Plaintiff filed its unverified Complaint on January 2, 2008, pursuant to G. L. c. 40A, § 17, appealing a decision of Defendants which denied a request for a variance (Variance 2) on property located at 13 Drake Circle, Sharon, Massachusetts (Locus). [Note 1] Defendants filed their Answer on January 28, 2008. This court issued an Order of Remand on February 26, 2008. Following another denial by Defendants of Plaintiffs request for a variance (Variance 3), Plaintiff filed a Motion to Add Denial of Sharon Zoning Board of Appeals Decision Following Remand on September 15, 2008. Defendants filed their Motion for Summary Judgment on February 27, 2009, together with supporting memorandum and Appendix. On March 30, 2009, Plaintiff filed its Opposition, together with supporting memorandum. A summary judgment hearing was held on June 1, 2009, at which time the motion was taken under advisement.
Summary judgment is appropriate where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. See Cassesso v. Commr of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c).
This court finds that the following facts are not in dispute:
1. Plaintiff purchased Locus by deed dated September 30, 1992, and recorded with the Norfolk County Registry of Deeds (the Registry) in Book 9535, Page 128. [Note 2] Locus contains 44,174 square feet and is located in Rural 1 Zoning District in the Town. [Note 3] Locus is part of a 1982 subdivision known as Knob Hill Estates (the Subdivision).
2. Pursuant to the Towns By-Laws (the By-Laws), the Rural 1 Zoning District requires a minimum 60,000 square foot lot size.
3. In 1992, Plaintiff applied for a special permit (relative to wetlands setbacks) and a variance (relative to minimum lot area and minimum lot width) for Locus as part of the proposed construction of a single-family dwelling. By decision dated May 18, 1992, Defendants denied both the special permit and the variance (Variance 1), finding that the requirements for a special permit and a variance have not been have [sic] satisfied.
4. On October 2, 2007, Plaintiff filed an application for a minimum lot area variance. Defendants held a hearing on November 14, 2007, and by decision dated December 12, 2007, Defendants denied the variance (Variance 2), finding that the Applicant has not submitted any evidence that would substantiate the criteria to grant a variance based on topography, shape of land and soil conditions especially affecting such land or structures.
5. By Order of Remand dated February 26, 2008, this court remanded the matter to Defendants. Defendants held hearings on the matter between April and July 2008. By decision dated July 23, 2008, Defendants denied the variance (Variance 3), finding that the Applicant has not submitted any evidence that would substantiate the criteria to grant a variance based on topography, shape of land and soil conditions especially affecting such land or structures.
Plaintiff argues that denials of Variance 2 and Variance 3 by Defendants was arbitrary, capricious and unreasonable and beyond the scope of their authority. Plaintiff also claims that the denials were a taking by the Town. Defendants argue that the denials were a valid exercise of their authority and that there was no taking. I shall address each of these issues in turn.
G. L. c. 40A, § 10 states in part as follows:
The permit granting authority shall have the power . . . to grant . . . a variance from the terms of the applicable zoning ordinance or by-law where such permit granting authority specifically finds that 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.
Article VI, Section 6222 (Variances.) of the By-laws confers upon Defendants the power
a. A literal enforcement of the [By-law] would involve a substantial hardship, financial or otherwise, to the petitioner or appellant.
b. The hardship is owning 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.
c. Desirable relief may be granted without:
(1) substantial detriment to the public good; and
(2) without nullifying or substantially derogating from the intent or purpose of this By-law.
The Supreme Judicial Court has repeatedly held that no variance can be granted unless all of the requirements of [G. L. c. 40A, § 10] are met. Warren v. Zoning Bd. of Appeals of Amherst, 383 Mass. 1 , 9-10 (1981) (citations omitted). Therefore, in order for Defendants to act within the scope of their authority in granting a variance they must find (1) soil conditions, shape, or topography of the land not affecting the zoning district generally, (2) a substantial hardship related to the unique soil condition, shape, or topography if the by-law is enforced, (3) no substantial detriment to the public good if the variance is granted, and (4) no nullification or substantial derogation from the intent of the by-law if the variance is granted. Id.; Tsagronis v. Bd. of Appeals of Wareham, 415 Mass. 329 , 331-32 (1993). On appeal to the [Land Court], the judge is required to hear the matter de novo and determine the legal validity of the decision of the board upon the facts found by him. Josephs v. Board of Appeals of Brookline, 362 Mass. 290 , 295 (1972). [T]he burden rests upon the person seeking a variance and the board ordering a variance to produce evidence at the hearing in the [Land Court] that the statutory prerequisites have been met and that the variance is justified. Dion v. Board of Appeals of Waltham, 344 Mass. 547 , 555-56 (1962).
Plaintiff applied for Variance 2 and Variance 3 under the By-Laws and under the state statute. Plaintiff, however, has not presented any evidence to support its position that the requested relief was related to the shape, soil conditions or topography of Locus. Plaintiff acknowledges that Locus is an undersized lot, but argues that Defendants were arbitrary because they authorized a variance for a similar lot in the Subdivision. Although Plaintiff filed a copy of the decision of Defendants relative to such other lot, there are no facts before this court relative to such matter. Moreover, the status of a decision of Defendants in one case is not binding on the case at bar. [Note 4] This is a trial de novo and each case is decided on its own merits. In the case at bar, Plaintiff does not dispute the fact that Locus is undersized and the size of the lot is not one of the criteria for allowing a variance. [Note 5] As a result, I find that Plaintiff has not sustained its burden of showing a basis for either Variance 2 or Variance 3. I also find that Defendants decision to deny Variance 2 and Variance 3 was not arbitrary, capricious or unreasonable and was not beyond the scope of their authority.
Plaintiff also argues that the denials of Variance 2 and Variance 3 resulted in a regulatory taking by the Town, and that such denials deprive Plaintiff of any beneficial use of Locus. Moreover, Plaintiff also claims that this inquiry is inappropriate for summary judgement as it involves a mixture of law and fact. Defendants maintain that Plaintiff has failed to properly assert that it has been deprived of all beneficial use of Locus.
In challenging the denials of the variances as a taking, Plaintiff is burdened with providing facts to support its position. See MacNeil v. Avon, 386 Mass. 339 , 341 (1982). Identifying a regulatory taking is a fact-intensive inquiry, and one that does not have a given set formula. Giovanella v. Conservation Commn of Ashland, 447 Mass. 720 , 725 (2006), cert. denied, 127 S. Ct. 1826 (2007). However, in general, the following three (so-called Penn Central) factors serve as guideposts in a regulatory takings claim: the extent to which the regulation interferes with the owners distinct investment-backed expectations; the economic impact of the regulation; and the character of the government action. Id. (citing Penn Cent. Transp. Co. v. City of N.Y., 438 U.S. 104, 123-24 (1978)). A limited exception to the Penn Central test occurs in the extraordinary circumstance when no productive or economically beneficial use of land is permitted. Id. (citing Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1017 (1992). Accordingly, a per se taking may occur if an owner loses all economically beneficial use of a parcel of land. Id. (citing Lucas, 505 U.S. at 1019). [Note 6]
As previously stated, Plaintiff filed its Complaint pursuant to G. L. c. 40A, § 17. Plaintiffs Complaint included two counts: the first asserting that Defendants denial of Variance 2 and Variance 3 exceeded Defendants authority, and the second asserting that such denials constituted an unconstitutional taking. Plaintiffs single substantive prayer for relief requested that this court annul Defendants denials of Variance 2 and Variance 3. [Note 7] However, the Complaint did not assert causes of action grounded in either G. L. c. 240, § 14A (which would provide for a determination as to the validity of the By-laws, either facially or as applied to Locus) or G. L. c. 231A (providing for a declaratory judgment). [Note 8]
In light of the above, while G. L. c. 40A, § 17 provides this court with the authority to determine the validity of Defendants denial of Variance 2 and Variance 3, Plaintiffs Complaint fails to confer upon this court jurisdiction to review the merits of its regulatory takings claim. [Note 9]
As a result of the foregoing, I ALLOW Defendants Motion for Summary Judgment.
Judgment to enter accordingly.
The parties to the related Tax Lien Case (Town of Sharon v. Jodi B. Matt, Trustee of Drake Realty Trust, 06 TL 132867) shall attend a status conference on Friday, April 2, 2010, at 10:30 A.M. with respect to the status of that case.
Alexander H. Sands, III
Justice Dated: March 2, 2010
[Note 1] A related case, Town of Sharon v. Jodi B. Matt, Trustee of Drake Realty Trust, 06 TL 132867, was filed on January 25, 2006, relative to a taking of Locus for nonpayment of real estate taxes. This tax lien case was put on hold pending the resolution of Plaintiffs appeal of Variance 2 and Variance 3.
[Note 2] Plaintiff has paid no real estate taxes on Locus since it purchased Locus in 1992. The Town of Sharon (the Town) made a taking of Locus on March 11, 1994 for unpaid 1993 real estate taxes, which was recorded at the Registry in Book 10430, Page 453. On January 19, 2006, the Town filed a foreclosure action in the Land Court.
[Note 3] There is a discrepancy in the summary judgment record as to whether the area of Locus is 44,174 or 46,224 square feet. Both parties agree that the discrepancy is irrelevant for purposes of this summary judgment motion.
[Note 4] While [t]he history and practice of a planning board . . . are factors which may be considered when deciding whether a planning board has acted arbitrarily or capriciously, Lakeside Builders v. Planning Bd., 56 Mass. App. Ct. 842 , 847 n.6 (2002), a local board is not bound by its past record as each project consists of unique characteristics and is evaluated on a case by case basis. See Woodhouse v. Marot, 16 LCR 76 , 80 (2008) (Misc. Case No. 324954) (Trombly, J.) (discussing subdivision waivers). See also DeWitt v. Schwartz, 17 LCR 96 , 99 (2009) (Misc. Case No. 340925)( Sands, J.) (discussing special permits).
[Note 5] Plaintiff also argues that Variance 1 in 1992 related to soil conditions which have been resolved. The 1992 application for wetlands issues was for a special permit and not a variance. Variance 1 was for the same issue as the case at bar, an undersized lot, which was denied.
[Note 6] A per se taking would not apply even if the diminution in value were 95% instead of 100%. Giovanella, 447 Mass. at 725 (citing Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 330 (2002)).
[Note 7] As a second prayer for relief, Plaintiff also requested that this court grant such other relief as is just and proper.
[Note 8] It should be noted that the taking issue was not discussed at the case management conference and Plaintiff did not mention such issue in its case management conference statement.
[Note 9] That said, even if Plaintiffs Complaint conferred upon this court the authority to review a takings claim, Plaintiff has failed to file any affidavits relative to this matter and has provided no evidence in support of its assertion that Locus has no use or value. Plaintiff argues that a trial is necessary to determine the facts relative to a taking, but, as discussed at oral argument, I find no dispute over material facts as Plaintiff has presented no facts to justify its position. See Mass. R. Civ. P. 56(c). Such record would not support an inference that Plaintiff has sustained its burden to establish that the denials of Variance 2 and Variance 3 were a taking.