MISC 06-327535

April 5, 2011


Trombly, J.


This is an appeal pursuant to G. L. c. 40A, § 17. Plaintiff Glenn Gershon appeals a decision by the Board of Appeals of the Town of Stow (the Board) denying his request for a variance from the zoning bylaw’s setback requirements in order to accommodate a deck that he constructed prior to applying for the variance. On February 9, 2011, Plaintiff filed a Motion for Summary Judgment. Defendant filed its opposition and a Cross-Motion for Summary on March 11, 2011. A hearing on the motions was held on March 31, 2011.

Plaintiff is the owner of a single-family home located at 76 Pine Point Road, Stow, Massachusetts (the Locus), pursuant to a deed recorded at the Middlesex South District Registry of Deeds Book 44159, Page 121. The Locus is shown on Stow Property Map Sheet U-1 as Parcel 28. Pine Point Road follows the most northwesterly contour of Lake Boon and provides access to shoreline cottage-type structures, many of which have been converted to year-round use. Most of the lots in the general vicinity of Lake Boon do not meet the current bylaw requirements for area and setbacks and are therefore characterized as pre-existing, non-conforming lots.

Section 4.4 of the Stow Zoning Bylaw “Table of Dimensional Requirements” provides that in a residential district the minimum front yard is thirty feet, the minimum side yard is twenty-five feet, and the minimum rear yard is forty feet. In late January and early February 2006, Plaintiff constructed a free-standing hot tub enclosure that also accommodated the descent to the lake shore. At that time he also removed a stairway landing entrance to the house that measured approximately 4' x 4' and replaced it with a deck measuring 12' x 12'. Both of these projects were completed without obtaining a building permit. The newly constructed deck is located approximately 4'6" from the Locus’ easterly side lot line and approximately 20' from the Locus’ frontage.

On March 24, 2006, the Building Commissioner notified Plaintiff that the deck and hot tub enclosure violated the front, side and rear setback requirements. Plaintiff was ordered to remove both structures or apply for a variance from the Zoning Board of Appeals within fourteen days. On June 13, 2006, Plaintiff filed a petition for a variance. A public hearing was held on July 10, 2006, and the Board conducted a site visit on July 16, 2006. On July 19, 2006, the Board issued its decisions and granted a variance for the hot tub enclosure but denied a variance for the deck. The Board found that the size of the deck was excessive and although literal enforcement of the bylaw might result in substantial hardship, [Note 1] desirable relief could not be granted without substantial detriment to the public good and would not be in keeping with the general neighborhood. The Board also found that granting the variance would derogate from the intent and purpose of the Zoning Bylaw. In its decision the Board stated that it would allow Plaintiff to reconstruct the old deck, but not expand it, after obtaining the proper permits from the Building Department.

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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. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat’l 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 weighing the merits of a summary judgment motion, the court must address two questions: (1) whether the factual disputes are genuine, and (2) whether a fact genuinely in dispute is material. Town of Norwood v. Adams-Russell Co., Inc., 401 Mass. 677 , 683 (1988) (citing Anderson v. Liberty, 477 U.S. 242, 247-48 (1986)). “As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248, cited in Carey v. New England Organ Bank, 446 Mass. 270 , 278 (2006); Molly A. V. Comm’r of the Dept. Of Mental Retardation, 69 Mass. App. Ct. 267 , 268 n.5 (2007). In order to determine if a dispute about a material fact is genuine, the court must decide whether “the evidence is such that a reasonable [fact finder] could return a verdict for the non-moving party.” Anderson, 477 U.S. at 248.

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In an appeal from the decision of a zoning board of appeals pursuant to G. L. c. 40A, § 17, the reviewing court engages in de novo fact finding; however, the board’s decision will not be overturned unless it is “based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary.” Davis v. Zoning Board of Chatham, 52 Mass. App. Ct. 349 , 355-56 (2001) (quoting Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478 , 486 (1999)).

G. L. c. 40A, § 10 imposes three conditions for the grant of a variance by a board of appeals: “[1] 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, [2] a literal enforcement of the provisions of the ordinance or bylaw would involve substantial hardship, financial or otherwise, to the petitioner or appellant, and [3] 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.” These three requirements for the grant of a variance by a board of appeals are conjunctive, and all three must be met. Perez v. Board of Appeals of Norwood, 54 Mass. App. Ct. 139 , 142 (2002) (citing Kirkwood v. Board of Appeals of Rockport, 17 Mass. App. Ct. 423 , 428 (1984)).

Plaintiff argues that he is entitled to a variance because there was no basis for the Board’s finding that the size of the deck was excessive. In support of his argument Plaintiff points to the approval of numerous other applications for special permits and variances for large decks and similar structures at nearby properties. [Note 2] Plaintiff appears to be upset by the Board’s lack of explanation concerning the “excessive” nature of his deck in comparison to others that have been approved in his neighborhood.

The Board was not required to provide any more explanation than it did. While there are rigorous requirements for a board’s findings in support of the grant of a variance, when the board refuses relief, less is necessary. Gamache v. Town of Acushnet, 14 Mass. App. Ct. 215 , 220 (1982). And “[i]n the absence of [a] fundamental ground for a variance, it is not necessary to inquire further.” Girard v. Board of Appeals of Easton, 14 Mass. App. Ct. 334 , 338 (1982). Here Plaintiff did not make any showing that he will suffer a substantial hardship due to the soil conditions, shape or topography of the Locus. In fact, Plaintiff has not made any reference to the soil conditions, shape or topography of the Locus. Plaintiff does reference the “undersized” nature of the lots in the area, but the “size” of a lot is not the same as the “shape” of a lot for purposes of the grant of a variance. Shafer v. Zoning Board of Appeals of Scituate, 24 Mass. App. Ct. 966 , 967 (1987); McCabe v. Zoning Board of Appeals of Arlington, 10 Mass. App. Ct. 934 , 934 (1980). Because Plaintiff did not make any showing concerning at least one of the fundamental conditions of the grant of a variance, I cannot conclude that the Board’s decision was based on a legally untenable ground, or that it was unreasonable, whimsical, capricious or arbitrary.

Accordingly, Plaintiff’s Motion for Summary Judgment is DENIED and Defendant’s Cross-Motion for Summary Judgment is ALLOWED.

Judgment to enter accordingly.

Charles W. Trombly, Jr.


Dated: April 5, 2011


[Note 1] In its Memorandum, Defendant asserts that the Board’s decision contains a scrivener’s error and that the Board actually intended to find that Plaintiff would not suffer any substantial hardship. Given my ultimate decision, resolution of this issue is not necessary.

[Note 2] I would note that Plaintiff’s reliance on any special permit applications approved by the Board seems misplaced as special permits are subject to a wholly different set of standards than variances.