These two Land Court actions, the more recently filed one having been transferred to this department from the Bristol County Superior Court Department, both involve the validity of a variance granted to Luis Caldeira by the Taunton Board of Appeals. The plaintiffs in the original Land Court case, who are among the defendants in the second action, are abutters to the Caldeira property. The factual situation is not disputed. Mr. Caldeira was granted a building permit to construct a four-family dwelling at 12 1/2 Maple Street in Taunton in the County of Bristol.
Subsequently, the municipal authorities determined that neither a four-unit nor a six-unit dwelling was permitted in the applicable zoning district. Mr. Caldeira therefore applied for a variance to allow a four-unit dwelling in the district zoned for urban residential use, and subsequently the defendant Board of Appeals granted such a variance. Mr. Caldeira appealed from the terms and conditions of the variance in the original Superior Court case, and the abutters appealed from its grant in the Land Court.
The Taunton zoning ordinance which is before the Court admittedly contains no provisions for a use variance, and accordingly, the Board of Appeals was without jurisdiction to grant the relief sought by Mr. Caldeira. Section 15 of the Taunton zoning ordinance which sets forth the powers of the Board of Appeals provides in section 15.2 that the Board of Appeals shall have the following powers:
1. To hear and decide appeals taken by any person aggrieved by reason of his inability to obtain a permit or enforcement action from any administrative official under the provisions of Chapter 40A, M.G.L.; by the regional planning agency in whose area the city or town is situated, by any person including an officer or board of the City of Taunton or of an abutting city or town aggrieved by an order or decision of the Inspector of Buildings, or other administrative official in violation of any provision of the Zoning Act, Ch. 40A, M.G.L., or of this Ordinance.
2. To hear and decide application for special permits as provided in this Ordinance, subject to any general or specific rules therein contained and subject to any appropriate conditions and safeguards imposed by the Board of Appeals.
3. To hear and decide upon appeal or upon petition with respect to particular land or structures a variance from the terms of this Ordinance where the Board of Appeals specifically find that owing to circumstances relating to the soil conditions, slope 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 this Ordinance, would involve substantial hardship, financial or otherwise, to the petitioner or appellant, and that desireable (sic) relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intents or purposes of this Ordinance.
The third paragraph set forth above parrots the language of G.L. c. 40A. Section 10, however, then goes on to provide as follows:
Except where local ordinances or by-laws shall expressly permit variances for use, no variance may authorize a use or activity not otherwise permitted in the district in which the land or structure is located;
There is no such express provision in the Taunton zoning ordinance, and accordingly relief cannot presently be granted to Mr. Caldeira.
Unquestionably, the present posture is an unfortunate situation; so far as the present record appears, Mr. Caldeira acted entirely in good faith and the mistake initially appears to have been that of the City. However, until the municipal council sees fit to amend the provisions of the zoning ordinance to recognize use variances, relief is barred and the motion in each case for summary judgment must be allowed. The motion originally was argued on February 3, 1988 and at the request of the parties the Court did not take action in the hope that the matter could be resolved by agreement. Since it now appears that the parties are unable to reach an agreement, the Court accordingly has ruled on the pending motion.
By the Court