Opinion
10-P-2164
02-06-2012
MICHAEL BURGRAFF v. ZONING BOARD OF APPEALS OF PHILLIPSTON & another.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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. .
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A judge of the Housing Court set aside the decision of the defendant, the zoning board of appeals of Phillipston (board), denying the plaintiff's application for a variance, and ordered that the variance be granted. The board appeals. We reverse.
Background. The plaintiff owns a parcel of land with a single family dwelling located at One East Road in Phillipston. The neighborhood is generally comprised of nonconforming, undersized single family, camp-type structures, which predate the local zoning by-law. The plaintiff sought a variance to replace his current nonconforming residential structure with a new home. The new building would run afoul of multiple setback and dimensional requirements in the zoning by-law. In denying the variance, the board concluded that the 'proposed plan does not meet zoning standards.'
Other than this final statement, the board did not set forth additional detailed findings that underlay the decision to deny the variance. The judge criticized the board for its omission of detailed findings. The criticism is apt. However, that omission does not justify the judge's reversal of the board. 'Since review is de novo, . . . the board's decision carries no evidentiary weight on appeal.' Kirkwood v. Board of Appeals of Rockport, 17 Mass. App. Ct. 423, 427 (1984).
Discussion. A variance is to be granted only where it can be specifically found that:
'[a] 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 ordinance or 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.'G. L. c. 40A, § 10, inserted by St. 1975, c. 808, § 3.
In this case, the judge's decision does not set forth findings that establish either uniqueness or a hardship under c. 40A, § 10. See Warren v. Zoning Bd. of Appeals of Amherst, 383 Mass. 1, 10-11 (1981), quoting from NcNeeley v. Board of Appeal of Boston, 358 Mass. 94, 103 (1970) (judge's failure to specifically find facts establishing statutory prerequisites would render granting of variance 'a bare recital of the statutory conditions essential to the granting of a variance').
Some property owners in the area have built larger, more modern homes after obtaining variances from the board. The board maintains that the judge erred in citing the board's decisions to allow variances for nearby properties as a reason to annul the board's decision. We agree. See Spalke v. Board of Appeals of Plymouth, 7 Mass. App. Ct. 683, 686-687 (1979) (building permit issued to third party was an irrelevancy because question before trial judge was what the law required as to lot in question based on facts presented). The case cited by the judge, SCIT, Inc. v. Planning Bd. of Braintree, 19 Mass. App. Ct. 101, 107-109, (1984), considers the uniformity requirement of G. L. c. 40A, § 4. It does not support the proposition that a zoning board is required to approve a property owner's application for a variance merely because it did so for similarly situated property owners.
As to the uniqueness factor for a variance under G. L. c. 40A, § 10, in a conclusory description, the judge wrote merely that 'Plaintiff's lot is unique to the residential zoning district relative to shape and small size.' This simply repeats the statutory language and does not address how the shape of the plaintiff's lot is unique within the zoning district. See Warren, supra. Although the judge noted several conditions relating to the lot's size, including the overall area of 4,100 square feet and the twenty-one feet of lake frontage, and that the new structure would expand the footprint of the current structure by eighteen percent, circumstances relating to 'size' are not a substitute for circumstances relating to 'shape.' See Tsagronis v. Board of Appeals of Wareham, 415 Mass. 329, 332 (1993); Shafer v. Zoning Bd. of Appeals of Scituate, 24 Mass. App. Ct. 966, 967 (1987).
As to the hardship factor, the judge concluded that '[o]wing to conditions especially affecting plaintiff's lot, but not generally affecting the zoning district in which it is located, literal enforcement of the zoning by-law would impose substantial hardship on plaintiff,' because '[t]he current zoning by-laws would preclude the construction of any building on the property.' This hardship, however, is again owed to the small lot size and not to unique soil conditions, shape, or topography. See Tsagronis, 415 Mass. at 331-333 (deficiencies in area and frontage and failures to meet dimensional requirements are not statutory hardships arising from circumstances relating to shape); Kirkwood v. Board of Appeals of Rockport, 17 Mass. App. Ct. 423, 431 (1984) (zoning by-law depriving owner of most beneficial use of his property or of potential economic advantage does not qualify as substantial hardship).
The plaintiff also applied for a special permit to expand the prior nonconforming structure on the locus. Though the board argues that the plaintiff was not entitled to such a permit, the plaintiff now claims that his application for one was unnecessary, and there was no mention of it in the Housing Court judge's findings. Hence, we do not address the issue.
Judgment reversed.
By the Court (Berry, Cohen & Sikora, JJ),