Adams v. Brolly

702 N.E.2d 400, 46 Mass. App. Ct. 1, 1998 Mass. App. LEXIS 1279
CourtMassachusetts Appeals Court
DecidedDecember 3, 1998
DocketNo. 97-P-0159
StatusPublished
Cited by5 cases

This text of 702 N.E.2d 400 (Adams v. Brolly) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Adams v. Brolly, 702 N.E.2d 400, 46 Mass. App. Ct. 1, 1998 Mass. App. LEXIS 1279 (Mass. Ct. App. 1998).

Opinions

Greenberg, J.

Prior to July 28, 1992, James G. Brolly owned a 9.9 acre parcel of land in Dedham that he proposed to divide into four lots. In March, 1993, after he secured an “approval not required” endorsement for his proposal from the planning board of Dedham (planning board), see G. L. c. 41, § 8 IP, the Metropolitan District Commission (MDC) proposed a taking that precluded the consummation of a land swap agreement by which Brolly had planned to secure the necessary frontage for one of the lots (locus). Following the grant of a variance to Brolly by the zoning board of appeals (board), the plaintiff, Mitchell Adams, an abutter to the east of the locus, took an appeal under G. L. c. 40A, § 17. A judge of the Superior Court, upon a stipulated statement of agreed facts and after having taken a view of the locus, found that the board did not exceed its authority in granting the requested variance. We affirm.

We set out the facts that are essential to our decision. The locus consists of 5.894 acres of land with 98.54 linear feet of frontage along Westfield Street in Dedham. It was originally acquired by Brolly in 1985 as part of the original 9.9 acre parcel. Brolly wanted to divide the 9.9 acres into four smaller parcels that included one lot on which his residence stood. His intention was to build a house for himself on one of the newly created lots. There is appended to our opinion a plan, incorporating the salient features, filed with the Norfolk County Registry of Deeds on July 28, 1992 (plan), that depicts the four lots.

As laid out on the plan, lot 2 (the locus, upon which Brolly intended to build his new residence) did not conform to the dimensional requirements of Section VI-1 of Dedham’s zoning by-law. It fell short of the 125-foot frontage requirement by 26.46 feet. In order to comply with the by-law, Brolly reached an agreement to exchange land with an abutter, Alexander McNeil, who owned land bordering the westerly boundary of lot 2.

Brolly agreed to exchange parcels B and C, as shown on the plan, for McNeil’s lot 30, also shown on the plan. The swap would give Brolly’s lot 2 the necessary frontage on Westfield Street so that it conformed to the by-law.

With the agreement in place, and prior to any conveyance of [3]*3the lots, Brolly and McNeil, the intended owner of lots B and C, filed joint applications with the planning board for endorsements, pursuant to G. L. c. 41, § 81P, as appearing in St. 1963, c. 363, § 1, that “approval under the subdivision control law [is] not required.” On July 26, 1992, the planning board approved the endorsement for McNeil’s application but rejected the plan depicting the division of Brolly’s land. As a result of the planning board’s failure to record its action pursuant to G. L. c. 41, § 81P, however, the plan was constructively endorsed.

On August 7, 1992, only after obtaining the constructive endorsement of his plan, Brolly conveyed lot 1, which contained his residence, to Teresa Tan. With that conveyance in place, the Brolly-McNeil swap was yet to be completed. It required McNeil to clear his title to lot 30 of certain mortgage interests. The clearing of McNeil’s title took longer than they foresaw.

In March, 1993, seven months after the conveyance of lot 1, and before the exchange with Brolly went through, McNeil was informed by the MDC that it was undertaking a comprehensive park land acquisition program and that “[t]he land currently owned by you . . . has been identified as critical for this program, and therefore has been included on the listing of properties which the Real Property Office must prepare for acquisition. It is planned that this property will be acquired, subject to the approval of the appropriate government agencies . . . either within Fiscal Year 1993 ... or within Fiscal Year 1994

Faced with the grim and unforeseen prospect of not being able to comply with frontage requirements to build on lot 2, Brolly sought to avail himself of the variance provisions of G. L. c. 40A, § 10.3

At the hearing before the board, abutters and neighbors, including the plaintiff Adams, made certain objections. They complained about increased traffic. The board dismissed these objections and on August 11, 1993, issued a written decision [4]*4granting Brolly a frontage variance for lot 2. A 4-to-l majority of the board “felt that [Brolly] did, in fact, have a substantial hardship ... in that there exists a ‘pork chop’ lot unlike any other lot in the neighborhood.” They noted that the lot is unbuildable without the variance and “appears to have no use other than that of a residential home site.”

On February 10, 1994, the MDC, in fact, took McNeil’s property by eminent domain, including lot 30 from which Brolly had expected to create the necessary frontage.

The issue on appeal is whether the hardship alleged by Brolly has been “self-created.” Our starting point is the well-established principle in our cases prohibiting self-imposed hardships as a basis for obtaining a variance. See Raia v. Board of Appeals of N. Reading, 4 Mass. App. Ct. 318, 322 (1976); Gordon v. Zoning Bd. of Appeals of Lee, 22 Mass. App. Ct. 343, 350 (1986); Karet v. Zoning Bd. of Appeals of Worcester, 27 Mass. App. Ct. 439, 440 (1989). Cf. Feldman v. Board of Appeal of Boston, 29 Mass. App. Ct. 296, 297 (1990).

Typically, this situation arises when the owner of a large tract of land conveys to another a portion of the land that does not meet either the size or frontage requirements of the existing zoning code with the result that the new owner cannot build without relief from the regulations. See, e.g., Raia v. Board of Appeals of N. Reading, supra. It may also arise when a landowner conveys out conforming lots and retains for himself a nonconforming lot. See, e.g., Shafer v. Zoning Bd. of Appeals of Scituate, 24 Mass. App. Ct. 966, 967 (1987).

This is not the situation here. Brolly anticipated that the newly created lot 2 would have less than the required 125 feet of frontage. He took all the necessary steps to bring the lot into conformance with the zoning by-law’s frontage requirement. As we have stated, it was not until after he learned that his plan was endorsed by the planning board that he conveyed lot 1 to Tan. Prior to the proposed taking no application for a variance was filed. Only after notice was received of the proposed MDC taking, when it was no longer possible to obtain lot 30 from McNeil, did Brolly apply for a variance.

The present case is a variant on our decision in Paulding v. Bruins, 18 Mass. App. Ct. 707, 710 (1984). There the defendant owned a lot of pork chop shape that existed prior to the adoption of the zoning by-law in the town of Plymouth. The defendant intended to construct a single family residence despite [5]*5the lot’s frontage not conforming to the zoning by-law requirements. We affirmed the zoning board’s grant of a variance based upon the evidence that the size of the lot exceeded most of the surrounding lots by a significant amount and that the existing topography would accommodate a driveway from a public way to the larger portion of the lot. Without a variance of this sort, the lot would remain unbuildable. Id. at 711-712. As in the Paulding case, here the board granted relief to Brolly because the triggering event of hardship occurred through no fault or subterfuge of the owner.

For his part, the plaintiff argues that

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Cite This Page — Counsel Stack

Bluebook (online)
702 N.E.2d 400, 46 Mass. App. Ct. 1, 1998 Mass. App. LEXIS 1279, Counsel Stack Legal Research, https://law.counselstack.com/opinion/adams-v-brolly-massappct-1998.