MISC 123263

February 17, 1988

Middlesex, ss.



This is an appeal pursuant to G.L. c. 40A, §17 of a decision of the Zoning Board of Appeals of the Town of Holliston ("Board") dated April 13, 1987 denying the plaintiffs' request for a variance from the lot size and setback requirements of the zoning by-law to enable the plaintiffs to construct a single family dwelling on a .5 acre lot at 55 Rockland Street in Holliston.

A trial was held on February 1, 1988 at which six exhibits were introduced into evidence. These exhibits are incorporated herein for purposes of any appeal.

The Court finds the following:

1. The plaintiffs purchased the locus at 55 Rockland Street for one thousand dollars on December 17, 1981 at a tax title auction conducted by the Town of Holliston. The locus is a lot of .5 acres more or less which previously had been held in common ownership with adjacent land. The lot is vacant except for the foundation of a house destroyed by fire approximately ten years ago.

2. The locus is located within an AR-1 Zoning District which requires a building lot to have an area of at least two acres.

3. On February 23, 1987, the plaintiffs petitioned the Zoning Board of Appeals of the Town of Holliston for a variance as stated to allow the construction of a single family dwelling.

4. A hearing was held on the plaintiffs' petition on March 18, 1987 pursuant to due notice.

5. On April 13, 1987, the Board issued a written decision denying the plaintiffs' request for a variance.

6. The Board in its decision found that the lot contained only 25% of the necessary area thus requiring area and setback variances. The Board determined that a variance granted to the plaintiffs would have a damaging effect on the district's conforming development since the adoption of the by-law in 1963.

The plaintiffs have filed a petition for review in this Court alleging that the decision of the Holliston Zoning Board of Appeals in denying the request for a variance was unreasonable, arbitrary and capricious and was based on erroneous findings. They ask this Court to find that the Board exceeded its authority in denying the variance and thus annul the decision of the Board and grant the requested relief.

The law in this area is clear. Massachusetts General Laws c. 40A, §10 provides in part:

The permit granting authority shall have the power ... to grant ... with respect to particular land ... a variance ... 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 ... and that the desirable relief may be granted without detriment to the public good and without nullifying or substantially derogating from the intent or purpose of such ordinance or by-law....

On appeal, the judge hears the matter de novo and determines the validity of the Board's decision on the basis of the facts found. G.L. c. 40A, §17; Bicknell Realty Co. v. Board of Appeal of Boston, 330 Mass. 676 , 679 (1953); The Prudential Insurance Co. of America v. Board of Appeals of Westwood, 23 Mass. App. Ct. 278 , 282 n.7 (1986); Gordon v. Zoning Board of Appeals of Lee, 22 Mass. App. Ct. 343 , 348 (1986). The burden of proof rests upon the person seeking the variance and the Board ordering a variance to produce evidence at the hearing that the statutory prerequisites have been met and that a variance is justified. Dion v. Board of Appeals of Waltham, 344 Mass. 547 , 555-556 (1982); Raia v. Board of Appeals of North Reading, 4 Mass. App. Ct. 318 , 321 (1976).

I find and rule that there is no evidence before this Court to warrant a finding that the decision of the Board was unreasonable, whimsical, capricious or arbitrary. The plaintiffs presented no evidence of a hardship based upon soil conditions, shape or topography of the locus. It is agreed that the plaintfffs were aware at the time of purchase that this one-half acre lot was located in an agricultural/residential district which required two-acre zoning. The locus lot was originally part of a larger parcel which was divided into a conforming lot and the nonconforming locus lot. Prior to this division, the parcel would have met the requirements of the by-law. In Raia v. Board of Appeals of North Reading, 4 Mass. App. Ct. 318 , 322 (1976), the court states:

The division of that property into two nonconforming lots does not create a substantial hardship especially affecting the vacant lot, even though the latter could not be built upon, as it could have remained part of a conforming lot. [citations omitted]

In addition to the lot size variance, the Board specifically cited other reasons in its denial of the variance including the necessity of issuing dimensional setback variances and the damaging effect on the district. It 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).

Based upon the above and having reviewed all of the evidence, I find and rule that there was insufficient evidence presented at trial to support a finding that the Board exceeded its authority in denying the variance. Therefore, the decision of the Holliston Board of Appeals in denying the plaintiffs' application for a variance is affirmed.

Judgment accordingly.