that it was error for the judge

to consider extrinsic evidence -- evidence outside the

application materials -- of the existence of frontage on a

street. See Vetter v. Zoning Bd. of Appeal of Attleboro, 330

Mass. 628, 630 (1953) (rejecting construction of merger

provision of local ordinance where "plaintiff's argument would

require us to construe the word lot . . . as referring to a lot

which corresponded with some 'lot' shown on a plan in the

assessors' office rather than to the lot as it actually existed

upon the surface of the earth. We find nothing in this record

12
to suggest that lots under the ordinance were to be determined

by assessors' plans or assessments or according to sources of

title"). Given that the issue of the technical accuracy of the

2021 ANR plan was not before the judge, we similarly conclude

that the judge properly considered extrinsic evidence on whether

lot B2 and lot C1 each currently in fact have a minimum of one

hundred feet of frontage on Bartlett Court or the extension --

regardless of the ambiguity on the 2021 ANR plan.16

The judge noted that the drafter of the 2021 ANR plan

admitted to having erred by not depicting Bartlett Court as

extending beyond the end of the finished pavement. The judge

also relied on a 2024 plan by the same surveyor showing the

length, width, and composition of Bartlett Court and the

extension as they exist on the ground today. In addition, the

judge considered the history of Bartlett Court extension. The

judge found that aerial photographs from 1954, 1966, 1981, and

1990 show a dirt or gravel road extending from Spray Avenue to a

point past the residence on lot C. The extension is also shown

on a 2000 plan in the same location and Steven Rosenthal

testified that it existed and was made of dirt or gravel. The

16 To the extent the trustees contend that the ANR plan
determines zoning compliance, our cases have concluded
otherwise. See Bruno, 93 Mass. App. Ct. at 53 (where ANR plan
created nonconforming lots, conveyance triggered enforcement
claim).

13
judge further found that the town adopted the subdivision

control law in 1997, and, relying particularly on the evidence

of its existence around 2000, concluded that the Bartlett Court

extension existed in 1997 and constituted a "street" under the

zoning bylaw. We discern no error in the judge's analysis and

conclusion.

Having concluded that Bartlett Court extension was a street

in existence on the date the subdivision control law was

adopted, the judge considered whether, as the board of appeals

concluded, it has "sufficient width and suitable grades, and

adequate construction to provide for the needs of vehicular

traffic in relation to the proposed use of the land abutting

thereon and served thereby, and for the installation of

municipal services to serve such land and building erected or to

be erected thereon." The judge noted that of the one hundred

feet of required frontage, forty-four feet is paved, the width

is thirteen to fourteen feet and the grade is relatively flat.

Beyond the paved section is 59.5 feet of "'concrete mesh' paver

blocks" designed to "accommodate heavy vehicle loadings or

passenger type of loadings." The judge ultimately concluded,

therefore, that both lot B and lot C have adequate frontage on a

street and the lots have not merged.

On appeal, the trustees do not refute the judge's findings.

Rather, in addition to relying on the purported technical flaws

14
in the 2021 ANR plan, they argue that the judge ignored that the

local bylaw requires that a way be "constructed," and quote Shea

v. Board of Appeals of Lexington, 35 Mass. App. Ct. 519, 523

(1993), for the proposition that "if the purpose of the by-law

is not to be undermined," the bylaw must be read "to require an

actual way, constructed on the ground, not just a depiction of a

way on a plan." The judge's findings as to the flat grade and

mesh pavers installed on Bartlett Court extension amply belie

the suggestion that the extension is simply a paper street, and

support the conclusion that it has been "constructed." And,

even if at the time the planning board reviewed the special

permit application the pavers had not yet been installed,

Petersen's and Lieberman's expert testified that dirt roads are

plentiful in the Commonwealth and also provide adequate access.

We cannot say on this record, therefore, that the board of

appeals' conclusion that the extension is a street that provides

adequate access was error.

The trustees next suggest that the extension is not a

street; it is functionally a driveway. They note testimony that

there is no technical difference between private ways and

driveways; however, they fail to point to any portion of the

zoning bylaw that would compel the conclusion that the extension

may not be considered a street. Our own review does not reveal

15
a separate definition of "driveway."17 Thus, we discern no

error.

In short, we agree with the Land Court judge that any

technical deficiencies in the 2021 ANR plan are not controlling

when considering an argument that 9 Bartlett Court, the subject

of the special permit application, has merged with adjoining

land at 11 Bartlett Court. Having properly examined the history

of the property and the existing conditions on the ground and

made findings of fact that are consistent with the evidence, the

judge reasonably concluded that two adjacent lots each have the

requisite one hundred feet of frontage on a street, such that

the merger doctrine does not apply, and properly affirmed the

17The subdivision control regulations -- to the extent they
have application to the issues before us where the extension is
a street that existed prior to the town's adoption of the
subdivision control law -- classifies "street" in four
categories, the final being a "Lane," defined as "a street
which, in the opinion of the Board, is being used or will be
used primarily to provide access to a small number of abutting
lots, carrying 150 (or fewer) vehicle trips per day."

16
decisions of the planning board and the board of appeals.

Judgments affirmed.

By the Court (Grant,
Brennan & Smyth, JJ.18),

Clerk

Entered: January 21, 2026.

18 The panelists are listed in order of seniority.

17