GLENN A. GERSHON v. BOARD OF APPEALS OF THE TOWN OF STOW

Pursuant to G. L. c. 40A, § 17, Plaintiff Glenn Gershon appealed a decision by the Board of Appeals of the Town of Stow (the Board) to deny 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.

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.” Plaintiff failed to make any showing that he would suffer a substantial hardship due to the soil conditions, shape or topography of his lot. A Decision has entered this day finding that Plaintiff did not meet these conditions for the grant of a variance, and therefore the Board properly denied his request for a variance. Accordingly, it is

ORDERED and ADJUDGED that the Board properly denied Plaintiff’s request for a variance and its decision was not based on a legally untenable ground, and it was not unreasonable, whimsical, capricious or arbitrary.

By the Court. (Trombly, J.)