Home PLANNING BOARD OF SANDWICH vs. BOARD OF APPEALS OF SANDWICH & others. [Note 1]

15 Mass. App. Ct. 971

March 24, 1983

The planning board of Sandwich sought judicial review of decisions by the board of appeals of Sandwich granting a special permit and variance to authorize condominium development on a tract of land in that town. After hearing, the Superior Court concluded that the decisions of the board of appeals were within its authority, and this appeal ensued. We affirm.

There was sufficient evidence before the judge to support his determination that, in granting the special permit, the board of appeals made all the findings required by the Sandwich zoning by-law. See Shalbey v. Board of Appeal of Norwood, 6 Mass. App. Ct. 521 , 529 (1978). He properly found that the decision was in harmony with the purposes of the Sandwich by-law (G. L. c. 40A, Section 9; Garvey v. Board of Appeals of

Page 972

Amherst, 9 Mass. App. Ct. 856 [1980]), was not based on a legally untenable ground, and was neither arbitrary nor unreasonable (MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 639 [1970]; Garvey, supra).

The judge's findings with respect to the validity of the granted variance, findings premised on a view of the locus and adjacent land as well as evidence adduced at the hearing, must stand unless clearly erroneous. Hunt v. Milton Sav. Bank, 2 Mass. App. Ct. 133 , 135 (1974). Here the judge, as had the board of appeals, made specific findings regarding each of the prerequisites to a variance. Cass v. Board of Appeal of Fall River, 2 Mass. App. Ct. 555 , 557-558 (1974). Boyajian v. Board of Appeal of Wellesley, 6 Mass. App. Ct. 283 , 284 (1978). There was ample evidentiary support for each of those findings, including that of a hardship created by the unique topography of the locus. See Dion v. Board of Appeals of Waltham, 344 Mass. 547 , 550-552 (1962); Sherman v. Board of Appeals of Worcester, 354 Mass. 133 , 135-136 (1968); Wolfman v. Board of Appeals of Brookline, ante 112, 116 (1983), and cases cited therein. Contrast Wolfson v. Sun Oil Co., 357 Mass. 87 , 90 (1970); Costa v. Zoning Board of Appeals of Framingham, 6 Mass. App. Ct. 872 (1978). The judge properly concluded that the granted variance was valid.

Judgment affirmed.


FOOTNOTES

[Note 1] Dean Morse, administrator of the estate of Isabelle Morse, and Milton Schwartz.