MISC 352437

July 31, 2009


Grossman, J.



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.


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]


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.


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


Dated: July 31, 2009


[Note 1] See Stipulation of Facts (Stip. Facts).

[Note 2] Shown on the Weymouth Town Atlas Sheet 4, Block 30, Lot 14.

[Note 3] See Stipulated Exhibits (Ex.) 1(a)-1(e) (photographs depicting physical proximity of Locus to Plaintiff’s property).

[Note 4] The relief sought, however, was not sufficient for such development, as the record does not disclose any attempt made by the defendant to obtain a variance for the under-sized nature of the Locus. See infra, Findings, para. 9 & 16.

[Note 5] Board members include Richard McLeod, Chairman, 4 Sherrick’s Farm Road; Kemal Denizkurt, 33 Circuit Road; Donald Holzworth, 26 Charles Diersch Street; Francis Kenneally, 11 Erville Lane; Charles Golden, 226 Columbian Street.

[Note 6] See Ex. 5 (plot plan).

[Note 7] Ex. 3(a).

[Note 8] Weymouth Zoning Bylaw (Bylaw) §§ 120-51 & 120-52. See also G. L. c. 40A, § 6, para. 4.

[Note 9] Section 120-40 of the Weymouth Zoning Bylaw (Bylaw) provides as follows:

Any lawful building or structure or use of a building or structure or premises or part thereof at the time this bylaw or any amendment thereto is adopted, may be extended or altered, provided that no such extension or alteration shall be permitted unless there is a finding by the Board of Zoning Appeals that such change, extension or alteration shall not be substantially more detrimental than the existing nonconforming use to the neighborhood, subject to the conditions and requirements of Article XXV of this bylaw.

[Note 10] Section 120-41 of the Bylaw states as follows:

No building or structure which has been damaged by fire or other causes to the extent of more than 3/4 of its value shall be repaired or rebuilt except in conformity with this bylaw, unless the Board of Zoning Appeals finds that the restoration is for the same use and that the building or structure is not substantially greater in area, height or size and not nearer to adjoining lots, subject to the conditions and requirements of Article XXV [special permits] of this bylaw.

See also § 120-42, which provides, inter alia,

[i]f the nonconforming use of any building . . . shall be abandoned or shall be discontinued for a period of twenty-four (24) consecutive months, it shall not be reestablished, and all future use thereof shall be in conformity with the applicable provisions of this bylaw, unless prior to the expiration of the twenty- four (24) months permission to reestablish said use has been applied for and thereafter granted by special permit from the Board of Zoning Appeals.

[Note 11] Ex. 3 (application for special permit / variance).

[Note 12] Ex. 6 (Board meeting minutes).

[Note 13] See Ibid.

[Note 14] Ibid.

[Note 15] Exs. 4-5.

[Note 16] Bylaw § 120-51 requires the greater of either a 10 foot side setback from the property line or a 20 foot setback from an abutting dwelling.

[Note 17] Bylaw § 120-51 requires an 18 foot front yard setback.

[Note 18] Ex. 7.

[Note 19] Ex. 6. The Board’s vote was unanimous in granting the variance request.

The parties, in para. 18, have stipulated as follows:

“The decision of the Zoning Board of Appeals states that the grant of variance was based upon the fact that ‘due to the size, shape, and topography of the property, that there is no other location to site the building with[out] further encroachment upon other set back.’ ”

[Note 20] Stipulated Exhibits 1(b) and (c) (photographs showing fire damage to plaintiff’s abutting residence resulting from the fire at the Locus. The photographs are dated February 23, 2002.)

[Note 21] See also Sweenie v. A. L. Prime Energy Consultants, 451 Mass. 539 , 542 n. 9 (2008) (“aggrievement for purposes of pursuing an appeal under G.L. c. 40A, § 17, is a jurisdictional requirement” [internal quotations omitted]); Tsagronis v. Bd. of Appeals of Wareham, 415 Mass. 329 , 334 (1994) (“[s]tanding as an aggrieved party is jurisdictional and cannot be conferred by stipulation or waiver) (Abrams, J., Dissenting); Barvenik v. Bd. of Aldermen of Newton, 33 Mass. App. Ct. 129 , 131 (1992) (“'[a]ggrieved person' status is a jurisdictional prerequisite” for § 17 review).

[Note 22] Section 11 states, inter alia, “'[p]arties in interest . . . shall mean petitioners, abutters, owners of land directly opposite on any public or private street or way, and abutters to the abutters within three hundred feet of the property line of the petitioner.” G. L. c. 40A, § 11.

[Note 23] See also Watros v. Greater Lynn Mental Health and Retardation Assoc., Inc., 421 Mass. 106 , 111 (1995) (“presumption recedes when defendant challenges a plaintiff's status as an aggrieved person and offers evidence supporting his or her challenge”) (emphasis in original).

[Note 24] Oral arguments, briefs, and unsupported allegations of the sort offered by the defendant, here, will not suffice to overcome the presumption of standing. See Watros., 421 Mass. at 111; Marinelli, 440 Mass. at 258; Valcourt, 48 Mass. App. Ct. at 128. Rather, evidence adduced through discovery may rebut plaintiff’s presumed standing, including depositions and answers to interrogatories. So too, expert affidavits may be utilized to the extent they shed doubt on plaintiff’s bases for asserting aggrievement. See Bell v. Zoning Bd. of Appeals of Gloucester, 429 Mass. 551 , 554 (1999); Standerwick, 447 Mass. at 35; Cohen v. Zoning Bd. of Appeals of Plymouth, 35 Mass. App. Ct. 619 , 622 (1993); Barvenik, 33 Mass. App. Ct. at 131 n.6.

In this way, defendant may rebut plaintiff’s presumption of aggrievement either by providing affirmative evidence that a basis for aggrievement is not well founded, or by showing in the negative, that plaintiff lacks a factual foundation for asserting a claim of aggrievement. See Standerwick, 447 Mass. at 35-36 (“[t]he developer was not required to support his motion for summary judgment with affidavits on each of the plaintiffs' claimed sources of standing; its reliance on the plaintiffs' lack of evidence as to the other claims, obtained through discovery, had equal force”).

[Note 25] Even had the presumption been effectively rebutted by the defendant, it is likely that there is sufficient evidence on the record to support plaintiff’s claims of standing. See Sheppard v. Zoning Bd. of Appeal of Boston, 74 Mass. App. Ct. 8 , 12 (2009) (finding standing where “the variances granted to [the private defendant] allowed him to increase the length of his house so that the deck extended behind [plaintiff’s] house and blocked her rear living room window[,] permitted [him] to build this extension right along the property line he shares with [plaintiff], in violation of multiple zoning requirements[, and a]s a result, [plaintiff’s] house, already subject to overcrowding by the buildings flanking its sides, now has another three-story structure fourteen feet behind it, blocking its last relatively open corridor”).

[Note 26] Warren v. Bd. of Appeals of Amherst, 383 Mass. 1 , 9-10 (1981) (“[t]his court has repeatedly held that no variance can be granted unless all of the requirements of this statute are met”); Josephs v. Bd. of Appeals of Brookline, 362 Mass. 290 , 292 (1972) (“[f]urthermore, we have stated that ‘a decision of the board of appeals granting a variance cannot stand unless the board specifically finds that each statutory requirement has been met’”) (citations omitted).

[Note 27] See Tsagronis, 415 Mass. at 332; McGee v. Bd. of Appeal of Boston, 62 Mass. App. Ct. 930 , 931 (2004); Bertrand v. Bd. of Appeals of Bourne, 58 Mass. App. Ct. 912 , 912 (2003); Shafer v. Zoning Bd. of Appeals of Scituate, 24 Mass. App. Ct. 966 , 966 (1987); McCabe v. Zoning Bd. of Appeals of Arlington, 10 Mass. App. Ct. 934 . (1980).

[Note 28] Ex. 7 p. 8.

[Note 29] As mentioned supra, note 4, the Board, however, did not grant a variance for the minimum lot area requirement of 25,000 square feet, see Weymouth, Mass., Zoning Bylaw § 120-51, as required to construct the proposed home. Stip. Fact 16. While the omission of this variance does not invalidate the two granted set-back variances, Locus remains unbuildable and vulnerable to a zoning enforcement action under G. L. c. 40A, § 7.

[Note 30] Ex. 3(a).

[Note 31] Ibid.

[Note 32] Ex. 6 p. 8; Stip. Fact para. 18.

[Note 33] See Exs. 1(a)-1(e).

[Note 34] Lots deemed buildable before the adoption of the applicable zoning bylaw provision may have been “grandfathered” pursuant to G. L. c. 40A, § 6. That section extends protection for pre-existing non-conforming development that meets established criteria. In this category, a residential lot may enjoy an exemption from heightened area, frontage, and setback requirements provided that the parcel contains at least 5,000 square feet. See G. L. c. 40A, § 6, para. 4.

Pursuant to § 6, a zoning bylaw may “define and regulate nonconforming uses and structures abandoned or not used for a period of two years.” See G. L. c. 40A, § 6, para. 3; Wells v. Zoning Bd. of Appeals of Billerica, 68 Mass. App. Ct. 726 , 737 (2007) (an undersized lot abandoned or left undeveloped for two years or more lost the grandfather and reconstruction protections referenced in G. L. c. 40A, § 6 and as set forth in the Billerica Zoning Bylaw). Weymouth’s Zoning Bylaw provides the grandfather and reconstruction protections as contemplated by G. L. c. 40A,§ 6. Compare Bylaw, § 120-52 (providing grandfather provision); with supra, note 10 (reproducing § 120-41 of the Bylaw, which establishes right to rebuild nonconforming structures within two years and subject to Board’s issuance of special permit). Under the cited provisions, properties of less than 5,000 square feet become unbuildable, if abandoned for more than two years.

Here, the Locus consists of 3,280 square feet. See Stip. Fact para. 6. Its use as a single-family property had been effectively abandoned for over five years at the time Murrin applied for zoning relief. Compare Stip. Fact para. 7 (date of fire, February 20, 2002) with Stip. Fact para. 10 (date of zoning relief application, April 23, 2007). The abandonment or non-use of the property over that period of time, served to terminate the right to build a single family dwelling on the Locus.

[Note 35] Quoting from Pendergast at 557-558, defendant argues that “[t]he Board of Appeals is a local board familiar with local conditions. It can deal understandingly with questions of variance. A judge of a statewide court, perhaps spending only a few days or weeks in a particular locality, is hardly a suitable tribunal for such purposes.’

[Note 36] In Pendergast the local board denied an application for a variance. The reviewing court, in turn, issued a decree ordering that board to grant the variance. See Pendergast, 331 Mass. at 556 (“Both parties and the judge at the hearing seem to have treated this statute as practically substituting the court for the board of appeals and giving the court the same power to grant variance that the board possesses. We do not think that is the meaning of the statute. The vesting in a court of authority to grant to order licenses, permits, or similar privileges of any kind is to say the least unusual. Especially would it be unusual to vest such authority where the granting or refusal of the license, permit, or privilege is in the nature of the exercise of administrative discretion and where the law gives no one a right to such license, permit, or privilege”).

In reversing that decree, the Supreme Judicial Court believed that the lower court should tread with care when overturning the denial of a variance by a “local board familiar with local conditions.” Moreover, the Court concluded, explicitly so, that “the board did not exceed its authority . . .” Id. at 557-560.

[Note 37] See n. 36 supra. Further, the Court observed that there was nothing on the record that would suggest the local board was under “any legal compulsion to grant the variance…. Whether a variance ought to be granted was an administrative question…” Id at 560.

[Note 38] I.e. a burden which it has failed to sustain.