GIULIO MAMBRO and LISA MAMBRO v. ROBB KYDD, EILEEN FARRELL, CHRIS MECHALIDES, CLAIRE CLOUTIER, and CHERYL BRADLEY, as members of the ZONING BOARD OF APPEALS OF THE TOWN OF TYNGSBOROUGH

Plaintiffs, Giulio Mambro and Lisa Mambro, commenced this action on September 8, 2006, as an appeal, pursuant to G.L. c. 40A, § 17, of a decision of the defendant, the Zoning Board of Appeals of the Town of Tyngsborough, to deny the plaintiffs’ application for a variance concerning a parcel of real property, known as and numbered 14 Upton Drive in Tyngsborough.

On December 1, 2008, the Court held a view, in the presence of counsel. Trial was held on December 2, 2008. Pamela St. Armand reported the testimony. Testifying were March R. Welch, Giulio Mambro, Theodore M. Flanders, and Mark E. Dupel for plaintiffs. Eleven exhibits were admitted into evidence. This is the matter presently before the Court.

After reviewing the record before the Court, I find that the following facts:

1. Plaintiffs, Giulio Mambro and Lisa Mambro, are owners of a parcel of land, known as and numbered 14 Upton Drive in Tyngsborough (“Mambro Property”).

2. The Mambro Property was originally divided in 1946 as part of the “Breezy Crest” subdivision.

3. The Mambro Property is located on a curve of Upton Drive.

4. The Mambro Property is a quadrilateral, wedge-shaped lot.

5. The Mambro Property has frontage of thirty-one point two feet (31.20’).

6. The four other lots of the same subdivision on the same curve of Upton Drive have similar dimensions and frontage. (A Decision Sketch is attached).

7. At the time the Mambro Property was created, the Town of Tyngsborough had no lot dimension requirements.

8. On May 20, 1955, Tyngsborough adopted Zoning By-Laws, including lot dimension requirements.

9. The Town of Tyngsborough Zoning By-Law permits a previously conforming lot, made nonconforming by change in the zoning by-law, to be built upon and used as a single-family residence provided that, in relevant part, “[t]he lot had at least…50 feet of frontage at the time the boundaries of the lot were defined….” § 2.15.11.

10. The Mambro Property has never been developed.

11. It is undisputed that the Mambro Property is a nonconforming lot, which meets all the requirements of § 2.15.11 of the Tyngsborough Zoning By-Law, except the frontage requirement.

12. On or about July 15, 2006, plaintiffs applied to the Tyngsborough Zoning Board of Appeals for a variance of the frontage requirement of eighteen point eight feet (18.80’). On August 10, 2006, following a public hearing, the Board of Appeals voted to deny the variance application. On August 23, 2006, the decision of the board was filed with the Tyngsborough Town Clerk.

13. The Board of Appeals’ decision states as one of its grounds that “there was no hardship.”

14. This appeal followed.

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General Laws, chapter 40A, § 17 requires that “[t]he court shall hear all evidence pertinent to the authority of the board or special permit granting authority and determine the facts, and, upon the facts as so determined, annul such decision if found to exceed the authority of such board or special permit granting authority or make such other decree as justice and equity may require.” 40A, § 17. The Supreme Judicial Court has interpreted § 17 to require that a Court hearing an appeal pursuant to 40A, § 17 apply a combination of de novo review and deference to the judgment of the municipal authority. Bicknell Realty Co. v. Bd. of Appeal of Boston, 330 Mass. 676 , 679 (1953) (and case cited). The Trial Court must review the evidence and make findings of fact without deference to the board’s findings. Id.; Willard v. Bd. of Appeals of Orleans, 25 Mass. App. Ct. 15 , 24 (1987); see G.L. c. 40A, § 17. In this review, the Court is not limited to the evidence that was before the board. Bicknell Realty Co., 330 Mass. at 679; Marr v. Back Bay Architectural Cmm’n, 32 Mass. App. Ct. 962 , 963 (1992); Crittenton Hastings House of the Florence Crittenton League v. Bd. of Appeal of Boston, 25 Mass. App. Ct. 704 , 713-24 (1988).

However, this review is circumscribed by the requirement to defer to the judgment of the municipal board. Pendergast v. Bd. of Appeals of Barnstable, 331 Mass. 555 , 557-58 (1954); Geryk v. Zoning Appeals Bd. of Easthampton, 8 Mass. App. Ct. 683 , 684 (1979); S. Volpe & Co., Inc. v. Bd. of Appeals of Wareham, 4 Mass. App. Ct. 357 , 360 (1976). The Court is solely concerned with “the validity but not the wisdom of the board’s action.” Wolfman v. Bd. of Appeals of Brookline, 15 Mass. App. Ct. 112 , 119 (1983). A Court hearing a § 17 appeal is not authorized to make administrative decisions. Pendergast, 331 Mass. at 557-58; Geryk, 8 Mass. App. Ct. at 684. If reasonable minds may differ on the conclusion to be drawn from the evidence, the board’s judgment is controlling. ACW Realty Mgmt., Inc. v, Planning Bd. of Westfield, 40 Mass. App. Ct. 242 , 246 (1996); Dowd v. Bd. of Appeals of Dover, 5 Mass. App. Ct. 148 , 154-55 (1977); Copley v. Bd. of Appeals of Canton, 1 Mass. App. Ct. 821 (1973). However, in limited circumstances the trial court may substitute its judgment for that of the board’s, where “justice and equity” require. G.L. c. 40A, § 17; Pendergast, 331 Mass. at 558.

Therefore, the Court may overturn the board's decision only if the decision is “based on a legally untenable ground or is unreasonable, whimsical, capricious or arbitrary.” Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 72 (2003); MacGibbon v. Bd. of Appeals of Duxbury, 356 Mass. 635 , 639 (1970); ACW Realty Mgmt., Inc., 40 Mass. App. Ct. at 246. However, where the Court’s findings of fact support any rational basis for the municipal board’s decision, that decision must stand. MacGibbon, 356 Mass. at 639; Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349 , 356 (2001); ACW Realty Mgmt., Inc., 40 Mass. App. Ct. at 246.

A variance is an authorization to deviate from applicable zoning bylaw or ordinance, where development or use of the land would otherwise be prohibited by the dimensional or use requirements. See Black’s Law Dictionary, 1589 (8th ed. 2004); Mark Bobrowski, Handbook of Massachusetts Land Use and Planning Law, 251 (2nd ed. 2002). The primary purpose of the variance granting power is to provide a mechanism by which the municipal authority may adjust its zoning requirements where strict application is not necessary in a particular case to achieve the public purpose of the zoning ordinance or bylaw. The Report of the Department of Community Affairs Relative to the Proposed Changes and Additions to the Zoning Enabling Act, Mass. H.R. Rep. No. 5009, at 62 (1972). Without this flexibility, uniform application of zoning requirements might result in unnecessary interference with private property rights and unconstitutional takings of land rendered useless. See Penn Central Transp. Co. v. New York City, 438 U.S. 104, 127 (1978).

However, zoning law requires uniformity of land use within each district, and therefore, “the power of variation 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 zoning ordinance to preserve the property rights of others….” Hammond v. Bd. of Appeal of Springfield, 257 Mass. 446 , 448 (1926) (and cases cited); Euclid v. Ambler Realty Co., 272 U.S. 365 (1926). Therefore, “no one has a legal right to a variance….” Pendergast v. Bd. of Appeals of Barnstable, 331 Mass. 555 , 559 (1954); Damaskos v. Bd. of Appeals of Boston, 359 Mass. 55 , 61 (1971) (and cases cited); see generally DiGiovanni v. Bd. of Appeals of Rockport, 19 Mass. App. Ct. 339 (1985).

General Laws chapter 40A, § 10 authorizes the permit granting authority to grant a variance where:

owing to circumstances relating to the soil conditions, shape, or topography of such land or structures and especially affecting such land or structures 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, financial or otherwise, to the petitioner or appellant, and that desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of such ordinance or by-law.

40A, § 10. Therefore, a municipal authority may not grant a variance unless all the statutory factors have been met. Planning Bd. of Springfield v. Bd. of Appeals of Springfield, 355 Mass. 460 (1969); Barnhart v. Bd. of Appeals of Scituate, 343 Mass. 455 , 457 (1962); Spaulding v. Bd. of Appeals of Leicester, 334 Mass. 688 , 692 (1956). However, even where each of these factors is met, this authority is discretionary, and the municipal authority may refuse to grant the relief. Brizzese v. Bd. of Appeals of Hingham, 343 Mass. 421 , 423 (1962); Davis, 52 Mass. App. Ct. at 356; ACW Realty Mgmt., Inc., 40 Mass. App. Ct. at 246-47; Schiffone v. Zoning Bd. of Appeals of Walpole, 28 Mass. App. Ct. 981 , 984 (1990); see G.L. c. 40A, § 10; see generally Whelan v. Zoning Bd. of Appeals, 430 Mass. 1009 (2000); Gamache v. Town of Acushnet, 14 Mass. App. Ct. 215 (1982). Unlike the detailed findings that are necessary to support the grant of zoning relief, a denial of such relief requires only a general statement of reason. Davis, 52 Mass. App. Ct. at 356; ACW Realty Mgmt., Inc., 40 Mass. App. Ct. at 246-47; Gamache v. Town of Acushnet, 14 Mass. App. Ct. 215 , 220 (1982).

Furthermore, although the denial of a special permit or variance may be challenged on the grounds that the municipal authority acted in bad-faith, “[t]here is every presumption in favor of the honesty and sufficiency of the motives actuating public officers in actions ostensibly taken for the general welfare.” Memphis Corp. v. Tadesco, 8 LCR 166 , 170 (2000) (Misc. Case No.234095) (Lombardi, J.) (quoting LaPointe v. License Bd. of Worcester, 389 Mass. 454 , 459 (1983)).

Section 2.15.11 of the Tyngsborough Zoning By-Law permits a previously conforming lot, made nonconforming by change in the zoning by-law, to be built upon and used as a single-family residence provided that, in relevant part, “[t]he lot had at least…50 feet of frontage at the time the boundaries of the lot were defined….” § 2.15.11.

In the instant case, it is undisputed that the Mambro Property is a nonconforming lot but does not meet the fifty foot, frontage requirement of § 2.15.11 and, therefore, is not permitted to be built upon or used as a single-family residence. As plaintiffs have no legal right to a variance, the decision was entirely within the discretion of the Zoning Board of Appeals. The board found that the Mambro Property suffered no hardship as a result of the enforcement of the zoning by-law. There is nothing in the record demonstrating that this decision was arbitrary, capricious, or whimsical or otherwise exceeded the board’s authority. Rather, the Board of Appeals acted appropriately to uphold the Tyngsborough Zoning By-Law and reserve its variance granting power to rare instances. Accordingly, I rule that the Zoning Board of Appeals of the Town of Tyngsborough acted properly in its decision to deny the variance.

Even if plaintiffs had a right to a variance, the Mambro Property does not meet the statutory requirements of G.L. c. 40A, § 10. Generally, “failure to meet dimensional requirements does not satisfy the odd shape criterion of the statute….” Tsagronis v. Bd. of Appeals of Wareham, 415 Mass. 329 , 332 (1993); Warren v. Zoning Bd. of Appeals of Amherst, 383 Mass. 1 ,11 (1981); see generally Arrigo v. Planning Bd. of Franklin, 12 Mass. App. Ct. 802 (1981); however cf. Paulding v. Bruins, 18 Mass. App. Ct. 707 (1984); Adams v. Brolly, 46 Mass. App. Ct. 1 (1998). The reason for this rule is that “the hardship has nothing to do with the shape of the land but rather is due to the failure of the owner of the locus to construct a house on the undersized locus before statutory protections against zoning changes ran out.” Whelan, 430 Mass. at 1009 (citing Tsagronis, 415 Mass. at 332). Furthermore, “[i]f the Legislature intended the mere fact of a deficiency in the required frontage of a lot to be sufficient, without more, to satisfy this particular prerequisite for a variance, it is difficult to believe that they would not have said so in this statute.” Warren, 383 Mass. at 11 (Ninety eight feet (98’) of frontage in a district requiring one hundred feet (100’) was not a sufficient circumstance to qualify the lot for a variance).

In the instant case, it is undisputed that the Mambro Property meets every requirement for a buildable, single-family, residential lot, pursuant to § 2.15.11 of the Zoning By-Law, except for frontage. Therefore, any hardship suffered by the Mambro Property as a result of literal enforcement of the Tyngsborough Zoning By-Law is not attributable to its shape, but merely its lack of frontage.

Plaintiffs cite Paulding v. Bruins as authority for a ruling that the shape of a lot resulting in insufficient frontage meets the statutory requirements. 18 Mass. App. Ct. 707 (1984). However, the Paulding case is distinguishable. The lot at issue in Paulding was a so-called “pork-chop” lot, consisting of a narrow strip of land, fifteen feet wide, extending four hundred feet. Id. at 708. Here, The Mambro Property is a quadrilateral-shaped lot with thirty-one point two feet of the required fifty feet of frontage. Far from the extremely unusual “pork-chop” shape of the Paulding lot—which the Trial Court Judge found to be unique in the neighborhood and zoning district—The Mambro Property is a wedge shape, common to the five lots of the subdivision in the area of the curve of Upton Drive. Id. at 711.

Moreover, the decision appealed in Paulding was the board of appeals’ grant of a variance. Here plaintiffs ask the Court to annul the board’s denial of a variance. It is a far simpler task to evaluate a board’s grant by ensuring that the lot at issue qualifies under the requirements of G.L. c. 40A, § 10. That is not the case here. Even when the lot qualifies for a variance under § 10, a board’s denial is discretionary, and unless arbitrary, the Court must defer to its judgment. Brizzese, 343 Mass. at 423; Davis, 52 Mass. App. Ct. at 356; ACW Realty Mgmt., Inc., 40 Mass. App. Ct. at 246-47; Schiffone, 28 Mass. App. Ct. at 984; see G.L. c. 40A, § 10. “[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…or because the decision was arbitrary and capricious.” Geryk, 8 Mass. App. Ct. at 684. Therefore, the Paulding case does not grant this Court the authority to annul the decision of the Zoning Board of Appeals of the Town of Tyngsborough, in its discretion, to deny the variance.

CONCLUSION

For the foregoing reasons, this Court concludes that the Zoning Board of Appeals of the Town of Tyngsborough acted properly in its decision to deny the variance. The Mambro Property does not meet the frontage requirements of § 2.15.11 of the Town of Tyngsborough Zoning By-Law, and there is no legal right to a variance. Furthermore, there is nothing in the record demonstrating that this decision was arbitrary, capricious, or whimsical or otherwise exceeded the board’s authority. Accordingly, I rule in favor of defendant. The decision of the Zoning Board of Appeals of the Town of Tyngsborough is AFFIRMED.

Judgment to issue accordingly.

Charles W. Trombly, Jr.

Justice

Dated: April 7, 2009