HENRY R. GERYK & another, trustees, vs. ZONING APPEALS BOARD OF EASTHAMPTON & another. [Note 1]

KASS, J. From a denial of an application for a variance by the board of appeals of Easthampton, Henry R. Geryk and Rose V. Geryk, the plaintiffs, have appealed pursuant to G. L. c. 40A, Section 21, as in effect prior to St. 1975, c. 808, Section 3. The variance which the Geryks sought would have permitted them to divide a lot into two lots, each of which would have been below the prescribed minimum lot

Page 684

area, and would have permitted the erection on one of those lots of a two-family house in a zoning district where two-family houses were not permitted as of right.

During the course of the proceedings in Superior Court the Geryks opted for a different variance, which would have allowed them to locate one single-family residence on each of the undersized lots, instead of a single-family residence on one lot and a two-family residence on the second lot, as originally requested.

Acting on the basis of a stipulation of facts by the parties, the judge annulled the decision of the board of appeals, and ordered it to grant a variance for the construction of two single-family houses. This grant of a variance, the judge's order provided, was to be made after a hearing, although it is difficult to imagine what benefit would have derived from such a hearing when the board was already under judicial instruction to grant a variance in all events. To reshape in this manner the relief originally sought from the board of appeals is beyond the power of a reviewing court under G. L. c. 40A, Section 21, and its successor G. L. c. 40A, Section 17, as appearing in St. 1975, c. 808, Section 3.

Under Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555 , 556, 558-560 (1954), and its considerable progeny, a reviewing court may not order the grant of a variance except in the rare case where a variance was denied solely on a legally untenable ground (see e.g., MacGibbon v. Board of Appeals of Duxbury, 369 Mass. 512 , 520 [1976], S. C., 369 Mass. 523 [1976]) or because the decision was arbitrary and capricious (see e.g. Lapenas v. Zoning Bd. of Appeals of Brockton, 352 Mass. 530 , 533-534 [1967]). A court hearing an appeal from the grant or denial of a variance or a special permit is without administrative discretion. As we said recently in Subaru of New England, Inc. v. Board of Appeals of Canton, ante 483, 486 (1979), "a court reviewing a decision of a board denying a permit does not possess the same discretionary power as does the board. . . ." By

Page 685

substituting forms of relief different from those originally asked for, the court engages exactly in the sort of administrative intervention which Pendergast warns against. See also Strand v. Planning Bd. of Sudbury, 5 Mass. App. Ct. 18 , 21-23 (1977); Board of Appeals of Dedham v. Corporation Tifereth Israel, 7 Mass. App. Ct. 876 (1979).

The plaintiffs have argued that the judgment of the trial court was not final and that this appeal, therefore, is premature. According to the plaintiffs the want of finality lies in the fact that the judge remanded the zoning proceeding to the board of appeals for further action and retained jurisdiction over the case. Since the judgment, however, required the grant of a specific variance it was final in the sense that it ordered a result in certain terms and left nothing to the discretion of the board. The retention of jurisdiction by the court appears to have been solely to insure compliance. This appeal does not interrupt the progress of the litigation, cause delay or waste judicial effort by presenting a question that will turn out to be unimportant. See Borman v. Borman, 378 Mass. 775 , 779 (1979). On the contrary, it disposes of the case fully and finally. Cape Ann Land Development Corp. v. Gloucester, 371 Mass. 19 , 25 n.8 (1976). Seymour's Case, 6 Mass. App. Ct. 935 (1978).

The judgment is reversed and a new judgment is to be entered that the decision of the board of appeals was not in excess of its authority. So ordered.