RICHARD MORGAN v. ZONING BOARD OF APPEALS of the TOWN OF WEYMOUTH and JOHN A. MURRIN JR.

Introduction

By virtue of the instant action, brought pursuant to G. L. c. 40A, § 17, plaintiff Richard Morgan (plaintiff / Morgan) seeks the annulment of variances granted by the Zoning Board of Appeals of the Town of Weymouth (Board) to defendant John A. Murrin, Jr. (defendant / Murrin). Specifically, Morgan challenges the adequacy of the grounds upon which the variances were granted; he alleges in this regard, that such grounds fail to meet the requirements of G. L. c. 40A, § 10. The matter was heard as a case stated predicated upon stipulated facts, exhibits, and briefs. On February 23, 2009 the court heard oral arguments and thereupon, took the matter under advisement. For the reasons that follow, this court determines that the decision of the Board must be annulled.

Background

This action concerns variances granted to the defendant for the construction of a single-family home on a lot left vacant by a 2002 house fire. Murrin, as a prospective purchaser of the property in question, sought to obtain zoning relief from the Board on April 23, 2007. After hearings, the Board, on June 20, 2007, granted Murrin the requested variances. Thereafter, Morgan petitioned for judicial review.

The court makes the following findings of fact, adopting the substance of those stipulated by the parties. [Note 1]

1. This is a zoning appeal brought by an individual abutting property owner pursuant to G. L. c. 40A, § 17. The said abutter challenges the grant of two setback variances, one for the side yard setback and the other for the front yard setback, for the residential lot at 28 Squanto Road, [Note 2] Weymouth (Locus).

2. The plaintiff resides at 22 Squanto Road, a parcel directly abutting the Locus. [Note 3]

3. The grant of the two variances was necessary for the defendant “to build a non-conforming (inadequate front and side set-backs) single family dwelling on a vacant nonconforming (undersized) lot.” [Note 4]

4. The Locus is currently owned by Michael H. R. Wille and is under agreement for sale to the defendant John A.Murrin, Jr., the applicant for the variances at issue.

5. The Board [Note 5] is the permit-granting authority for the Town under G. L. c. 40A, “with the authority to grant the challenged zoning relief . . .”

6. The defendant currently resides at 186 Pond Street, Holbrook, Massachusetts.

7. As a consequence of a fire that demolished the then existing residence on February 20, 2002, the Locus now consists of a 3,280 square foot vacant lot in a residential neighborhood zoned R-1. [Note 6]

8. Defendant’s proposed single-family home would not conform to the zoning district’s 10 foot side yard setback and 18 foot front yard setback requirements. [Note 7] According to the Board’s decision, the “[f]ront yard setback is not 18 feet, but the plans show 13.2 feet which is the original setback . . . Side yard setback for Massasoit (paper) Street is 10 feet, but the plan show [sic] 1.4 to 1.5 feet.”

9. Moreover, the 3,280 square foot parcel “is non-conforming for purposes of construction of a single family home in that it does not have the minimum lot size and area required by Section 120-51, Table 1 of 25,000 sq. ft., nor the minimum lot size for a pre-existing recorded lot of 5000 sq. ft. permitted by Section 120-52.” [Note 8] 10. On April 23, 2007, Murrin, as prospective owner of the Locus, applied for zoning relief under the Weymouth Zoning Bylaw, §§ 120-40 [Note 9] and 120-41, [Note 10] for the construction of a single family residence. [Note 11]

11. The Board conducted public hearings on Murrin’s applications, on May 16, 2007, with continuances to June 6, 2007 and then June 20, 2007. [Note 12]

12. The plaintiff appeared at the public hearings and, along with other neighbors, opposed the zoning relief sought by the defendant. [Note 13]

13. The prior owner of the Locus had not applied for a variance or special permit in the years following the fire. [Note 14]

14. Murrin sought relief pursuant to Zoning Bylaw §120-119 [Powers of the Board of Zoning Appeals].

15. He submitted revised plans, which the Board considered in its decision to grant two variances. [Note 15]

16. No variance was sought by Murrin, nor was any granted, for the lack of minimum lot size and area.

17. On June 20, 2007, the Board granted two variances from the side setback [Note 16] and front setback [Note 17] requirements, respectively. A copy of the Board’s decision was duly filed and recorded on July 26, 2007. [Note 18]

18. The Board’s decision recites that a motion was made to approve the request for variance to replace the original dwelling destroyed by fire “[d]ue to the size, shape, and topography of the property, and that there is no other location to site the building without further encroaching upon other setbacks.” [Note 19]

19. The fire of February 20, 2002 damaged plaintiff’s residence on the adjoining lot by, at a minimum, destroying portions of its external siding. [Note 20]

Analysis

1. Standing Under G. L. c. 40A, § 17

Only persons aggrieved by a local zoning board’s decision may seek judicial review of that determination under to G. L. c. 40A, § 17. See Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996) (“[o]nly a 'person aggrieved' may challenge a decision of a board of appeals”). Without such aggrievement, this court lacks subject matter jurisdiction and cannot reach the substantive issues presented in a claim. See Marotta v. Bd. of Appeals of Revere, 336 Mass. 199 , 202-203 (1957) (“[t]he Superior Court had no jurisdiction to consider the case unless an appeal (if not by a municipal officer or board) was taken by an aggrieved person”). [Note 21] As a “part[y] in interest” deserving notice of proceedings under G. L. c. 40A, § 11, [Note 22] the plaintiff enjoys a rebuttable presumption of standing. Marotta, 336 Mass. at 204; Marashlian, 421 Mass. at 721 (“[a]butters entitled to notice of the zoning board of appeals hearing enjoy a rebuttable presumption they are 'persons aggrieved'”). That presumption will stand unless it is rebutted by the defendant. See Krafchuk v. Planning Bd. of Ipswich, 453 Mass. 517 , 522-523 (2009) (“[t]o rebut the presumption, a party challenging the standing of an abutter ‘must offer evidence “warranting a finding contrary to the presumed fact”’”), quoting from Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 33 (2006) (ultimately quoting from Marinelli v. Bd. of Appeals of Stoughton, 440 Mass. 255 , 258 [2003]); Valcourt v. Zoning Bd. of Appeals of Swansea, 48 Mass. App. Ct. 124 , 127-128 (1999) (“[a]butters, as ‘parties in interest’ who receive notice of the public hearing, are presumed to be aggrieved. The presumption is rebuttable, and recedes if standing is challenged and the challenge is supported by evidence”) (citations omitted) (emphasis added). [Note 23]

As a jurisdictional requirement, parties may contest standing at any time. Valcourt, 48 Mass. App. Ct. at 128, citing Marotta, 336 Mass. at 202-203. However, the defendant must offer some evidence to overcome the presumption of standing. Id. [Note 24] Without the presentment of some evidence, “the presumption remains and the abutters are ‘persons aggrieved’ within the meaning of § 17.” Id.

As established above, given his status as an immediate abutter, Morgan plainly enjoys a presumption of standing. Yet the defendant has neither adduced nor presented materials having any evidentiary value, that would adequately rebut plaintiff’s presumptive standing. Consequently, the presumption stands, plaintiff is deemed aggrieved by operation of that presumption, and the court may proceed to the merits underlying Morgan’s claim. [Note 25]

2. The Variances

Pursuant to G. L. c. 40A, § 10, para. 1,

[t]he [local] permit granting authority shall have the power . . . to grant . . . with respect to particular land or structures a variance from the terms of the applicable zoning . . . by-law where such permit granting authority specifically finds that [1] owing to circumstances relating to the soil conditions, shape or topography of such land or structures but not affecting generally the zoning district in which it is located . . . [2] a literal enforcement of the provisions of the . . . by-law would involve substantial hardship, financial or otherwise to the petitioner . . . and [3] that desirable relief may be granted without substantial detriment to the public good and [4] without nullifying or substantially derogating from the intent and purpose of the by-law. (emphasis added)

It should be noted that “these requirements are conjunctive and that variances may properly be granted only where all . . . requirements are met.” Perez v. Bd. of Appeals of Norwood, 54 Mass. App. Ct. 139 , 142 (2002), citing Kirkwood v. Bd. of Appeals of Rockport, 17 Mass. App. Ct. 423 , 428 (1984).

“At the hearing in the [trial c]ourt the burden is upon the person seeking a variance, and the board granting one, to produce evidence that each of the discrete statutory prerequisites has been met and that the variance is justified.” Kirkwood, 17 Mass. App. Ct. at 427. In evaluating the local board’s decision, the court shall consider whether the variance granted meets the statutory criteria, not whether it offers the most desirable option. Gordon v. Zoning Bd. of Appeals of Lee, 22 Mass. App. Ct. 343 , 349 (1986). [Note 26] Further, as “[n]o person has a legal right to a variance[,]they are to be granted sparingly.” Damaskos v. Bd. of Appeal of Boston, 359 Mass. 55 , 61 (1971). See also Mendoza v. Licensing Bd. of Fall River, 444 Mass. 188 , 206 (2005) (commenting “[w]ithin the stringent statutory requirements of the Zoning Enabling Act, variances are not allowed as a matter of right, and should be ‘sparingly granted’”), quoting from Barron Chevrolet, Inc. v. Danvers, 419 Mass. 404 , 408 (1995) (ultimately quoting from Mendes v. Board of Appeals of Barnstable, 28 Mass. App. Ct. 527 , 531 ]1990]).

Specifically, the Appeals Court has held that certain situations generally remain beyond the scope of variances. For example, “variances are not normally available to remedy deficiencies in frontage and area,” DiCicco v. Berwick, 27 Mass. App. Ct. 312314 (1989), and, consequently, the undersized nature of a particular lot is no basis for a variance. McGee v. Board of Appeal of Boston, 62 Mass. App. Ct. 930 , 931 (2004). Accordingly, simply because of its modest size, a lot does not possess the “peculiar shape, topography, or soil conditions” contemplated by G. L. c. 40A, § 10. [Note 27]

The variances granted to the defendant do not meet the basic requirements of G. L. c. 40A, § 10. “Due to the size, shape and topography of the property and that there is no other location to site the building without further encroaching on other setbacks,” [Note 28] the Board granted defendant relief from two setback requirements in order to “replace the dwelling destroyed by fire . . .” [Note 29] The Board failed, however, to render, or even to adequately address, the findings required under §10. See Wendy’s Old Fashioned Hamburgers of New York, Inc. v. Board of Appeal of Billerica, 2009 WL 2184580, *6 (July 24, 2009 Mass.) (opining “[w]hen a decision contains conclusions that do nothing more than repeat regulatory phrases, and are unsupported by any facts in the record, [the reviewing court] is constrained to conclude that the decision is ‘unreasonable, whimsical, capricious or arbitrary’”), quoting from Roberts v. Southwestern Bell Mobile Sys., 429 Mass. 478 , 486 (1999) (ultimately quoting from MacGibbon v. Board of Appeals v. Duxbury, 356 Mass. 635 , 639 [1970]).

The Locus, covering 3,280 square feet, is a rectangular-shaped parcel, 76.50 feet deep, and between 40.00 and 45.49 feet wide. [Note 30] The proposed home is 31 feet in width. [Note 31] No site exists on the Locus that would accommodate such a dwelling without encroaching into the 10 foot side setback. [Note 32] That defect, however, may not be cured by means of a variance, as rectangular and trapezoidal lots are not deemed irregular shapes within the meaning of § 10. See McGee, 62 Mass. App. Ct. at 931 (ruling trapezoidal shape of lot “was irrelevant to the variances . . . sought” and an “undersized lot is not a basis for a variance . . . Furthermore, an inability to maximize the theoretical potential of a parcel of land is not a hardship within the meaning of the zoning law.”). See also McCabe, 10 Mass. App. Ct. at 934 (holding an undersized, rectangular lot did not have a “peculiar shape”).

Moreover, the photographs to which the parties stipulated in presenting this matter on a case-stated basis, disclose that the Locus is relatively flat. [Note 33] Beyond that, there is nothing in the record that would permit one to conclude that there exists a substantial hardship owing to any topographical feature. Finally, defendant makes no allegation that the soil composition of the Locus necessitates the variances granted in this case. As previously observed, it is he and the Board who bear the burden of proving the requisite elements for the issuance of the variances in question. See Kirkwood, supra.

Thus, no hardship of the sort contemplated by § 10 has been shown. To the extent that it may be said that some hardship does exist, it would be attributable solely to the owner’s failure to rebuild on the undersized lot within the mandated time period. [Note 34]

Lastly, defendant argues, unpersuasively so, that this court should assume an extremely deferential posture when reviewing the Board’s decision. To this end, he cites Pendergast v. Bd. of Appeals of Barnstable, 331 Mass. 555 (1954). [Note 35] However, that reliance is unavailing, because Pendergast is wholly inapposite. [Note 36]

In critical respects, the scenario in Pendergast differs markedly from that presented in the case at bar. The Court’s decision must be read therefore, in the appropriate context. There, the local board had denied the application for a variance, while the reviewing trial court reversed the board and ordered that the variance be granted. The decision of the trial court was itself reversed. [Note 37] Here, this court is asked to review the Board’s grant of certain variances. This is the type of case in which the Board, rather than the appealing party, bears the primary burden under § 10. [Note 38] See Kirkwood, supra. Moreover, central to the resolution in Pendergast was the construction of G. L. c. 40, § 30, a statute repealed by St. 1954, c. 368, § 1, and which differs to a significant degree from G. L. c. 40A, § 10, the operative statute herein.

Conclusion

This court concludes that the Board issued legally-deficient variances as they were granted without having considered, in appropriate fashion, the discrete requirements of G. L. c. 40A, § 10. Finally, the instant record lacks evidence that could support the statutorily-mandated findings, i.e. findings that were conspicuously absent from the Board’s decision. See Wendy’s, supra, at *6 (holding a reviewing court is “not obliged to search for facts in the record to support a rationale that the board did not itself provide [and] where no reasons [for a decision] are given, as here, a reviewing court cannot be satisfied that a board’s actions are not arbitrary, a pretext, or otherwise impermissible”).

Consequently, the decision below must be annulled because a) the Board failed to make the requisite findings under G. L. c. 40A, § 10, and b) the record is devoid of any evidence that could support such findings, had they been made.

For the foregoing reasons, this court concludes that the Board acted beyond its authority in granting the two variances at issue. As a consequence, the decision of the Zoning Board of Appeals of the Town of Weymouth, is hereby ANNULLED.

Judgment to Issue Accordingly

Harry M. Grossman

Justice

Dated: July 31, 2009