Opinion
No. 06-0559.
February 5, 2009.
FINDINGS OF FACT AND RULINGS OF LAW ON THE PLAINTIFF'S APPEAL OF THE SWANSEA BOARD OF APPEALS' DECISION OF VARIANCE
This matter is before the Court on an appeal pursuant to G.L. c. 40A, § 17 of a variance granted by the Defendant Swansea Board of Appeal ("the Board") to the benefit of the Defendant Arthur Sylvia ("Sylvia"). The subject property is located at 211 Locust Street in Swansea. The Plaintiff Allen L. Jarabek ("Plaintiff" or "Jarabek") is an abutter to the east and north.
A trial was held before the undersigned Justice. Following the evidentiary hearing, the Court, in the company of counsel, took a view of the property.
The Plaintiff submits that the Board failed to find facts sufficient to support a determination that under G.L. c. 40A, § 10 a "hardship" existed on the subject property.
The Defendants in turn challenge the Plaintiff's standing to appeal the Board's decision. The Defendants also submit that on the merits there is sufficient evidence as to the unique topography of the parcel to comprise a statutory hardship.
On the basis of the testimony at trial, the exhibits entered as evidence, the view taken by the Court, and arguments of and submissions by counsel, the Court finds and rules (a) that the Plaintiff has standing, (b) that the evidence is not sufficient to support a finding that a hardship existed, and (c) that the Decision of Variance of the Board of Appeal must, therefore, be annulled.
In so doing, the Court makes the following findings of fact and rulings of law.
Findings of Fact
1. The Plaintiff is a resident of Swansea and an abutter to the parcel at 211 Locust Street.
2. Defendants Charles E. Reed, III, Paul Grillo, and Franklin R. Smith, Jr. were all duly appointed members of the Town of Swansea Zoning Board of Appeals as of May 2006 (collectively, "the Board").
3. Sylvia is the owner of the premises located at 211 Locust Street in Swansea (the "Parcel"). The Parcel is comprised of 2.07 acres. It is improved by a single-family residence, a freestanding garage, and a metal outbuilding. It is accessed by an existing right of way over the property of the abutter to the west, Kenneth Baker.
4. The Parcel is situated in a Rural and Residential District according to the Zoning Map ("Zoning Code") for the Town of Swansea ("Town").
5. A portion of the Parcel is located on an aquifer.
6. On December 7, 2005, Silvia filed a petition with the Board for a variance from the Zoning Code with regard to the frontage and setback requirements for the Parcel in order to create a separate buildable lot for his son.
7. The southerly portion of the Parcel, including the site upon which Sylvia's son intends to build his residence, is subject to seasonal flooding.
8. Without a variance, Silvia could not meet the minimum frontage and setback requirements under the Zoning Code. Specifically, the first of the two lots would only have 40.54 feet of frontage, rather than the 150 feet required by the Zoning Code. In addition, the buildings currently located on the Parcel are too proximate to the north boundary of the property to satisfy the Zoning Code's rear and side setback requirements.
9. The variance petition was duly noticed, and the Board held at least two public hearings. Thereafter in its Decision of Variance dated May 5, 2006, the Board voted 3-0 to grant the variance waiving the frontage requirements for one lot and waiving the rear and setback requirements for it, as well. The Board made the following findings:
(1) A hardship exists;
(2) There are unique conditions which affect this particular parcel of land, which are the wetlands that traverse it and the existence of the ancient right of way;
(3) Desirable relief may be granted without substantial detriment to the public good and without substantially derogating from the intent or purpose of the By-Law; and
(4) Literal enforcement of the By-Law would involve substantial hardship, financial and otherwise, to the petitioner.
10. Jarabek owns the property that abuts the Parcel to the east and north. Jarabek's property to the east is improved by three dwellings and a swimming pool. Like the Parcel, it is served by an in-ground septic system.
Rulings of Law
The Standing Issue.
Persons aggrieved by a Zoning Board of Appeals decision may appeal that decision to the superior court. G. L. 40A, § 17. See Valcourt v. Zoning Board of Appeals of Swansea, 48 Mass. App. Ct. 124, 127 (1999). There is a rebuttable presumption that abutters are persons aggrieved under the meaning of the statute. Marotta v. Board of Appeals of Revere, 336 Mass. 199, 204 (1957). When an abutter's standing is challenged, and that challenge is supported by evidence, the presumption disappears, and his standing becomes a question of fact for the court. Id.
An abutter is a "person aggrieved" under the meaning of the statute if he suffers some infringement of his legal rights as a result of the zoning board decision. Circle Lounge Grille, Inc. v. Board of Appeal of Boston, 324 Mass. 427, 430 (1949). To show an infringement of his or her legal rights, an abutter must demonstrate a particularized injury flowing from the zoning board's action that is special and different from the injury to the community at large. Bell v. Zoning Board of Appeals of Gloucester, 429 Mass. 551, 554 (1999). The abutter's allegation of injury must be based on more than speculation. Maraschino v. Zoning Board of Appeals of Newburyport, 421 Mass. 719, 721-723 (1996).
In this case, Jarabek testified that the construction of a second dwelling and septic system on that portion of the Parcel that is subject to seasonal flooding would lead to increased flooding on his property. Such flooding, Jarabek alleges, would damage Jarabek's septic system and nearby pool. Jarabek's belief was based on his approximately twenty years of experience digging septic systems and foundations.
Jarabek's potential injury has a rational basis in the evidence, is particular to his property and is sufficiently substantial to support standing to appeal.
The Hardship Issue.
A variance may "be based only upon circumstances which directly affect the real estate and not upon circumstances which cause personal hardship to the owner." Huntington v. Zoning Board of Appeals of Hadley, 12 Mass. App. Ct. 710 (1981) (Greaney, J.). See also Maurice Callahan Sons, Inc. v. Board of Appeals of Lenox, 30 Mass. App. Ct. 36, 39-40 (1991). "[S]ubstantial hardship, financial or otherwise", G.L. c. 40A, § 10, is found only where under the unique circumstances it is "not economically feasible or likely that the locus would be developed in the future for a use permitted by the zoning ordinance or by-law." Cavanaugh v. DiFlumera, 9 Mass. App. Ct. 396, 402 (1980). See also 39 Joy St. Condo. Ass'n v. Board of Appeal of Boston, 426 Mass. 485, 490 (1998).
The Huntington case was decided on the definition of hardship under the former version of G.L. c. 40A. However, in the time between the granting of the variance then at issue and the Appeals Court decision the Legislature had enacted the current version. The Court noted: "[Prior] decisions have [been] quite clear by consistently overturning grants of variances predicated only on a showing of personal hardship. The present § 10 [i.e., that provision in effect as of the date of this instant decision] continues this emphasis on the land itself and makes the concept even more restrictive by specifying that the special circumstances justifying the grant of a variance must relate to the 'soil conditions, shape or typography' of such land or structures." Id.
In this case, the Sylvia property clearly has unique topographical features. A stream bisects the property, and there is a sizable man-made pond. These circumstances limit the buildable areas of the Parcel. However, already situated on the Parcel is a single-family dwelling, a garage, and an outbuilding, and there appears to be no impediment to further construction incident to the Parcel's use as residential lot. Accordingly, in its current configuration, the Parcel has a present and future "use permitted by the zoning ordinance or by-law". Cavanaugh, supra. Therefore, there is no statutory basis for a "hardship" under G.L. 40A, § 10, and the Board exceeded its authority by approving the Sylvia variance.
ORDER
The Decision of Variance entered by the Town of Swansea Board of Appeals on May 5, 2006 on Petition #2303 with regard to the subject parcel is ANNULLED .
RELEASE FOR THE PUBLICATION OF JUDICIAL OPINION