CATHARINE HUNTINGTON vs. ZONING BOARD OF APPEALS OF HADLEY & another. [Note 1]

GREANEY, J. The plaintiff, Catharine Huntington, brought this action in the Superior Court to review a decision of the Hadley zoning board of appeals (board). That decision granted the petition of Joseph F. Wanczyk (defendant) for the removal of a condition imposed on a variance previously granted to him which restricted the duration and transferability of the variance. The Superior Court affirmed the decision of the board. We affirm the judgment of the court.

The defendant owns twelve acres of land in Hadley. Since 1958, the defendant has used a portion of this land adjacent to Route 47 for the operation of a business which manufactures

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and sells precast concrete products. In 1961, the town adopted a zoning by-law which prohibited manufacturing in the district where the land is located. Following the adoption of the by-law, however, the defendant was allowed to continue his manufacturing operation as a nonconforming use. See G. L. c. 40A, Section 5, as in effect prior to St. 1975, c. 808, Section 3. See now G. L. c. 40A, Section 6.

Over the next twelve years, the defendant expanded his business substantially, constructing a new building and outfitting it with specialized heavy equipment at a total investment of approximately $170,000. In 1973, the defendant became concerned that the expansion of the business exceeded that permitted for a nonconforming use, and petitioned the board for a variance.

On May 18, 1973, the board granted the defendant a variance allowing the expanded use subject, however, to seven specific conditions enumerated in its decision. The condition in issue here (number 6) restricted the variance to Wanczyk's "lifetime" and it prohibited the variance from being "transferred to anyone else." The 1973 decision was not appealed, and all parties to this action concede the present validity of the variance and the validity of that condition at the time it was imposed. [Note 2]

In 1976, the defendant petitioned the board to remove condition number 6. Since Hadley had not then adopted G. L. c. 40A, as appearing in St. 1975, c. 808, Section 3 (hereinafter present c. 40A), as permitted by St. 1977, c. 829, Section 4, amending St. 1975, c. 808, Section 7, the decision on this petition was governed by the provisions of G. L. c. 40A, as in effect prior to St. 1975, c. 808, Section 3 (hereinafter former c. 40A). See Casasanta v. Zoning Bd. of Appeals of Milford, 377 Mass. 67, 71-73 & nn. 10, 11 (1979); Shalbey v. Board of Appeal of Norwood, 6 Mass. App. Ct. 521, 524-527 (1978).

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After notice, which the trial court held "proper," including notice to abutters, the board held a public hearing on the defendant's petition. See former G. L. c. 40A, Sections 17-18 (now Sections 10-11). The board also viewed the defendant's property and found that the defendant had erected fences, as required by one of the conditions imposed on the 1973 variance, to prevent the manufacturing operation from being visible to abutters or to the public. Based on its view, the board made a general finding that the defendant was, in the words of the trial court, "in substantial compliance with all the conditions imposed" by the 1973 decision.

On March 15, 1976, the board granted the defendant's petition to remove condition number 6. In support of its action, the board stated that the termination of the variance on the defendant's death would cause substantial hardship because it would render his specialized manufacturing equipment useless, or virtually so, thus causing his investment to be lost to his estate. The decision also stated that even if a subsequent board were willing to grant a new variance for this use, the suspension of operations at the defendant's death would inevitably cause a period of uncertainty and lost income for the defendant's family, and that such needless hardship should be foreseen and avoided. The board concluded that "the continuation of all [the] other restrictions provides assurance that there will be no substantial detriment to the public good and that the intent and purpose of the by-law will continue to be met."

The plaintiff, Huntington, is the owner of land abutting the south side of the defendant's property. Located on her land is a building known as the Huntington House, which is an historic structure visited by tourists. The plaintiff, who lives in Boston, opposed the 1973 petition for the variance by means of a letter to the board, which was read at the public hearing. The grounds of her opposition do not appear in the record, nor does it appear whether she stated any opposition to the 1976 petition. It does appear, however, that the board's primary ground of concern in both proceedings was the visibility of the defendant's operation

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to visitors to the Huntington House and to the public traveling on Route 47.

Following the board's decision on the 1976 petition, the plaintiff brought this action against the defendant and the board, alleging that the board exceeded its authority in removing the condition because the requirements for a new variance had not been met. See former G. L. c. 40A, Section 15 (see now Section 10). She did not testify at the hearing in the Superior Court. The trial court found for the defendants, holding that each of the three statutory prerequisites had been met. The court also noted, however, that "as a practical matter" the 1976 decision did not really amount to a grant of a new variance, but rather involved a "modification of an existing variance which had been in effect for . . . [nearly] three years."

The plaintiff rejects the suggestion that the board's action constituted merely a "modification" of the original variance, arguing that the board could properly have removed the condition only upon satisfaction of the requirements for a new variance contained in former G. L. c. 40A, Section 15. The plaintiff argues further that it was the defendant's burden to make such a showing, Warren v. Board of Appeals of Amherst, 383 Mass. 1, 10 (1981), and cases cited, and that the board and the court both erred in ruling that the statutory requirements had been met here, see Raia v. Board of Appeals of No. Reading, 4 Mass. App. Ct. 318, 321 (1976).

In our view, it is unnecessary to consider whether the removal of the condition required the same showing necessary for the grant of a new variance. [Note 3] Nor is it necessary to

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hold that a local zoning board possesses a broad general power to modify substantive conditions attached to an existing variance. [Note 4] Rather, we think that the board's power to

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remove the condition here is most appropriately analyzed in terms of the nature and effect of the condition itself and in light of the statutory concerns relevant to the grant of a variance.

We look first to the statute. Under the former Section 15, the critical factual showing required for a variance was that of unique hardship, i.e., "substantial hardship" which was created by "conditions especially affecting such parcel or such building but not affecting generally the zoning district in which it is located" (emphasis supplied). The exception made available by this statute was a narrow one. At its root is a concern that the grant of a variance be based only upon circumstances which directly affect the real estate and not upon circumstances which cause personal hardship to the owner. "The criteria in the act . . . relate to the land, not . . . [to] the applicant." Dowd v. Board of Appeals of Dover, 5 Mass. App. Ct. 148, 156 (1977) (special permit case). The decisions cited previously (see note 3, supra) have made this differentiation quite clear by consistently overturning grants of variances predicated only on a showing of personal hardship. The present Section 10 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 topography" of such land or structures.

In contrast, the condition in issue here bears no relation to any circumstance which affects the underlying real estate. Nor is it aimed at the nature, character, or extent of the use

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permitted of the estate. [Note 5] Rather, it serves only to limit the duration of the variance itself by tying it to the lifetime and ownership of a particular individual. We view this as inconsistent with the explicit statutory emphasis on the real estate and its use as the basis of the board's inquiry. In effect, such a condition "injects criteria not found in the enabling act." Dowd v. Board of Appeals of Dover, 5 Mass. App. Ct. at 156. We further view it as inconsistent with the generally accepted principle that "a variance applies to the land rather than to its current owner, and . . . runs with the land when it is conveyed to [another] person." 3 Anderson, American Law of Zoning Section 18.64, at 311 & cases cited at n.24 (2d ed. 1977). See 3 Rathkopf, Zoning and Planning Section 38.06[1], at 38-61, and cases cited at nn. 2, 4 and Section 40.02, at 40-2 -- 40-3, and cases cited at n.2 (4th ed. 1981); 6 Rohan, Zoning and Land Use Controls Section 43.02[1], and cases cited at n.15 (1981); 5 Williams, American Land Planning Law: Land Use and the Police Power Section 133.02 (1975). See also Dowd v. Board of Appeals of Dover, supra. Cf. Colonial Acres, Inc. v. North Reading, 3 Mass. App. Ct. 384, 385 (1975).

Personal conditions of the sort presented here are held in disfavor in other jurisdictions. See Fox v. Shriver-Allison Co., 28 Ohio App. 2d 175, 181-182 (1971); 3 Anderson, American Law of Zoning Section 18.69, at 323-324; Strine, The Use of Conditions in Land Use Control, 67 Dick. L. Rev. 109, 133 (1963); Note, Zoning Amendments and Variances Subject to Conditions, 12 Syracuse L. Rev. 230, 237 (1960). See also Dexter v. Town Bd. of Gates, 36 N.Y. 2d 102, 105-106 (1975). As aptly expressed by Chief Justice Kenison in

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Vlahos Realty Co. v. Little Boar's Head Dist., 101 N.H. 460, 463-464 (1958), such restrictions are inappropriate because they "place the emphasis on the regulation of the person rather than the land, and tend to make [a variance] an ad hominem privilege rather than a decision regulating the use of property." In the only Massachusetts case which has addressed the question, the court was inclined to the view that such a condition may be invalid when imposed on a variance. See Todd v. Board of Appeals of Yarmouth, 337 Mass. 162, 169 (1958). [Note 6]

The Legislature has recently made a clear policy judgment rejecting the attachment of such a condition to the grant of a variance. The present Section 10, as appearing in St. 1975, c. 808, Section 3, contains new language which specifically prohibits the imposition of "any condition, safeguards or limitation based upon the continued ownership of the land or structures to which the variance pertains by the applicant, petitioner or any owner." While this section also includes general language retained from the former Section 15, which allowed the board to impose "limitations both of time and of use," it is not clear to us that this language was ever intended to sanction a condition of the sort presented

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here, and the available evidence tends to indicate that it was not. The legislative history of the present G. L. c. 40A, for example, states that the quoted prohibition was inserted in Section 10 for the purpose of eliminating "the practice of some local boards of appeals to condition the grant of a variance on the continued ownership of property by a particular person," which practice was deemed "improper, considering that hardship must be unique to the land or building and not merely to an individual." 1973 House Doc. No. 6200, at 20. See 1972 House Doc. No. 5009, at 66.

Despite the parties' assumption that condition no. 6 was valid under the former Section 15 when imposed, two conclusions now become apparent: (1) the validity of a condition tying the duration of a variance to ownership by a particular person was questionable even under the former statute, in light of the statute's emphatic focus on the land and its use, and in light of the general disfavor in which such conditions are held; and (2) this condition could not now be imposed under the present Section 10, because of that statute's express judgment that such conditions are to be prohibited.

To these conclusions we add the evidence at the hearing in the Superior Court which suggests that the board's decision to impose the condition rested on factors unrelated to the land's use or the operative criteria in Section 15. That evidence shows that the board's concerns in 1973 about the visibility of the business had been substantially satisfied in 1976 by the defendant's erection of fences in compliance with one of the conditions imposed, [Note 7] and that the defendant had substantially complied with the other conditions of the

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variance, all of which the board continued in effect. [Note 8] Moreover, there was testimony by the chairman of the board that condition no. 6 was originally imposed as an additional safeguard to ensure that the manufacturing use would not be continued unless the defendant brought a new petition to remove it, which would necessitate a new public hearing at which the defendant's compliance with the other restrictions would be scrutinized. This testimony suggests that the condition was not intended to be appurtenant to the land, and that the board, in fact, contemplated future relief from its effect if the other restrictions, which did bear directly on the land, were satisfied.

In view of the evidence and for the reasons stated, it makes little sense in this case to force the owner and the board on to the horns of a dilemma. On the one hand, the owner should not be compelled to undertake the virtually impossible burden of proving the Section 15 criteria for a new variance before he can obtain redress. On the other hand, the board should not be forced, if it is inclined to give relief, to bend the theory underlying a variance in the search for a proper solution. We hold that the condition was essentially a personal one which the board could subsequently delete in the exercise of its sound "administrative discretion" (see Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555, 558-559 [1954]; cf. Ranney v. Board of Appeals of Nantucket, 11 Mass. App. Ct. 112, 115-116 [1981]), and we turn to the question whether the board's exercise of its discretion was justified.

In the exercise of its discretion, the board could properly take into account the change effected with respect to such

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conditions by the present Section 10, and the fact that the other conditions, which ran with the land to bind subsequent owners, would continue to regulate the scope of the use. The board could properly consider the defendant's testimony that if the condition were not removed, the business would be lost as a livelihood to his family and the specialized equipment would have to be sold at auction "for 10% of its value," and his further unrebutted testimony that, although the work building might be used for another purpose, the property is unsuitable for farming or for building lots and that the loss of income caused by the operation of the condition might require his family to sell the land following his death.

As to the plaintiff's interest, it may be that she chose not to appeal the original grant of the variance because she felt she could endure a use limited to the defendant's lifetime or his ownership of the property. Although the existence of such an expectation would not preclude the board from removing the condition, it would, if demonstrated, be entitled to consideration. See and contrast Day v. Zoning Bd. of Review of Cranston, 92 R.I. 136, 139-140 (1961) (quashing decision of board which removed a condition, on ground that abutters had withdrawn objections to the original grant of the variance in reliance on such restriction). Cf. Shuman v. Aldermen of Newton, 361 Mass. 758, 764 (1972). See generally Note, Indiana Variance Proceedings and the Application of Res Judicata, 46 Ind. L.J. 286, 289-290 (1971). Here, however, it has not been shown that the board failed to consider any legitimate expectations which the plaintiff might have harbored, or that it accorded her interest little or no weight. Beyond that point, the record does not specify the grounds of the plaintiff's opposition to the 1973 petition, and the plaintiff did not appear before the board or the court in 1976 to express her reliance on the condition, or to articulate what harm she might incur from its removal.

Finally, the board found, on the evidence before it, that the use as restricted by the remaining conditions could continue

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beyond Wanczyk's ownership of the land without any "substantial detriment to the public good." See former Section 15 (now Section 10). That finding, added to the other considerations previously discussed, indicates that removal of the condition is in conformity with the goal that the zoning law be applied to further, not hinder, the stabilization of land use. See Kane v. Board of Appeals of Medford, 273 Mass. 97, 104 (1930); Yaro v. Board of Appeals of Newburyport, 10 Mass. App. Ct. 587, 589-590 (1980). We conclude that the board's decision to delete the condition was proper.

Judgment affirmed.