Gordon v. Zoning Board of Appeals of Lee

494 N.E.2d 14, 22 Mass. App. Ct. 343

• Court: Massachusetts Appeals Court
• Decided: June 12, 1986
• Status: Published

Opinions

Perretta, J.

After the defendant board granted a variance so that a house and garage could be built on a parcel of land lacking the frontage required by the zoning by-law, the plaintiff abutter appealed to the Superior Court pursuant to G. L. c. 40A, § 17.² The judge heard the matter, de novo, and made findings in support of his conclusion that the prerequisites to the granting of a variance, as set out in G. L. c. 40A, § 10, had been met. However, because he also concluded that the board’s decision was too conclusory but nonetheless remediable,³ he annulled that decision and remanded the matter for further proceedings. Upon the board’s resubmission of more particularized findings, the judge affirmed the board’s decision. Although we agree with the judge that the plaintiff abutter has standing to challenge the granting of the variance, we conclude that his findings setting out the justification for the variance lack evidentiary support. We reverse.

1. The Evidence.

At the Superior Court trial, there was evidence to show the following facts. In 1969, William B. Salinetti (Salinetti) and his three sons, as tenants in common, bought about eight to nine acres of vacant land which, on its westerly side, had well over 600 feet of frontage on Fairview Street in Lee (the town). To the east, the land abuts about thirty acres of land owned by the plaintiff, Gordon. The northern boundary runs along a seventy-five-foot wide right of way which is included in the parcel, and the southern boundary is the Massachusetts Turnpike, to which there is no access from the Salinetti or Gordon properties.

In 1976, when the zoning by-law required residential building lots to have at least 125 feet of frontage, the Brisson Corporation purchased a portion of the Salinettis’ land fronting on Fairview Street, leaving the Salinettis with more than five acres (the locus) to the back of the land which abuts the Gordon property.⁴ According to Salinetti, Brisson first intended to lay out five lots, each having 100 feet of frontage. The planning board supposedly agreed to this proposal because other house lots on Fairview Street had that frontage and that was all that had been required under the earlier zoning by-law. When the selectmen objected, however, Brisson divided the land into lots of which four met the minimum 125 feet frontage requirement.

After the Brisson purchase, the Salinettis’ land, the locus, could be characterized as a “double pork-chop.” The frontage on Fairview retained by the Salinettis is divided into two parts: the seventy-five-foot wide right of way at the northerly end and a twenty-five-foot wide strip of land at the southerly end. Gordon has an easement, from her land to Fairview Street, in part over the strip seventy-five feet in width at the northern end of the locus. The area, after the Brisson purchase, is shown on the accompanying sketch, infra 356.

When the Salinettis sold their land to Brisson in 1976, Salinetti was aware that the zoning by-law required for residential use a minimum frontage on Fairview Street of 125 feet. However, according to Salinetti’s testimony, he “had no further plans for the land” other than to enter upon it occasionally “to get some cordwood,” which is the reason the Salinettis retained the southerly twenty-five-foot strip.

Salinetti further testified that some six years later, in 1982, he was approached by the plaintiff’s husband about purchasing the locus, the remaining parcel behind the house lots fronting on Fairview Street. The parties, however, could not agree on price. In January, 1983, Roger Scheurer viewed the locus with an eye towards its purchase. A resident to the north of Salinetti’s land saw Scheurer and Salinetti inspecting the locus and approached Salinetti about buying the land because he “didn’t want any building to go up there, he liked his privacy.” Salinetti gave him a week to buy the property, but this resident “backed out.” About the same time that Salinetti was negotiating with Scheurer, Salinetti was also approached by a lumber company that “wanted to go in and take the rest of the pine out” but he told the company representative that he “couldn’t give him any answer at the present time.”⁵ That could have been because the Salinettis and Scheurer had reached an agreement of purchase and sale subject to the granting of a variance to use the northerly seventy-five-foot strip as access to a single family house and garage that Scheurer intends to build on the northeastern comer of the locus.

Subdividing the locus has never been considered by Salinetti because, as he testified, he had a “reliable figure of $100 a foot” (or between $30,000 to $40,000 in all) as the cost of developing a “town approved roadway along that seventy-five-foot right-of-way.” Salinetti stated that he “couldn’t afford to do that if I wanted to.”

Roger Scheurer, the prospective purchaser of the locus, testified that he had looked for a residential building lot in Lee for about a year. He spoke with real estate agents and drove about the town looking for house lots. He would then approach the lot owners to “see if they had land for sale; and there was very little response, very little land available to purchase.” From these events, Scheurer formed the opinion that, for a prospective purchaser of a lot in Lee, there is a shortage of available lots. Scheurer described the shape of the locus as “unique in that it has frontage which is noncontinuous.” He, like Salinetti, has no intention of subdividing the locus because the cost of building a town approved road was “underestimated” by Salinetti; it would cost a “quarter of a million dollars to put in a road.”

Water drainage in the area is also “unique” according to Scheurer. The land at the northeastern comer, the proposed building site, is relatively level. The slope of the land carries off water from the northeast comer of the locus, creating a water condition at the bottom of the slope nearest Fairview Street. The Gordon property was not as “wet in the same fashion [in] that they were more or less on a top of the hill, until it drops off on the other side.” At least three of the houses on the building lots on Fairview Street “have water problems in their cellars.”

2. Gordon’s Standing.

General Laws c. 40A, § 17, as amended through St. 1982, c. 533, § 1, provides that “[a]ny person aggrieved by a decision of the board of appeals .... may appeal to the superior court.” As an abutter entitled to receive notice under G. L. c. 40A, § 11, of the public hearing before the board cm the application for a variance, Gordon is presumed to be a person aggrieved. That presumption is rebuttable. See Marotta v. Board of Appeals of Revere, 336 Mass. 199, 204 (1957). Citing Marotta, the trial judge stated: “In the absence of evidence to the contrary, I find that the plaintiff Gordon is an aggrieved party within the meaning of the statute and has a right of appeal.”

We see no error in the trial judge’s conclusion that Gordon’s presumption of standing had not been rebutted. As Salinetti testified, “use of that seventy-five foot right-of-way [is] incorporated in [Gordon’s] deed and mine.” That it would be necessary to clear and improve part of Gordon’s right of way for Scheurer to put in his proposed driveway might appear to him and Salinetti as a benefit to Gordon, but it was not evidence such as to require the trial judge to conclude that Gordon lacked standing to challenge the granting of the variance. “[Wjhether a party is ‘aggrieved’ is a matter of degree [citations omitted]; and the variety of circumstances which may arise seems to call for the exercise of discretion rather than the imposition of an inflexible rule. No abuse of discretion has been shown in this case.” Rafferty v. Sancta Maria Hosp., 5 Mass. App. Ct. 624, 629 (1977). See also Paulding v. Bruins, 18 Mass. App. Ct. 707, 709 (1984).

3. The Variance.

General Laws c. 40A, § 10, as amended by St. 1977, c. 829, § 4B, authorizes a board of appeals to grant a variance only where it “specifically finds [a] that owing to circumstances relating to the soil conditions, shape, or topography of such land . . . and especially affecting such land . .. but not affecting generally the zoning district in which it is located, [b] a literal enforcement of the provisions of the . . . by-law would involve substantial hardship, financial or otherwise, to the petitioner or appellant, and [c] that desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of such ordinance or by-law.” On an appeal to the Superior Court under G. L. c. 40A, § 17, the judge hears the matter de novo and determines the validity of the board’s decision on the basis of the facts found by the judge. See Kirkwood v. Board of Appeals of Rockport, 17 Mass. App. Ct. 423, 426-427 (1984), and cases therein cited. All the statutory prerequisites set out in § 10 must be met. Id. at 427-428.

On the evidence presented in the Superior Court and described in part 1 of this opinion, the trial judge found as follows. The locus is a “double pork chop” lot having a shape “so unusual that it also differs from most, if not all, of the lots in the zoning district.” Moreover, the locus is about ten times larger than the surrounding lots fronting on Fairview Street.

Use of the locus is limited by its topography to the construction of a single family house on the northeastern comer, the “relatively level” portion of the locus. The slope of the locus carries off water creating a “water condition at the bottom of the slope nearest Fairview Street.” The shape, topography, and soil conditions affecting the locus do “not affect the zoning district generally.”

If the variance were not granted, the “only alternative available to the owner would be to construct an acceptable road from Fairview Street to his property.” To construct such a road to serve a single home would involve a “prohibitive expense.” Compliance with the frontage requirement would “compel an uneconomic use of the land and would force a substantial hardship on the owner since the land could not be sold without a variance.” This substantial hardship is “created by the shape, location and configuration of the lot.”⁶ The trial judge concluded that the facts presented were substantially similar to those in Paulding v. Bruins, 18 Mass. App. Ct. 707 (1984). Upon remand and reconsideration (see note 3, supra), the board made more appropriate findings in support of the granting of the variance than those first submitted. We need not set out the board’s findings, which are substantially similar to those of the trial judge, as the board’s decision carried no evidentiary weight in the Superior Court. See Devine v. Zoning Bd. of Appeals of Lynn, 322 Mass. 319, 321 (1955); Josephs v. Board of Appeals of Brookline, 362 Mass. 290, 295 (1972).

4. Discussion.

Our starting point is the well-established principle that “[n]o person has a legal right to a variance and they are to be granted sparingly.” Damaskos v. Board of Appeal of Boston, 359 Mass. 55, 61 (1971), and cases therein cited. The test is not whether the variance is simply “desirable,” Martin v. Board of Appeals of Yarmouth, 20 Mass. App. Ct. 972, 973 (1985), but whether it is justified, that is, whether there is evidence to show that the statutory prerequisites have been met. See Dion v. Board of Appeals of Waltham, 344 Mass. 547, 555-556 (1962); Warren v. Zoning Bd. of Appeals of Amherst, 383 Mass. 1,10 (1981), and cases therein cited.

When the Salinettis conveyed to Brisson (in 1976) that portion of their land fronting on Fairview Street, the zoning by-law requiring a minimum of 125 feet of frontage for a lot in a residential zone was in effect, and the Salinettis knew of that requirement. That fact makes the present case unlike Paulding v. Bruins, 18 Mass. App. Ct. at 709, where the pork chop lot “was created in its present form in the 1920’s, as far as appears prior to the adoption by the town of any zoning by-law,” and identical to the situations found in Raia v. Board of Appeals of N. Reading, 4 Mass. App. Ct. 318, 321-322 (1976), and Arrigo v. Planning Bd. of Franklin, 12 Mass. App. Ct. 802, 803-804 (1981). Raia and Arrigo presented the situation where an owner of a larger tract of land conveyed to another a portion thereof which did not meet the minimum frontage requirements of the then existing zoning requirements, with the result that the new owner could not build without relief from the zoning regulations. In both instances relief was denied as the landowners could not demonstrate a “hardship” within the meaning of G. L. c. 40A, § 10.

Similarly, in Warren v. Zoning Bd. of Appeals of Amherst, 383 Mass, at 13, an owner of a larger tract of land conveyed a portion of it which did not meet the minimum frontage requirements of the “then existing zoning by-law.” In annulling the board’s decision granting a variance to the purchaser of the smaller parcel, the court held: “The creation of a nonconforming parcel by such a conveyance does not, without more, entitle the purchaser to a variance.”

We see nothing in the present case which constitutes “more” than a proposed conveyance of a nonconforming parcel. “The hardship alleged must arise from the shape of the locus or one of the other factors specifically referred to in § 10.” Guiragossian v. Board of Appeals of Watertown, 21 Mass. App. Ct. 111, 118 (1985). Any hardship to Salinetti or Scheurer does not arise out of the soil conditions or topography of the locus. The slope of the land and consequent water drainage problems relate, at best, to the proposed construction site which was selected to avoid water problems such as those experienced by three of the abutting Fairview Street property owners. The fact of the matter is, however, that the reason a house cannot be constructed on the relatively level northeastern comer of the locus or at any other site on the lot is because it lacks the requisite frontage.

Although the trial judge correctly described the locus as a “double pork-chop” and found that “no other lot in the area [is] of similar shape,” those conditions were created by the Salinettis in 1976 for their financial gain. They specifically retained only twenty-five feet of frontage on the southern boundary so that they could enter onto the land to remove cordwood. They knew that by reason of their conveyance to Brisson, the remaining land would be a nonconforming parcel in the event that residential use were sought in the future. Moreover, until the Salinettis’ conveyance to Brisson, there was nothing the least bit unusual about the shape of the tract in its entirety. The slope of the land and the existence of the Massachusetts Turnpike along the southerly boundary were the same in 1976 as they are presently. In short, any “hardship” which currently exists is of the Salinettis’ making and could have been avoided easily in 1976.⁷

To be sure, on the evidence presented one could conclude reasonably and readily that the granting of a variance would allow economic use of the locus without detriment to the public good. That conclusion, however, is not dispositive for the board or for us as it ignores the express language of § 10. See Warren v. Zoning Bd. of Appeals of Amherst, 383 Mass, at 9-10.

There is nothing in the evidence which serves to distinguish the instant case from Raia, Arrigo, and Warren, which hold that the creation by conveyance of an unusually shaped, nonconforming parcel under then existing zoning regulation does not entitle one to a variance.⁸

5. Conclusion.

It follows from what we have stated that the judgment of the Superior Court is reversed and a new judgment is to be entered that the decision of the zoning board of appeals of Lee was in excess of its authority and is annulled.

So ordered.

2 Although the planning board of Lee also claimed an appeal to the Superior Court, that court’s docket does not reflect an appeal by the planning board to this court from the judgment upholding the variance. Additionally, the planning board did not file a brief in this court. See Mass.R.A.P. 16(a) (4), as amended, 367 Mass. 921 (1975). That board, therefore, is not a party to this appeal.

3 See Josephs v. Board of Appeals of Brookline, 362 Mass. 290, 300 (1972); Williams v. Building Commr. of Boston, 1 Mass. App. Ct. 478, 481 (1973), where the findings of the boards were held to be inadequate but remediable at further hearings.

4 Although Salinetti “could” have sold Brisson larger lots extending into the back land, Brisson was “just interested in meeting” the frontage requirements.

5 Salinetti had no idea of the fair market value of the land “for logging purposes” other than his general understanding that “logs are . . . now ... a depressed market.”

6 Because of the conclusion we reach as to two of the three statutory (§ 10) requirements which “are conjunctive, not disjunctive,” Kirkwood v. Board of Appeals of Rockport, 17 Mass. App. Ct. at 428, we need not consider the trial judge’s findings to the effect that the variance could be granted without detriment to the public good and without substantially derogating from the intent of the zoning by-law.

7 The sale of the frontage land to Brisson in 1976 constituted the making of a subdivision, because not every lot (in particular, the Salinettis’ retained land) thereby created had the frontage then required by the zoning by-law on a public way or a way approved by the planning board. See G. L. c. 41, § 81L. It does not appear from the record whether a plan reflecting the subdivision was submitted to the planning board (as was required by G. L. c. 41, § 810) or was approved by that board.

8 It does not necessarily follow, as the dissent would suggest, that the Salinettis’ back land is rendered economically unuseable for a single residence by reason of the doubtless high cost of constructing a road complying with the rules and regulations of the planning board. The planning board is given ample authority by G. L. c. 41, § 81R, as amended by St. 1955, c. 411, § 1, to waive strict compliance with its rules and regulations in light of “conditions limiting the lots upon which buildings may be erected and the number of buildings that may be erected on particular lots.” Conditions guaranteeing that the road would serve only one residence would surely warrant reasonable adjustments to road specifications drafted in contemplation of their serving developments. Frontage on a road thus approved by the planning board could eliminate the necessity for a variance. The planning board would have jurisdiction because of the 1976 subdivision (see note 7, supra), whether by way of original approval (if approval was not sought in 1976) or by way of amendment under G. L. c. 41, § 81W.