RICHARD NESBITT v. JOHN J. HENRY, Clerk, and ALFRED BUCCILLI, JOHN CAMMARATA, HARVEY CORIN, NICK D’ANGELO, ROBERT A. MARRA, JR. and MICHAEL G. TUCKER, as they comprise the ZONING BOARD OF APPEALS of the City of Revere, and THOMAS CORBETT and DARLENE CORBETT

By virtue of this action, filed on October 22, 2007, Richard Nesbitt (plaintiff) contests the grant of a variance to Thomas Corbett and Darlene Corbett (defendants) by decision of the City of Revere Zoning Board of Appeals (Board) of October 3, 2007. Plaintiff’s Amended Complaint, filed on December 12, 2007, purports to include five distinct causes of action, the first of which encompasses a claimed violation G. L. c. 39, § 2B, the Open Meeting Law. This claim must be dismissed sua sponte, however, given the absence of subject matter jurisdiction in this court. [Note 1]

The remaining claims, both procedural and substantive which plaintiff advances as separate causes of action, will be viewed collectively as components of this G.L. c. 40A, § 17 appeal.

On January 8, 2008, plaintiff filed a Motion for Summary Judgment (Motion) together with a supporting memorandum, appendix, and Affidavit of Richard Nesbitt. The Motion was argued on February 29, 2008 by plaintiff’s attorneys Joanna E. Packebusch and Gordon N. Schultz. Neither the governmental nor individual defendants submitted opposing memoranda, nor did any of them appear at the hearing. [Note 2]

I. Factual Background

The defendants Thomas and Darlene Corbett own and occupy the property known and numbered as 100 Harris Street (locus) in Revere, Massachusetts, in an RB Zoning District. [Note 3] The plaintiff, in turn, is the owner/occupant of the property at 104 Harris Street in Revere. Defendants’ property is currently improved by a two story building on a footprint of approximately 1345 square feet. The lot itself is undersized at 7,865 square feet. Pursuant to § 17.24.10 of the Revere Zoning Ordinance (the Ordinance), the minimum size of a lot in the RB [Note 4] Zoning District is 8000 square feet. [Note 5] Defendants’ proposed construction (project) is described in the Board’s decision as “a…three story addition exceeding 30 ft. in height, with a garage under the proposed addition.” [Note 6] This description is at odds with that appearing on the plot plan accompanying defendants’ application. That plan describes the addition as a “2 Story Add’n.” [Note 7] Further, the plan depicts an addition having a footprint of 22 by 33 feet, but occupying 660 square feet, rather than the correct figure of 726 square feet. These discrepancies may be no more than typographical in nature. By all accounts, the proposed addition is three stories in height, with a footprint of 726 square feet. However, the variance application is flawed in other respects. For example, in answer to the query, “What is the nature of the appeal or variance requested in this application?” the applicants reply simply “Three stories.” To the next question, which asks for a description of the soil conditions, shape or topography of the locus which require the applicant to seek a variance,” the applicants merely respond, “GOOD.” When asked to describe how the enforcement of the Ordinances would involve a substantial hardship to the applicants, the defendants recite that they were seeking to “take care of an elderly parent…giving her a nice place to live independently.”

Public hearing on the variance application was scheduled for August 22, 2007 and to that end, notice appeared in the Revere Journal on August 8 and 15, 2007. [Note 8], [Note 9] Plaintiff filed a written opposition to the variance application with the Revere City Clerk on August 22, 2007. [Note 10] Though he appeared for the hearing on that date, the matter was continued until September 26, 2007 [Note 11] owing to the lack of a quorum. Thereafter, plaintiff appeared at the rescheduled hearing but was not afforded an opportunity to be heard. [Note 12] Rather, the Board announced that it would be going into ‘closed session’ to make a decision on defendants’ variance application. [Note 13] That decision, dated September 26, 2007, indicates that there was a unanimous vote by the five Board members in favor of granting the variance. Soon thereafter, on October 3, 2007, the Board filed its decision with the Revere City Clerk.

The text of the decision recites that defendants’ application requests “a variance of [Ordinance § 17.24.10], building height [Note 14] and stories [Note 15] and [Ordinance § 17.28.050(F)] undersized driveway width.” [Note 16] Apparently, the applicants did not seek, and the Board did not consider, whether defendants’ proposed project required a variance under § 17.24.031 [Note 17] despite that section’s seeming prohibition of construction on undersized residential lots.

In support of its decision to grant the requested variance, the Board made the following findings: A hardship does exist with respect to this lot. The ZBA concludes that the appellant cannot reasonably make full use of this lot without a variance being granted.

A literal enforcement of the [Ordinance] would prevent the appellant from using the existing structure to its full use.

The ZBA finds that by granting the variance, the general character of this area will not be changed and the public good will be served.

No additional reasons are offered by way of explanation for the Board’s decision.

II. Summary Judgment Standard

Summary judgment is appropriate when “pleadings, depositions, answers to interrogatories, and responses to requests for admission…together with affidavits…show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Mass. R. Civ. P. 56(c). The moving party bears the burden of proving the absence of controversy over material facts and that he or she deserves a judgment as a matter of law. See Highlands Ins. Co. v. Aerovox Inc., 424 Mass. 226 , 232 (1997). The substantive law which controls the outcome of the issue determines which facts are material for purposes of summary judgment. Houghton v. Johnson, 2006 WL 2304036 (Mass.Land Ct.), citing, e.g., Hogan v. Riemer, 35 Mass. Ct. 360, 364 (1993).

This demonstration by the moving party need not encompass affidavits or other similar materials negating the opponent’s claim. Kourouvacilis, 410 Mass. at 713, citing Celotex Corp., 477 U.S. at 323. “The burden on the moving party may be discharged by showing that there is an absence of evidence to support the non-moving party’s case.” Kourouvacilis, 410 Mass. at 711, citing Celotex Corp., 477 U.S. at 322. Thus, “regardless of whether the moving party accompanies its summary judgment motion with affidavits, the motion may, and should, be granted so long as whatever is before the…court demonstrates that the standard for the entry of summary judgment is satisfied.” Kourouvacilis, 410 Mass. at 713, quoting Celotex Corp., 477 U.S. at 323-324. [Note 18]

A corollary to the moving party’s burden is that the court is to “make all logically permissible inferences” from the facts in the non-moving party’s favor. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). That said, “the right of a party facing summary decision to have the facts viewed in a favorable light,…does not entitle that party to a favorable decision” and reliance upon mere “bald conclusions” is an inadequate means of defeating the motion. Catlin v. Bd. of Registration of Architects, 414 Mass. 1 , 7 (1992).

The possibility that the non-movant could elicit material evidence on cross-examination of witnesses is not grounds for denying summary judgment. Thompson v. Commonwealth, 386 Mass. 811 (1982). Once the moving party has met its burden, to withstand summary judgment the non-movant must allege specific facts showing that there is a genuine issue of material fact. Baldwin v. Mortimer, 402 Mass. 142 , 143-144 (1988), citing Godbout v. Cousens, 396 Mass. 254 , 261 (1985). “In determining whether a factual dispute is “genuine,” the Court must determine whether the evidence is such that a reasonable [factfinder] could return a verdict for the nonmoving party. Steffen v. Viking, 441 F.Supp.2d 245, 250 (2006), citing, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The function of the court at summary judgment is not to determine the credibility of witnesses or weigh the evidence. Atty. Gen. v. Brown, 400 Mass. 826 , 832 (1987). Nonetheless, Mass R. Civ. P. 56(c) permits the disposition of controversies if in essence there is no real dispute as to the salient facts, or resolution of the matter depends solely upon judicial determination of a question of law. The record before the court reflects no genuine factual dispute, material under the relevant law, which would preclude a legal determination regarding the Board’s authority to issue the disputed variances. Consequently, the case is ripe for summary judgment.

III. Discussion

Under G.L. c. 40A, § 10, the Board is vested with the authority to vary the application of applicable zoning ordinances. Generally, the Board’s power to grant a variance “is to be sparingly exercised, and only in rare instances and under exceptional circumstances peculiar in their nature, and with due regard to the main purpose of [the] Zoning Ordinance to preserve the property rights of others.” Coleman v. Board of Appeal of Boston, 281 Mass. 112 , 117 (1932). The grant of a variance must be conditioned upon strict adherence to detailed statutory guidelines. First, a public hearing must be held on the variance application, and notice given of such hearing pursuant to the provisions of G.L. c. 40A, § 11. Subsequent to the properly noticed public hearing, the Board has the authority to grant a variance of specific provisions of the Ordinance, but only if the Board specifically finds that: 1) owing to circumstances relating to soil conditions, shape or topography of the locus, 2) especially affecting the locus, but not generally affecting the zoning district in which it is located, 3) literal enforcement of the Ordinance would involve substantial hardship, financial or otherwise to petitioner; and that, 4) relief may be granted without substantial detriment to the public good, and 5) without substantially derogating from the intent or purpose of the ordinance. See G.L. c. 40A, § 10.

When granting a variance, the permit granting authority must observe these requirements stringently, and “make specific findings that each statutory requirement has been met,” clearly setting forth “the reason or reasons for its decision.” Josephs v. Board of Appeals of Brookline, 362 Mass. 290 , 295 (1972); see also Warren v. Board of Appeals, 383 Mass. 1 , 9-10 (1981) (variance cannot be granted unless all of the statutory requirements are satisfied); Guiragossian v. Board of Appeals, 21 Mass. App. Ct. 111 (1986) (requirements for grant of variance are conjunctive, not disjunctive). A decision of a board of appeals which fails to make the required findings “cannot stand.” Josephs, 362 Mass. at 295, citing Planning Bd. of Springfield v. Board of Appeals of Springfield, 355 Mass. 460 , 462 (1969).

On appeal from a variance decision, the reviewing court must determine the facts, apply the governing principles of law, “and then inspect the decision of the board and enter such decree as justice and equity may require.” Josephs, 362 Mass. at 292, citing Blackman v. Board of Appeals of Barnstable, 334 Mass. 446 , 449 (1956). The variance will be annulled unless the reviewing court finds that the requisites of G.L. c. 40A, § 10 have been met. Josephs, 362 Mass. at 292, citing Coolidge v. Zoning Bd. of Appeals of Framingham, 343 Mass. 742 . The burden is on “the petitioner who received the variance, and the board granting it, to produce evidence that each discrete statutory requirement has been met and that the variance is justified.” Kirkwood v. Board of Appeals, 17 Mass. App. Ct. 423 , 427 (1984).

Bearing in mind these legal precepts and considering the summary judgment record in the light most favorable to the defendants, I conclude that the Board exceeded its authority by granting the variance at issue. The Board Failed to Make the Requisite Statutory Findings

A fatal flaw in the Board’s decision derives from its failure, readily apparent on the record, to render the necessary statutory findings. To the extent findings have been made, they are at best conclusory in nature, unsupported by specific evidence, and bear only a passing resemblance to the criteria established by statute. Consequently, the court is left to speculate as to the underlying bases for the defendants’ application, as well as to the Board’s reasons for awarding the variance. Guiragossian, 21 Mass. App. Ct. 111 , 115 (1986) (because requirements for grant of variance are conjunctive, not disjunctive, failure to establish any one of them is fatal). [Note 19]

Two examples of the Board’s failure will suffice, as follows:

A. No unique soil, shape or topography conditions

A variance cannot be issued pursuant to G.L. c. 40A, § 10 unless it can be demonstrated that owing to soil conditions, shape, or topography unique to the locus, a substantial hardship would result were the ordinance to be literally enforced. Yet, a review of the Board’s decision fails to disclose any reference, either directly or otherwise, to “soil conditions, shape or topography.…”

A critical characteristic of the locus at issue, is its modest size. However, as noted, neither the Board nor the applicant has raised the issue of an undersized lot as a basis for a variance. In any event, lot size is a different attribute from lot shape and so is “not a consideration under G.L c. 40A, § 10.” McCabe v. Zoning Board of Appeals of Arlington, 10 Mass. App. Ct. 934 (1980); see Mitchell v. Board. of Appeals, 27 Mass. App. Ct. 1119 , 1120 (1989) (Board exceeded its authority in granting variance for the reason that the lot was too small to qualify as buildable lot).

B. No showing of substantial hardship

The Board’s decision is further flawed by the absence of findings or evidence relating to any hardship that defendants would likely incur were the Ordinance to be literally enforced. To the extent that a hardship has been articulated, [Note 20] it is wholly unrelated to the relevant factors enumerated in G. L. c. 40A, § 10. The absence of a hardship which accords with the statutory criteria, constitutes further grounds for the annulment of the variance. See DiGiovanni v. Board of Appeals, 19 Mass. Ap. Ct. 339, 348-349 (1985) (absence of hardship is reason to deny variance);

Conclusion

The plaintiff has met his burden as moving party at summary judgment of establishing that there is no genuine issue of material fact to be tried which would preclude a judgment as a matter of law, in his favor. For the foregoing reasons, I find that the Board exceeded its statutory authority in granting the subject variance to the defendants.

Accordingly, it is hereby

ORDERED that the plaintiff’s First Cause of Action be, any hereby is, DISMISSED.

It is hereby further

ORDERED that plaintiff’s Motion for Summary Judgment be, and hereby is,

ALLOWED. It is hereby further

ORDERED that the decision of the Board be, and hereby is, ANNULLED.

SO ORDERED.

Judgment to issue accordingly.

By the Court (Grossman, J.)