Plaintiffs, David A. Hahesy and Joan T. Hahesy, commenced this case on July 20, 2007, as an appeal, pursuant to G.L. c. 40A, § 17, of a decision of the Defendant the City of Revere Zoning Board of Appeals to grant a variance concerning a parcel of real property, known as and numbered, in part, 320-332 Revere Beach Boulevard in Revere, owned of record by Defendant, CC. Real Investments, Inc. [Note 1]
On June 16, 2009, Plaintiffs filed a Motion for Summary Judgment. The motion was before the court on September 17, 2009. This is the matter presently before the court. At the time of the hearing, none of the Defendants or their representatives appeared. Counsel for the Plaintiffs represented to the court that the Defendants had decided not to oppose the motion.
After reviewing the record before the Court, I find that the following facts are not in dispute:
1. Defendant C.C. Real Investments, Inc. (Developer) is the owner of a parcel of real property, known as and numbered, in part, 320-332 Revere Beach Boulevard in Revere (Property).
2. The Property is the result of some assembly of various abutting lots by Developer at some financial expense.
3. The Property lies in the RC-1 zoning district of the Revere Zoning By-Laws.
4. The Property currently contains two commercial structures and three residential structures.
5. Developer proposes to build a thirteen story, 172 unit residential condominium on the Property.
6. On or about June 1, 2007, Developer applied for a variance from the minimum side setback, the minimum rear setback, the maximum floor-to-area ratio, and the maximum height requirements of the applicable provision of the by-law.
7. On June 27, 2007, following a duly notice public hearing, the City of Revere Board of Appeals voted to grant the variance. A decision was filed with the City Clerk of Revere on July 3, 2007.
8. The decision states that the board finds, in relevant part, as follows:
18. The site that has been assembled for the proposed development removes the aforementioned existing structures and uses, in order to enhance the entire vicinity of the proposed structure at great additional expense and hardship to the development team.
19. The assemblage of this site (the present locus) creates an opportunity for great visual and functional improvement to the City of Revere but has a cost burden to the overall development which must be recognized.
9. The decision states that the board concludes, in relevant part, as follows:
B. A literal enforcement of applicable zoning provisions shall involve substantial hardship to the Petitioner and resultant detriment to the City. As aforementioned, the locus is unique vis-à-vis its abutting land and the aforementioned existing ways.
Only by implementing the Petitioners development objectives including the assemblage of all the parcels which now constitute the locus is it possible to resolve the so-called way issues as reflected in M.P.M. Builders vs. Dwyer, supra.
Accordingly, resolution of the unique impediments that exist vis-à-vis the locus can only be accomplished by a total assemblage of properties with the resulting economic consideration of the same requiring a development proposal consistent with that of your Petitioner.
The existing impediments as described herein constitute a hardship which would prohibit development consistent with applicable zoning requirements.
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Summary judgment is granted where there are no issues of material fact and when the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56(c); Cassesso v. Commr of Corr., 390 Mass. 419 , 422 (1983); Cmty. Natl Bank v. Dawes, 369 Mass. 550 , 553 (1976). The moving party bears the burden of demonstrating affirmatively the absence of a triable issue, and its entitlement to judgment as a matter of law. Pederson v. Time, Inc., 404 Mass. 14 , 16-17 (1989). In viewing the record before it, the Court reviews the evidence in the light most favorable to the nonmoving party. Donaldson v. Farrakhan, 436 Mass. 94 , 96 (2002). In the instant matter, there are no genuine issues of material fact, within the meaning of Mass. R. Civ. P. 56(c), and, therefore, this case is proper for summary judgment.
Plaintiffs argue that the Board of Appeals did not make a sufficient finding regarding substantial hardship to the Developer if the by-law is enforced, and therefore, the decision should be annulled. 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. 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).
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. Thus, the permit granting authority must find that (1) the property contains a unique soil condition, shape, or topography not affecting the district generally, (2) a substantial hardship owning to the unique soil condition, shape, or topography of the land will result, if the by-law is enforced, (3) the variance may be granted without substantial detriment to the public good, and (4) the variance may be granted without nullifying or substantially derogating from the purpose and intent of the by-law. Warren v. Zoning Bd. of Appeals of Amherst, 383 Mass. 1 , 9 (1981).
The hardship must arise out of the unique condition of the property and prohibit[] development consistent with the ordinance. Guiragossian v. Bd. of Appeals of Watertown, 21 Mass. App. Ct. 111 , 118 (1985). Personal financial hardship because of prior expenditures is not sufficient to constitute hardship. See, e.g., Planning Bd. of Barnstable v. Bd. of Appeals of Barnstable, 358 Mass. 824 (1971); Bruzzese v. Bd. of Appeals of Hingham, 343 Mass. 421 , 423-24 (1962); Kirkwood v. Bd. of Appeals of Rockport, 17 Mass. App. Ct. 423 (1984); Raia v. Bd. of Appeals of North Reading, 4 Mass. App. Ct. 318 (1976).
A municipal authority may not grant a variance unless all the statutory factors have been considered and 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). Furthermore, this consideration must be memorialized in sufficient findings in the record. G.L. c. 40A, § 9; Brackett v. Bd. of Appeal of the Bldg. Dept of Boston, 311 Mass. 52 , 54 (1942); Shoppers World v. Beacon Terrace Realty, 353 Mass. 63 , 67 (1967) (citing Prusik v. Bd. of Appeal of Bldg. Dept. of Boston, 262 Mass. 451 , 457-58 (1928)); see Wolfson v. Sun Oil Co., 357 Mass. 87 , 89 (1970) (citing Brackett v. Bd. of Appeal of Boston, 311 Mass. 52 , 54 (1942).
In the present case, the board cursorily concludes that the soil conditions of the Property are unique due to the water table on and ocean front of the lot. However, the board does not appear to find any hardship arising out of these conditions.
The board concludes also that the shape and topography of the Property are unique due to a number of ways encumbering the land and because the depth of the Property is less than the depth of similar properties in the zoning district. The board again does not appear to find any hardship arising out of the alleged unique depth of the Property. The board does conclude that a substantial hardship arises out of the encumbrances. Implicitly, the board finds that the encumbrances render the lot difficult to develop in a manner consistent with requirements of the RC-1 zoning district. The board concludes, therefore, that only by zoning relief from the enforcement of the by-law is it possible to overcome this hardship. I disagree with the premise, however. The encumbrance of property does not constitute unique conditions, which would qualify the property for a variance. Were that the law, any property could be made to qualify for a variance by burdening it with easements.
Moreover, it is clear that the so-called ways which, in some undisclosed manner, encumber the Property do not do so as to render the property not developable. The board acknowledges in its decision that two commercial structures and three residential structures currently stand on the Property. Therefore, the Property and buildings stand as a contradiction to the boards statement that the Property may only be developed in the manner proposed by the Developer. The hardship recognized by the board as arising out of the encumbrances is not a hardship recognized by G.L. c. 40A, § 10 as qualifying property for a variance.
Lastly, the board finds that the developer incurs a hardship in the expense of assembling the lots for the proposed project. It is well-settled law that personal financial hardship, especial that resulting from prior expenditures is not sufficient to constitute hardship. Accordingly, I rule that the board did not make sufficient findings for the grant of a variance concerning the Property.
Conclusion
For the foregoing reasons, this court concludes that the decision of the City of Revere Zoning Board of Appeals does not contain sufficient findings for the grant of a variance. The board does not make a finding of substantial hardship arising out of circumstances relating to soil conditions, shape, or topography of the Property. Accordingly, the Plaintiffs Motion for Summary Judgment is hereby ALLOWED.
Judgment to issue accordingly.
Charles W. Trombly, Jr.
Justice
Dated: October 2, 2009
DAVID A. HAHESY and JOAN T. LANZILLO-HAHESY v. C.C. REAL INVESTMENTS, INC.; ALFRED BUCCILLI, JOHN CAMMARATA, HARVEY CORIN, ROBERT MARRA, and MICHAEL G. TUCKER, as members of the CITY OF REVERE ZONING BOARD OF APPEALS, and the CITY OF REVERE ZONING BOARD OF APPEALS