Opinion
09-P-2331
08-11-2011
ROBYN PARKER v. ZONING BOARD OF APPEALS OF MEDFORD & 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
Bettye Ann Blatman, as trustee of the Warren Street Realty Trust, appeals from a judgment of the Land Court annulling a variance granted for the benefit of the trust's property by the zoning board of appeals of Medford (board). For the following reasons, we affirm the judgment.
Analysis. 1. Standing. On appeal, Blatman argues that Parker purchased her property with knowledge of the nonconforming deck so as to accept its presence and to waive any aggrievement, and that she failed to demonstrate any resulting harm by diminution of market value, increase of noise, loss of privacy, loss of air and light, or loss of antidensity benefits, at any point thereafter. We agree with the judge's reasoning that Parker did not accept the presence of the nonconforming deck or waive any rights of aggrievement by reason of her knowledge at the time of her purchase. As he stated, 'When Parker purchased the property at 29/31 Chardon Road, she acquired the right to claim [that] she was aggrieved by her neighbor's alleged zoning violation. . . . This is particularly so where, at the time she purchased, an active judicial appeal was underway challenging the variance . . . and Parker seasonably and successfully moved to intervene in that appeal.' That reason eliminates the contention that Parker had standing to complain only of any injury arising after her purchase.
The judge correctly found that Parker had established aggrievement as required by G. L. c. 40A, § 17. The rear yard setback requirement of the Medford zoning ordinance is a density regulation. Elements of the summary judgment record, especially multiple photographs, show vividly that the proximity of the deck structure (within eleven feet of the wall and windows of Parker's house), its width, its height, and the views from it toward her house, cut her property off from substantial air, light, and views; and that occupants on the various deck floors would inflict noise toward, and decrease the privacy of, occupants of her home. The judge accurately cited closely fitting authority. '[C]rowding of an abutter's residential property by violation of the density provisions of the zoning [scheme] will generally' furnish aggrievement and standing. Dwyer v. Gallo, 73 Mass. App. Ct. 292, 297 (2008). Setback requirements are designed to control density. See Sheppard v. Zoning Bd. of Appeal of Boston, 74 Mass. App. Ct. 8, 12 (2009). See also Bedford v. Trustees of Boston Univ., 25 Mass. App. Ct. 372, 377 & n.4 (1988); Bertrand v. Board of Appeals of Bourne, 58 Mass. App. Ct. 912 (2003); McGee v. Board of Appeal of Boston, 62 Mass. App. Ct. 930, 931 (2004). Parker has made a credible showing of a plausible claim of harm regulated by the municipal zoning code.
2. Validity of the variance. The judge correctly determined that the purported variance was invalid upon both procedural and substantive grounds.
The board's decision consists almost entirely of vague generalities, incorporations of unspecified material by reference, an erroneous application of an unsuitable Superior Court decision, and a suggestion that it was fulfilling the suggestion of the Land Court judge in his 2007 decision reversing so much of the board's decision as declined to order enforcement of the setback standards against the deck structure. General Laws c. 40A, § 10, inserted by St. 1975, c. 808, § 3, requires a body granting a variance from zoning standards to make specific findings 'that owing to circumstances relating to the soil conditions, shape, or topography of [the affected] land or structures,' strict enforcement of the standards would impose 'substantial hardship, financial or otherwise,' and that 'desirable relief' is available without substantial detriment to the public good and without substantial derogation from the purpose of the pertinent ordinance or by-law. General Laws c. 40A, § 15, fifth par., as amended by St. 1987, c. 498, § 3, directs a board to 'set[] forth clearly the reason for its decision.'
The board's decision in this instance is devoid of pertinent findings. That deficiency nullifies the decision. See Warren v. Zoning Bd. of Appeals of Amherst, 383 Mass. 1, 10-11 (1981); McCabe v. Zoning Bd. of Appeals of Arlington, 10 Mass. App. Ct. 934 (1980). Similarly, the absence of any applicable reasoning violates the requirement of c. 40A, § 15, and undermines the board's decision. Without intelligible findings and reasons, neither the parties nor the reviewing courts can understand or rely upon the competence of a zoning board decision.
The purported merits of the decision are equally unsupportable. First, the board shows no awareness of the nature of a variance as defined by c. 40A, § 10. Nothing in the record before either the board or the Land Court relates genuinely to circumstances of lot shape, topography, or soil conditions. Nothing in the record indicates that any such circumstances have imposed hardship upon the trustee's property. Also, as the judge observed, any present claim of economic hardship by reason of the cost of removal of the deck is self-inflicted because Korovillas constructed it without valid permission. As Parker points out, a property owner cannot achieve a variance by creating her own hardship. See Adams v. Brolly, 46 Mass. App. Ct. 1, 4 (1998), and cases cited. For these reasons, the grounds for the allowance of the variance are untenable as a matter of law and arbitrary, capricious, whimsical, and unreasonable. See Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478, 486 (1999).
3. Disposition. In both his 2007 decision (reversing the board's decision refusing to enforce the zoning setback standard against the deck structure) and his 2009 decision (annulling the purported variance granted by the board), the judge commented that his orders operated without prejudice to the property owner's right to seek a special permit under authority of G. L. c. 40A, § 6. We caution the board, as did the judge in his first decision, that the court's reference to the availability of the special permit procedure does not suggest any favorable view toward its allowance. As the judge pointed out, any application for a special permit must earn its allowance upon the merits pursuant to G. L. c. 40A, § 6, and be capable of surviving judicial review. The repeated instances of error on the part of the board throughout the long history of this dispute make that warning especially necessary.
Judgment affirmed.
By the Court (Berry, Meade Sikora, JJ.),