MISC 07-351437

December 30, 2009


Piper, J.



These consolidated cases are appeals, pursuant to G. L. c. 40A, §17, from decisions of the Zoning Board of Appeals (“Board”) of the Town of Stoneham (“Town”), whose members are defendants, in which the Board denied the application of plaintiff Angelo Petrosino, Trustee of Stevens Street Realty Trust (“Plaintiff”) for variances on two properties, 34 Stevens Street, and 36 Stevens Street, Stoneham, Middlesex County, Massachusetts (collectively “Locus”). The Board denied the requested variances as to both lots in decisions dated June 29, 2007 and filed with the Town Clerk on July 5, 2007 (“2007 Decisions”).

On May 18, 2006, the Temporary Building Inspector for the Town of Stoneham sent letters to Plaintiff, stating that the building inspector’s office had received a complaint that illegal two-family dwellings existed on Locus. Plaintiff stated his desire to maintain two-family dwellings on the Locus, and requested the inspector’s office issue letters of denial in connection with that use. On January 9, 2007, the Building Inspector issued denial letters for 34 and 36 Stevens Street. Plaintiff appealed the Building Inspector’s denial to the Zoning Board of Appeals (“Board”), and requested variances to allow the two family uses.

Plaintiff requested a variance pursuant to Section 4.2.3 of the Town’s zoning bylaw, which reads in part:

4.2.3 Uses Permitted with Variances Granted by the Board of Appeals: Conversion of an existing dwelling to accommodate more than one (1) dwelling unit, provided that:

(a) The building was in existence at the time of adoption of this Section.

(b) In addition to the requirements of Section 5.0, there shall be a lot area equivalent to the minimum lot area required within the District for each dwelling unit.

The minimum lot area required for the Residence A District is 10,000 square feet. The Board held a public hearing on Plaintiff’s applications for variances on April 26, 2007, and issued the 2007 Decisions, dated June 29, 2007 in which they denied the applications, stating “[i]n their deliberations, the Board voted 5-0- to deny the petitioner the variances, as no hardship existed.” The 2007 Decisions were filed with the Town Clerk on July 5, 2007, and on July 20, 2007 Plaintiff filed his appeals in this court.

The municipal defendants filed motions to dismiss on August 6, 2008. The court (Piper, J.) held argument on the municipal motions to dismiss on October 23, 2008. The defendants argued that Plaintiff failed to state a claim because even if the statutory requirements for a variance had been satisfied, for a two-family dwelling use to be authorized pursuant to Section, the Board was in all instances required to find that the minimum square footage requirements of that section had been met, something which, given the lack of sufficient area on both lots, was a geometric impossibility. The defendants therefore contended that the Board was prohibited from granting a variance under this section, by the very terms of the bylaw, if, as is the case here, Plaintiff did not have adequate square footage, according to the provisions of Section (b) quoted above. The defendants took the position that the dimensional minima of that bylaw section could not themselves be varied by the Board, even upon an appropriate showing of satisfaction of the statutory variance requirements. After hearing, the court denied the motion to dismiss, ruling that the Board was not, as a matter of law, precluded from considering a request for a dimensional variance from the lot size requirements of Section when considering a use variance under Section 4.2.3 so as to allow a two-family use in the Residence A District. The court further ruled that the 2007 Decisions were based on a legally untenable ground, because the Board had concluded it was prevented as a matter of law from reaching the merits of the use variance application, given the lack of sufficient area on the Locus. The court then gave the parties the opportunity to submit a joint request for remand back to the Board, so that it might consider the use variance applications with knowledge that the Board was not, as matter of law, prevented from also considering a request to vary the minimum lot area provision of Section

On March 4, 2009, counsel submitted a joint motion for remand, and on March 20, 2009, the court issued an Order of Remand, see Petrosino v. Zoning Bd. of Appeals of Stoneham, Land Court Misc. Cases Nos. 351437 & 351439 (March 20, 2009)(Piper, J.). Pursuant to the Order of Remand, the Board held a new public hearing on May 21, 2009 and voted four to one to deny the requested variances, and in a decision dated June 4, 2009 and filed with the Town Clerk on June 5, 2009 (“Decision on Remand”), the Board set forth reasons for their denial. Plaintiff’s motion to amend the consolidated complaints to encompass the Decision on Remand was allowed on June 25, 2009.

On September 15, 2009, the Town’s motions for summary judgment came on for hearing. After argument, plaintiff’s counsel requested leave to supplement the summary judgment record by filing a transcript of the May 21, 2009 hearing of the Board, and by filing evidence on the real estate valuation; the Town made no objection. The court received Plaintiff’s supplements to the record on October 15, 2009, and, having reviewed the supplemental submissions, I now decide the motions.

* * * * *

The following facts are supported by the record and appear without material dispute:

1. Plaintiff is the owner of real property located at 34 and 36 Stevens Street, Stoneham, Middlesex County, Massachusetts (“Locus”). Each lot is improved by a residential structure, and has been in use for residential purposes.

2. The lot known as 34 Stevens Street has a lot area of 10,055 square feet and ninety feet of frontage on Stevens Street. The lot known as 36 Stevens Street has a lot area of 10,055 square feet and ninety feet of frontage on Stevens Street.

3. The Locus is within Stoneham’s Residence A Zoning District.

4. Abutting 36 Stevens Street to the southeast is land owned by the Town of Stoneham, which has for some time been used as some kind of a dumping ground, town dump, or transfer station.

5. The Plaintiff engaged Hydroterra Environmental Services to perform environmental sampling and a site assessment of the locus. In a report dated April 28, 2009, Hydroterra indicated “[t]otal Petroleum Hydrocarbons, (TPHs) were detected in groundwater . . . at concentration of 1.08 ug/L. This is slightly above the Massachusetts Contingency Plan” standards. The specific contaminant noted was “no. 2 fuel oil,” also known as diesel, or home heating oil.

6. The Plaintiff entered into a listing agreement with real estate broker Robert Cuozzo on August 1, 2006. During Mr. Cuozzo’s listing, which lasted from August 1, 2006 to November 8, 2006, “there was no interest in the properties” because of the “problems related to the oil in the soil.”

* * * * *

“Summary judgment is granted where there are no issues of genuine material fact, and the moving party is entitled to judgment as a matter of law.” Ng Bros. Constr. v. Cranney, 436 Mass. 638 , 643-644 (2002); Mass. R. Civ. P. 56 (c). “The moving party bears the burden of affirmatively showing that there is no triable issue of fact.” Ng Bros., 436 Mass. at 644. In determining whether genuine issues of fact exist, the court must draw all inferences from the underlying facts in the light most favorable to the party opposing the motion. See Attorney General v. Bailey, 386 Mass. 367 , 371, cert. den. sub nom. Bailey v. Bellotti, 459 U.S. 970 (1982). Whether a fact is material or not is determined by the substantive law, and “an adverse party may not manufacture disputes by conclusory factual assertions.” See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Ng Bros., 436 Mass. at 648.

Section 10 of G. L. c. 40A provides that a local board of appeals may grant a variance when it “specifically finds [a] that owing to circumstances relating to the soil conditions, shape, or topography of such land . . . and especially affecting such land . . . but not affecting generally the zoning district in which it is located, [b] a literal enforcement of the provisions of the ordinance or by_law would involve substantial hardship, financial or otherwise, to the petitioner or appellant, . . . [c] that desirable relief may be granted without substantial detriment to the public good and [d] without nullifying or substantially derogating from the intent or purpose of such ordinance or by_law.” Warren v. Board of Appeals of Amherst, 383 Mass. 1 , 9 (1981). “No person has a legal right to a variance and they are to be granted sparingly.” Damaskos v. Board of Appeal of Boston, 359 Mass. 55 , 61 (1971). Even when an applicant meets the statutory criteria that would enable a zoning board, in its discretion, to grant a variance, “it is not required to do so, because no one has a legal right to a variance.” Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555 , 557-59 (1954). While “[t]he burden rests upon the person seeking a variance . . .” to show that the “statutory prerequisites have been met and that the variance is justified,” see Dion v. Board of Appeals of Waltham, 344 Mass. 547 , 555-56 (1962), a court conducts review of a decision of a local zoning board de novo, giving no weight to the facts the board found. Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 72 (2003). The zoning board’s decision, however, “cannot be disturbed unless it is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary.” Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349 , 355 (2001) (and cases cited).

I now decide the pending motions. After review of the summary judgment record, including all of the facts properly before me pursuant to Mass. R. Civ. P. 56(c), and upon consideration of the arguments presented at the hearing, I decide that the uncontested facts and the governing law call for allowance of the Board’s motions for summary judgment in these two consolidated appeals.

In light of the court’s October 23, 2009 ruling on the Town’s Motion to Dismiss, the Town of Stoneham bylaw is read to require two variances for each lot before it could be used for a multi-family dwelling: a use variance to maintain a two-family dwelling in the Residence A district (Section, and a dimensional variance to allow that section to be invoked to authorize a two-family structure on a lot that has less than 10,000 square feet per dwelling unit (Section Plaintiff argues he is entitled to a variance because the presence of number 2 fuel oil on his property is a “circumstance relating to the soil conditions” that is causing a “substantial hardship” in the form of depressed real estate value. The hardship can be remedied, according to the Plaintiff, by the increased rental income that would flow from use of a two-family structure instead of the single-family structure allowed as of right by the zoning bylaw.

As the Town correctly argues, to support a variance based on “soil conditions,” G. L. c. 40A, § 10 there must exist some meaningful nexus between the “soil conditions” creating the hardship, and the relief that a variance would provide. Here, the soil conditions are not the reason Plaintiff requires a variance from the requirement of 10,000 square feet per dwelling unit. The Plaintiff requires a variance because his lot is too small. Thus, my decision in the case at bar is controlled by cases like Mitchell v. Board of Appeals of Revere, 27 Mass. App. Ct. 1119 (1989), further app. review denied, 405 Mass. 1203 (1989). In Mitchell, the Appeals Court reversed a decision of the Superior Court that upheld the grant of a variance. The applicant in Mitchell had a 2,556 square foot lot with a slope in the elevation from front to back, and requested a variance from the Revere ordinance that required a minimum of 3,000 square feet for a building lot. The Appeals Court held:

The hardship in this case is not “owing to the topography”of the land. The slope does not prevent the erection of a house. Rather, the hardship arises solely from the fact that the lot is too small to qualify as a buildable lot under the zoning ordinance . . . . In these circumstances § 10 gives the board of appeal no authority to grant a variance.

Mitchell, 27 Mass. App. Ct. at 1120.

Here, the Plaintiff is seeking at least a variance from a provision of the zoning bylaw requiring--as a predicate to obtaining permission to exceed the otherwise applicable single-family use limitation in the district-- a minimum of 10,000 square feet per dwelling unit. Plaintiff’s motivation for seeking the variance is pecuniary, driven by a desire to extract more income out of the property. While Plaintiff’s impetus to generate that extra revenue may, in some indirect, unquantified way, turn out to have some relation to the “soil conditions” on his property, it is not the soil conditions that are preventing the Plaintiff from having multi-family dwellings: it is the small size of the Plaintiff’s lots. The Decision on Remand of the Board therefore must be upheld because, as a matter of law, and giving Plaintiff every reasonable inference, he still has not shown that his claimed financial hardship is “owing to circumstances relating to the soil conditions.” And other than that, Plaintiff has come forward with no evidence supportive of any sort of hardship.

Whether the Plaintiff’s lots are in fact contaminated with number 2 fuel oil, whether that contamination is the result of some action attributable to the Town of Stoneham, or whether as a result of any such contamination Plaintiff’s land is worth less than it otherwise would be--these all are facts not material to my decision, and do not constitute facts in dispute. If this case were to proceed to trial, and if the Plaintiff were to be able to prove successfully (1) that his property is contaminated, (2) that the Town of Stoneham is responsible for the contamination, and (3) that as a result of the contamination, the properties can only be rented at reduced rates, all of that together would not entitle the Plaintiff to a variance. It certainly would not require the court to order the Board to reverse itself and grant a variance.

Indeed, Plaintiff really cannot make his case for a variance given the undisputed fact that he has, for some time, owned the Locus with each lot improved with a residential structure. His land lends itself to (indeed is improved and available for) use for the lawful, as of right use in this district--single family residential use. Even without the variances he seeks in this litigation, plaintiff is able to make a fully adequate use of his land as it now is improved, simply by obeying the bylaw. Nothing in the record even supports a reasonable inference that use of the Plaintiff’s lots for their lawful single family use would constitute an economic hardship of the sort required to justify the grant of a variance. Plaintiff would have the burden at trial of proving hardship based on his being held to the legal use in the district, and the record gives him no basis for meeting that burden.

Plaintiff also argues that summary judgment would be premature because the Plaintiff has filed an amended complaint alleging that the manner in which the Board conducted its May 21, 2009 hearing on remand violated his due process rights. If there were any facts that the Plaintiff was unable to offer to the Board at the hearing based on the way in which it was conducted, the Plaintiff had the chance to offer those facts to me, because when considering zoning appeals, the court finds the facts de novo. Plaintiff was unable to bring forth any factual allegation that, even with the benefit of every inference, would persuade me that the legal basis for entitlement to a variance has been established. The best he has come up with is insufficient, as matter of law, to justify the variances he seeks. So, even assuming arguendo that the Board conducted its hearing in a manner that was unfair – even egregiously unfair – the Plaintiff has not shown that the resulting decision of the Board was in any way legally deficient, because there has been no demonstration of what points Plaintiff allegedly was kept from making to the Board which would have altered the outcome of the hearing there. In addition, Plaintiff was allowed to submit into the summary judgment record a transcript of the Board’s May 21, 2009 hearing. A review of the transcript reveals nothing suggesting that the Board failed to honor Plaintiff’s right to a fair hearing.

Summary judgment is granted to the defendants.

Judgment accordingly.

Gordon H. Piper


Dated: December 30, 2009.