ELIZABETH MURPHY, ERIC KOLMAN and PAUL MYERS vs. JERALD SAVAGE, HERBERT MUSMON, ORLANDO DiGIAMPIETRO, DENNIS JOHNSON and GEORGE EICHORN, as they are members of the STOUGHTON ZONING BOARD OF APPEALS; STEPHEN BORNSTEIN, FAITH CALABRESE, ANTHONY DiBENEDITTO, ARNOLD I. SMITH and LOUIS MODESTINO, JR., as they are alternate members of the STOUGHTON ZONING BOARD OF APPEALS; THE TOWN OF STOUGHTON; and JOHN KOTLIK.

On March 4, 1988, the Plaintiffs, Elizabeth Murphy ("Murphy"), Eric Kolman and Paul Myers, (collectively referred to as the "Plaintiffs"), filed a complaint in the Land Court seeking judicial review, in accordance with G.L. c. 40A , §17, of a decision of the Defendant, Stoughton Zoning Board of Appeals ("Board"), granting a variance to the Defendant, John Kotlik ("Kotlik"), for the construction of a single-family dwelling on land ("Locus") abutting the Plaintiffs' respective properties.

Following this Court's denial of the Plaintiffs' motion for summary judgment, a trial was held on February 21, 1989 at which a stenographer was appointed to record and transcribe the testimony. Three witnesses testified and four exhibits were introduced into evidence. All exhibits are incorporated herein for the purpose of any appeal.

On all of the evidence, I find as follows:

1. Kotlik is the record owner of Locus, a rectangular shaped parcel containing 23,450 square feet, with a width of 70 feet and a length of 334 feet. Locus is shown as Lot "1A" on Sheet No. 36 of the plans filed with the Office of the Board of Assessors for the Town of Stoughton (Exhibit No. 2).

2. Locus was originally part of a larger conforming lot owned by Mary Zabrosky, the mother of Murphy and the grandmother of Kotlik. In 1968, Mary Zabrosky conveyed Locus to her mother-i n-law, and Kotlik's grandmother, Agnes Zabrosky, who used the strip of land primarily for a garden. This severence of Locus from the original conforming parcel created a nonconforming lot, which with the passage of time, became increasingly more nonconforming under the Stoughton By-law ("By-law") (Exhibit No. 1). Locus was devised to Kotlik under the will of Agnes Zabrosky in 1987.

3. As shown on Map "C" of the Zoning Maps of the Town of Stoughton (Exhibit No. 1), Locus is situated in an R-20, or "Residential -Suburban B", zoning district. Pursuant to Section VI (B) of the By-law, the dimensional requirements for any use permitted in an R-20 zoning district are as follows:

a. Minimum Lot Area: 30,000 square feet

b. Minimum Lot Width: 125 feet c. Minimum Lot Frontage: 100 feet

d. Minimum Lot Depth: 140 feet

e. Minimum Front Yard: 40 feet

f. Minimum Side Yard: 20 feet

g. Minimum Rear Yard: 40 feet

Inasmuch as Locus contains an overall area of only 23,450 square feet, it fails to conform to the minimum lot area (30,000 square feet) required by the By-law in an R-20 zone, and consequently, fails to meet minimum lot frontage requirements as well. In addition, Locus contains a 55 foot deficiency in the minimum lot width (125 f eet) required in an R-20 zone.

4. In view of the nonconforming nature of Locus, Kotlik applied to the Board in December of 1987 seeking dimensional variances of 6,550 square feet in required lot area, 30 feet in required frontage and 55 feet in required lot width for the construction of a single-family residence on the property.

5. Following a public hearing with respect to Kotlik's application on January 14, 1988, the Board voted unanimously to grant the requested variance for the following reasons:

a) Conditions and circumstances are unique to the appellant's lot, structure or building and do not apply to the neighboring lands, structures or building in the same district. The lot is a long and narrow parcel whereas abutting properties are more nearly square in design although mostly smaller.

b) Strict application of the provisions of this by-law would deprive the applicant of reasonable use of the lot, structure or building in a manner equivalent to the use permitted to be made by other owners of their neighboring lands, structures or buildings in the same district. The area consists of single family dwellings and denial of this would effectively deny the petitioner any use of his property.

c) The unique conditions and circumstances are not the result of actions of the applicant taken subsequent to the adoption of this by-law. The lot was created on February 16, 1968 by recording in the Registry and was inherited by the applicant, at that time it met or exceeded all the Town requirements in area and setback.

d) Relief, if approved, will not cause substantial detriment to the public good or impair the purposes and intent of this by-law. The use of the property as a single family dwelling is consistent with the use and the neighborhood currently consists of single family dwellings.

6. The Plaintiffs, as abutters, or abutters to abutters, of Locus, challenge the legal validity of the Board's decision to grant the variance.

Massachusetts General Laws Chapter 40A, section 10 sets forth the law with respect to the granting of variances:

The permit granting authority shall have the power . . . to grant . . . a variance from the terms of the applicable zoning ordinance or by-law where such permit granting authority specifically finds that owing to circumstances relating to the soil conditions, shape, or topography of such land . . . and especially affecting such land . . . 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 or appellant, and that desireable 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. . . .

It is familiar law that no person has a legal right to a variance and that they are to be granted sparingly. Gordon v. Zoning Board of Appeals of Lee, 22 Mass. App. Ct. 343 , 349 (1986); Damaskos v. Board of Appeals of Boston, 359 Mass. 55 , 61 (1971).

On an appeal to the Land Court under G.L. c. 40A, §17, the trial judge is required to hear the matter de novo, make independent findings of fact and determine the legal validity of the Board's decision upon the facts so found. Kirkwood v. Board of Appeals of Rockport, 17 Mass. App. Ct. 423 , 427 (1984); Gordon at 348. The burden of producing evidence that the statutory prerequisites for a variance have been met, and that such a grant is justified, rests with the party seeking the variance and the Board ordering its grant. Dion v. Board of Appeals of Waltham, 344 Mass. 547 , 555-556 (1962); Boyajian v. Board of Appeal of Wellesley, 6 Mass. App. Ct. 283 , 284 (1978); Warren v. Zoning Board of Appeals of Amherst, 383 Mass. 1 , 10 (1981); Gordon at 349. The trial judge on appeal is instructed to annul the Board's decision to grant or deny a variance only if he or she finds it to exceed the authority of the Board. DiGiovanni v. Board of Appeals of Rockport, 19 Mass. App. Ct. 339 , 349 (1985). The Board's decision will be deemed to be in excess of its given authority when it has been based upon a legally untenable ground or when it is unreasonable, whimsical, capricious or arbitrary. Id. citing Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555 , 557, 559-560 (1954). I find and rule that, inasmuch as Kotlik has presented no evidence of hardship due to the soil conditions, topography or shape of Locus, as required by G.L. c.40A, §10, the decision of the Board granting Kotlik's application for a dimensional variance must be and hereby is annulled.

Locus is a long, narrow lot, deficient in minimum square footage, street frontage and lot width under the By-law. Kotlik asserts that the dimensional variance was properly granted by the Board due to the unique "shape" of Locus. While the evidence does reveal that, perhaps unlike most other lots in the R-20 zoning district, Locus is more narrow in the front than the rear, the variance appears to have been granted herein for purposes of curing the lot's nonconforming size, as opposed to its unusual shape. Insofar as lot "size" and lot "shape" are not synonomous, I find the Board's issuance of the variance to be in excess of the standards set forth for such a grant in G.L. c. 40A, §10. See McCabe v. Zoning Board of Appeals of Arlington, 10 Mass. 934 (1980); Guiragossian at 116-117; Gordon at 350-351.

The Board's reasoning in granting Kotlik's application for a variance suffers from further defects in that it overlooks the well-settled rule that the division of a certain conforming tract of land into one or two nonconforming lots does not create a substantial hardship especially affecting the nonconforming parcel. Raia v. Board of Appeals of North Reading, 4 Mass. App. Ct. 318 , 321-322 (1976); Warren at 12. In the instant matter, Locus was severed from a larger conforming parcel of real estate in 1968. From 1968 to 1987, Locus remained unimproved, with its dimensions becoming increasingly more nonconforming under various amendments to the By-law. Insofar as the nonconforming nature of Locus is attributable primarily to its lack of sufficient size and frontage for a buildable lot, and as a lack of size and frontage does not amount to a circumstance of "shape" under G.L. c. 40A, §10, it is an improper basis for the Board's grant of the variance.

In view of the foregoing, I find that Kotlik has failed to prove that owning to circumstances relating to topography, soil conditions or shape of Locus, he will suffer substantial hardship unless the Board's grant of a variance is sustained. Accordingly, I rule that the decision of the Board with respect to Kotlik's application for a variance exceeded its authority and must be and hereby is annulled.

Judgment accordingly.