No. 115936 is an appeal pursuant to M.G.L. c. 40A, §17 of a decision of the Board of Appeals of the Town of Harvard denying an application for a variance to permit the use of an existing right of way as an "upland access" to the plaintiffs' property. No. 118029 is an appeal from a decision of the Board of Selectmen of the Town of Harvard denying an application for a special permit to construct an alternative "lowland access" driveway over a Watershed Protection and Floodplain district ("W") and a Watershed Protection and Flood Hazard district ("WFH"). The plaintiffs' motion to consolidate the two actions was allowed on October 6, 1986. A trial was held on January 7, January 14, February 27, March 5, and April 9, 1987 at which five witnesses testified, the parties filed an agreed statement of facts, and seventeen exhibits were introduced into evidence. These exhibits are incorporated herein for the purposes of any appeal.
Upon consideration of the foregoing, the Court finds:
1. Edmond H. Plante is the owner of Lot 246 in the Town of Harvard as shown on Land Court Plan No. 5604-101.
2. Edmond H. Plante, on October 23, 1979, conveyed to E. H. Plante, Inc. a portion of said Lot 246, shown as Lot No. 333 on Land Court Plan No. 5604-139. Edmond H. Plante reserved for the benefit of the remaining portion of Lot 246 certain easements, including a right of way running from West Bare Hill Road as shown on Plan No. 5604-139.
3. E. H. Plante, Inc. built a single family residence on Lot 333 and on March 20, 1980 conveyed such lot to Marvin and Lydia Tolf ("Tolf"). The residence was serviced by a driveway as shown on Land Court Plan No. 5605-H (Exhibit 3). The conveyance of Lot 333 to Tolf was made subject to the easement described above.
4. On March 29, 1980, the Town voted to amend §4.2.1 of the Harvard Bylaw to increase the width of common driveways and the lot frontage requirement.
5. On or about December 14, 1984, Edmond H. Plante and E. H. Plante, Inc. applied to the Harvard Board of Appeals for variances from the provisions of the zoning bylaw to permit the use of the reserved right of way over Lot 333 as the "upland access" driveway for a single family residence to be constructed on the remaining portion of Lot 246 which is roughly 23 acres. On February 15, 1985, the Board of Appeals filed a decision dated February 11, 1985 denying these requests for variances.
6. On or about March 18, 1985, Edmond H. Plante and E. H. Plante, Inc. applied to the Harvard Conservation Commission for an Order of Conditions under the provisions of G.L. c. 131, §40, to build as an alternative to the way over Lot 333, a driveway entirely on Lot 246, from Woodside Road across wetlands to service the remaining portion of Lot 246, which Order of Conditions the Harvard Conservation Commission refused to grant. Thereafter, Edmond H. Plante and E. H. Plante, Inc. appealed this denial to the Department of Environmental Quality Engineering. On December 2, 1985, the Department of Environmental Quality Engineering issued a superceding order granting an Order of Conditions under G.L. c. 131, §40 permitting the requested "lowland access" driveway from Woodside Road to service the remaining portion of Lot 246.
7. On or about July 10, 1985, Edmond H. Plante and E. H. Plante, Inc. submitted an application to the Harvard Board of Selectmen pursuant to §§5.8, 5.9, and 6.2 of the Harvard zoning bylaws for a special permit to construct this same driveway for which the aforesaid Order of Conditions had been requested through a "Wn and "WFH" district. On October 23, 1985, the Board filed with the Town Clerk a letter dated October 11, 1985 denying the special permit.
8. The appeals from the denial of both the variance and the special permit were timely filed and are properly before this Court.
9. These matters were called for trial on December 9, 1985. As a result of a stipulation entered into by the parties on this December 9, the action involving the special permit was remanded to the Board of Selectmen in order that the Board could "take further evidence and thereafter render an amended decision containing full and complete findings."
10. On July 31, 1986, the Division of Water Pollution Control of the Department of Environmental Quality Engineering certified that with respect to the proposed driveway involved in the special permit application "there is reasonable assurance that the proposed activity will be conducted in a manner which will not violate applicable water quality standards adopted by the Division under authority of Section 27(5) of Chapter 21 of the Massachusetts General Laws, as codified in 314 CMR 4.00. . . "
11. On December 18, 1986, the New England Division, Corps of Engineers of the Department of the Army issued a permit". . . to discharge dredged or fill material into waters of the United States upon the issuance of a permit from the Secretary of the Army acting through the Chief of Engineers pursuant to Section 404 of the Clean Water Act (33 U.S.C. 1344). . ." authorizing construction of the driveway, the subject matter in the application for the special permit. Said permit from the Department of the Army was accepted and executed by the applicant on December 22, 1986.
12. On December 23, 1986, the Board of Selectmen rendered an amended decision again denying the plaintiffs' request for the special permit.
13. The easements crossing Lot 333 measures 25.04 feet wide at the junction of West Bare Hill Road and widens over its length to 29.44 feet at the boundary of the plaintiffs' property. The applicable section of the zoning bylaw (§§4.1, 4.1.lc, and 4.2.1) require that the driveway be 35 feet wide and have 50 feet of frontage on a public way.
14. The Board of Appeals denied the variance because the land did not meet the statutory prerequisites for a variance and for other reasons.
15. Under the special permit, the plaintiffs' proposed driveway across "W" and "WFH" districts and Bowers Brook will be approximately 560 to 570 feet long and will run to Woodside Road, a public way. The driveway will have five forty-inch culverts and will be built up to a height of two to three feet above the level of the wetland.
16. Sections 5.8 and 5.9 of the Harvard Bylaws set forth specific standards for special permits involving wetlands to insure that high water storage and ground water absorption not be reduced and that any proposed construction does not significantly effect the drainage or natural flow pattern.
17. Testimony from three engineers including an environmental engineer and a geotechnical engineer clearly demonstrate that the proposed driveway would have a de minimus effect upon flora and fauna and no adverse effect on Bowers Brook or the drainage or natural flow pattern of the wetland areas.
I. Variance
The decision of the Board of Appeals to deny the plaintiffs a variance for "upland access" did not exceed the authority of the Board and consequently will not be annulled. The law is clear that "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); Broderick v. Board of Appeal of Boston, 361 Mass. 472 , 479 (1972). The burden lies upon the person seeking the variance to produce evidence that the Board exceeded its authority, but even if it appears that these requirements have been met, the grant of such variance is, in large part, discretionary. Hunters Brook Realty Corp. v. Zoning Bd. of Appeals of Bourne, 14 Mass. App. Ct. 76 (1982); Ferrante v. Bd. of Appeals of Northampton, 345 Mass. 158 , 162 (1962).
While this appears to be a situation where the shape and soil conditions of the plaintiffs' lot may well be such as to sustain a variance if issued, the Board specifically cited other reasons why it would not grant the variance. There was insufficient evidence presented at trial to support a finding that the Board exceeded its authority in denying the plaintiffs' application for a variance.
II. Special Permit
M.G.L. c. 40A, § 17 provides for the review of decisions of permit granting authorities.
The 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.
On appeal, the trial court hears the matter de novo, makes its own findings, and must not disturb the decision of the authority unless the decision rests on legally untenable grounds or is unreasonable, whimsical, capricious, or arbitrary. MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 639 (1970). The Court may not substitute its judgment for that of the Board, Gulf Oil Corp. v. Board of Appeals of Framingham, 355 Mass. 275 , 277-278 (1969), Subaru of New England, Inc. v. Board of Appeals of Canton, 8 Mass. App. Ct. 483 , 486-488 (1979), with review being limited to the validity of the Board's action in granting or denying the permit, Kiss v. Board of Appeals of Longmeadow, 371 Mass. 147 , 154 (1976). Additionally, the burden of proof rests upon the applicant for zoning relief to prove that the statutory prerequisites for relief have been met. Ranney v. Board of Appeals of Nantucket, 11 Mass. App. Ct. 112 , 118 (1981).
The plaintiffs have met their burden by showing that the proposed driveway across the "W" and "WFH" districts will have no adverse effect upon ground water flow, flood storage, and ground water absorption and have encountered little significant opposition from the Town of Harvard. I find that the decisions of the Board of Selectmen both initially and upon remand in denying the special permit for "lowland access" have no factual basis and were legally untenable, arbitrary, and thus exceeded their authority and are hereby annulled. I therefore rule that the special permit be issued authorizing the construction of the driveway in the "W" and "WFH" districts to service one single family residence within the 23 acres of Lot 246, such driveway to be constructed in accordance with the proposal presented to the Court in this matter.
Judgment accordingly.
EDMOND H. PLANTE and E. H. PLANTE, INC. vs. MARY E. WELCH, MALCOLM C. HENRY, and JOHN O. BURDICK, As They Are The Members Of And Constitute The Board Of Selectmen Of The Town Of Harvard, Worcester County, Massachusetts.