Planning Board of Sandwich v. Board of Appeals of Sandwich

Massachusetts Appeals Court

Planning Board of Sandwich v. Board of Appeals of Sandwich

446 N.E.2d 1077, 15 Mass. App. Ct. 971, 1983 Mass. App. LEXIS 1270

Massachusetts Appeals Court·Decided March 24, 1983·Published·Cited by 1 cases

Opinion

The planning board of Sandwich sought judicial review of decisions by the board of appeals of Sandwich granting a special permit and variance to authorize condominium development on a tract of land in that town. After hearing, the Superior Court concluded that the decisions of the board of appeals were within its authority, and this appeal ensued. We affirm.

There was sufficient evidence before the judge to support his determination that, in granting the special permit, the board of appeals made all the findings required by the Sandwich zoning by-law. See Shalbey v. Board of Appeal of Norwood, 6 Mass. App. Ct. 521, 529 (1978). He properly found that the decision was in harmony with the purposes of the Sandwich by-law (G. L. c. 40A, § 9; Garvey v. Board of Appeals of [972]*972Amherst, 9 Mass. App. Ct. 856 [1980]), was not based on a legally untenable ground, and was neither arbitrary nor unreasonable (MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635, 639 [1970]; Garvey, supra).

Anthony R. Bott for the plaintiff. Lawrence O. Spaulding, Jr., for Milton Schwartz. Alan A. Green, Town Counsel, for Board of Appeals of Sandwich.

The judge’s findings with respect to the validity of the granted variance, findings premised on a view of the locus and adjacent land as well as evidence adduced at the hearing, must stand unless clearly erroneous. Hunt v. Milton Sav. Bank, 2 Mass. App. Ct. 133, 135 (1974). Here the judge, as had the board of appeals, made specific findings regarding each of the prerequisites to a variance. Cass v. Board of Appeal of Fall River, 2Mass. App. Ct. 555,557-558 (1974). Boyajianv. Board of Appeal of Wellesley, 6 Mass. App. Ct. 283, 284 (1978). There was ample evidentiary support for each of those findings, including that of a hardship created by the unique topography of the locus. See Dion v. Board of Appeals of Waltham, 344 Mass. 547, 550-552 (1962); Sherman v. Board of Appeals of Worcester, 354 Mass. 133, 135-136 (1968); Wolfman v. Board of Appeals of Brookline, ante 112, 116 (1983), and cases cited therein. Contrast Wolfson v. Sun Oil Co., 357 Mass. 87, 90 (1970); Costa v. Zoning Board of Appeals of Framingham, 6 Mass. App. Ct. 872 (1978). The judge properly concluded that the granted variance was valid.

Judgment affirmed.

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The planning board of Sandwich sought judicial review of decisions by the board of appeals of Sandwich granting a special permit and variance to authorize condominium development on a tract of land in that town. After hearing, the Superior Court concluded that the decisions of the board of appeals were within its authority, and this appeal ensued. We affirm.

There was sufficient evidence before the judge to support his determination that, in granting the special permit, the board of appeals made all the findings required by the Sandwich zoning by-law. See Shalbey v. Board of Appeal of Norwood, 6 Mass. App. Ct. 521, 529 (1978). He properly found that the decision was in harmony with the purposes of the Sandwich by-law (G. L. c. 40A, § 9; Garvey v. Board of Appeals of [972]*972Amherst, 9 Mass. App. Ct. 856 [1980]), was not based on a legally untenable ground, and was neither arbitrary nor unreasonable (MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635, 639 [1970]; Garvey, supra).

Anthony R. Bott for the plaintiff. Lawrence O. Spaulding, Jr., for Milton Schwartz. Alan A. Green, Town Counsel, for Board of Appeals of Sandwich.

The judge’s findings with respect to the validity of the granted variance, findings premised on a view of the locus and adjacent land as well as evidence adduced at the hearing, must stand unless clearly erroneous. Hunt v. Milton Sav. Bank, 2 Mass. App. Ct. 133, 135 (1974). Here the judge, as had the board of appeals, made specific findings regarding each of the prerequisites to a variance. Cass v. Board of Appeal of Fall River, 2Mass. App. Ct. 555,557-558 (1974). Boyajianv. Board of Appeal of Wellesley, 6 Mass. App. Ct. 283, 284 (1978). There was ample evidentiary support for each of those findings, including that of a hardship created by the unique topography of the locus. See Dion v. Board of Appeals of Waltham, 344 Mass. 547, 550-552 (1962); Sherman v. Board of Appeals of Worcester, 354 Mass. 133, 135-136 (1968); Wolfman v. Board of Appeals of Brookline, ante 112, 116 (1983), and cases cited therein. Contrast Wolfson v. Sun Oil Co., 357 Mass. 87, 90 (1970); Costa v. Zoning Board of Appeals of Framingham, 6 Mass. App. Ct. 872 (1978). The judge properly concluded that the granted variance was valid.

Judgment affirmed.

Planning Board of Sandwich v. Board of Appeals of Sandwich, 446 N.E.2d 1077, 15 Mass. App. Ct. 971, 1983 Mass. App. LEXIS 1270 (Mass. Ct. App. 1983).

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446 N.E.2d 1077 (Planning Board of Sandwich v. Board of Appeals of Sandwich) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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