Home HARRY P. MCCABE & another vs. ZONING BOARD OF APPEALS OF ARLINGTON & another.

10 Mass. App. Ct. 934

December 10, 1980

1. The trial judge correctly ruled that the defendant board of appeals did not comply with G. L. c. 40A. Section 10, as most recently amended by St. 1977, c. 829, Section 4B, because it failed to make a specific finding concerning the locus 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, a literal enforcement of the provisions of the ordinance or by-law would involve substantial hardship . . . to the petitioner or appellant." The board made no findings at all concerning soil conditions or topography. See Barnhart v. Board of Appeals of Scituate, 343 Mass. 455 , 457 (1962). Its references to "shape" lead us to believe that it confused the "shape" of the lot with its "size," which is a different attribute and a consideration which Section 10 does not include. The lot was rectangular like all other lots in the area. In short, the failure to make the necessary finding as to shape is fatal. See Spaulding v. Board of Appeals of Leicester, 334 Mass. 688 , 692 (1956). 2. Our affirmance of the judgment is without prejudice to the right of the appropriate parties to test the validity of the 1975 zoning by-law amendment pursuant to the remedy in G. L. c. 240, Section 14A, and G. L. c. 185, Section 1 (j 1/2), or under any other law which may permit such a test. See Devine v. Saugus, 5 Mass. App. Ct. 885 , 885-886 (1977).

Judgment affirmed.