MISC 127198

October 25, 1989

Norfolk, ss.



On March 18, 1988, the Plaintiffs filed a complaint, pursuant to G.L. c. 40A, §17, seeking judicial review of a decision of the Defendant, Stoughton Zoning Board of Appeal ("Board"), granting a variance to the Defendants, John C. and Catherine A. Russo (collectively referred to as "the Russos"), for the construction of a single-family residence on property located in the rear portion of 652 Plain Street in Stoughton, Massachusetts.

Prior to trial, the Plaintiffs moved for summary judgment, which motion was denied by Order of this Court dated June 22, 1988. The matter proceeded to trial on May 3, 1989, at which time all testimony and evidence were recorded and later transcribed by a court-appointed reporter. Three witnesses testified and twenty exhibits were received into evidence. All exhibits are incorporated herein by reference for purposes of any appeal.

On all of the evidence, I make the following findings of fact:

1. On January 8, 1964, one Soli Morris and one Marion P. Morris (collectively referred to as "the Morrises'') acquired title to two parcels of land, with the buildings thereon, situated on the southerly side of Plain Street in Stoughton. The first parcel so acquired is shown as Lot No. 1B, containing 28,623 square feet of land, on a plan entitled "Revised Plan of Lots, Stoughton, Mass.", dated December, 17, 1957, recorded at Book 3612, Page 128 in the Norfolk County Registry of Deeds [Note 1] (Exhibit No. 20A). The second parcel so acquired appears as Lot No. 2A, containing 20,010 square feet of land, on an earlier plan entitled "Revised Plan of Lots, Stoughton, Mass.", dated July 2, 1956, recorded at Book 3499, Page 166 ("1956 Plan") (Exhibit No. lB). This conveyance is recorded at Book 4134, Page 70 (Exhibit No. 20A).

2. By deed dated November 23, 1965, recorded at Book 4315, Page 184 (Exhibit No. lB), the Morrises acquired title to an additional parcel of land situated southerly from Plain Street in Stoughton, which land is bounded and described as follows:

Starting at the southwesterly corner of Lot lA, as shown on the 1956 Plan and thence, running

SOUTHEASTERLY by land of Johnson, 545 feet, more or less, to a stake at the land of Charles Sheehan; thence, turning and running

NORTHEASTERLY by said Sheehan land, 245 feet to a stake at other land formerly of Theodore Angelos and Richard A. Lyons; thence, running

NORTHWESTERLY by said land formerly of Theodore Angelos and Richard A. Lyons 495 feet, more or less, to a stake at other land formerly of said Angelos and Lyons; thence, turning and running by land formerly of Angelos and Lyons and Lot 2A and lA on Plan above referred to, 245 feet to point of beginning.

3. By deed dated August 14, 1985, recorded at Book 6760, Page 398 (Exhibit No. 20C), the Morrises conveyed the aforesaid parcels, as well as an additional parcel located in the rear thereof, containing approximately 33,666 square feet of land, to one Jennaro Montopoli and one Mark D. Montopoli ("Montopolis"). These contiguous parcels of land appear as Lots No. 10, 11, 16, 17 and 17A on Sheet No. 22 (Exhibit No. 16) of the maps filed with the Office of the Board of Assessors for the Town of Stoughton. As depicted thereupon, Lots No. 16 and 17 front on Plain Street, while Lots No. 10, 11 and 17A comprise the rear portion of such land.

4. By deed dated December 13, 1985, recorded at Book 6894, Page 263 (Exhibits No. 4 and 20D), the Russos acquired title to Lots No. 10 and 11. Thereafter, on October 24, 1986, the Russos acquired title to Lots No. 16, 17 and 17A, said conveyance being evidenced by a deed recorded at Book 7296, Page 55 (Exhibits No. 5 and 20E). This property, which includes Locus, consists of approximately five (5) acres of land, with about two hundred and twelve (212) feet of frontage on Plain Street. It is depicted on a plan entitled "Plan of Land, 652 Plain Street, Stoughton, Mass.", dated January 16, 1988 (Exhibit No. 18). In its existing condition, this tract of land contains frontage and square footage similar in amount to those of abutting land owned by the Plaintiff, J. Ellis Ayers.

5. On October 29, 1987, the Russos applied to the Board for a variance authorizing the creation of a single-family lot from their existing lot at 652 Plain Street (See Exhibit No. 20G). Specifically, the Russos requested a variance from Section VIB of the Town of Stoughton Zoning By-law ("By-law") (Exhibit No. 9), requiring minimum lot frontage of one hundred (100) feet and minimum lot width of one hundred and twenty-five (125) feet, as measured at the setback line, for any use permitted in the R-20 residential zone. Following the objections of some sixteen (16) neighbors and abutters (See Exhibit No. 20H), the Russos voluntarily withdrew their application on December 1, 1987 (See Exhibit No. 20).

6. After developing a reconfiguration of their proposed lot, the Russos submitted a new application to the Board seeking only a variance in lot width, said application being dated January 14, 1988 (See Exhibits No. 10 and 20J). Again, on January 25, 1988, objections were filed by abutting and neighboring land owners (See Exhibit No. 20K).

7. Following a public hearing held on February 4, 1988, the Board voted to grant the Russos' application for a forty (40) foot lot width variance, which would reduce the width requirement of Locus to eighty-five (85) feet. The Board rendered its decision on February 18, 1988, the same being filed with the Stoughton Town Clerk on March 4, 1988 (See Exhibit No. 12).

8. The Russos defend the Board's grant of the aforesaid variance on the following grounds:

a.) Locus is unique insofar as its shape differs from neighboring lots. Specifically, it is of a much larger size than other lots in the neighborhood.

b.) Locus is of an unusual shape, consisting of one hundred and twenty-five (125) feet in width as required by section VIB of the By-law. However when the width of Locus is measured from the front set back line, as required by the Town of Stoughton, a deficiency in width of approximately forty (40) feet results.

c.) The unique conditions and circumstances of Locus result from the random buying and selling of portions of the original parcel.

d.) The grant of the variance does not cause substantial detriment to the public good nor does it impair the purposes and intent of the By-law.

Pursuant to G.L. c. 40A, §10, the local permit granting authority is vested with the power to grant a variance where it finds that:

owing to circumstances relating to the soil conditions, shape, or topography (emphasis supplied) of [the land in question] 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 . . . 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 . . . by-law. . . .

Insofar as no person has a legal right to a variance, Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555 , 559-560 (1954); Damaskos v. Board of Appeal of Boston, 359 Mass. 55 , 61 (1971); Hunt v. Milton Savings Bank, 2 Mass. App. Ct. 133 , 140 (1974); Gordon v. Zoning Board of Appeals of Lee, 22 Mass. App. Ct. 343 , 349 (1986), they are to be granted sparingly. Damaskos at 61.

A court reviewing an appeal brought pursuant to G.L. c. 40A, §17 hears the matter de novo, renders independent findings of fact and determines 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 applicant for the variance and the Board ordering its grant bear the burden of proving to the reviewing court that all of the aforesaid statutory prerequisites have been met and that such grant is justified. Dion v. Board of Appeals of Waltham, 344 Mass. 547 , 555-556 (1962); Raia v. Board of Appeals of North Reading, 4 Mass. App. Ct. 318 , 321 (1976); Warren v. Zoning Board of Appeals of Amherst, 383 Mass. 1 , 10 (1981); Gordon at 349. The Board's decision will be affirmed where the trial judge hearing the appeal finds that such decision is consistent with the Board's given authority. DiGiovanni v. Board of Appeals of Rockport, 19 Mass. App. Ct. 339 , 349 (1985). Conversely, the decision of the Board will be annulled where the trial judge finds that said decision was based on a legally untenable ground or was arbitrary, unreasonable, whimsical or capricious. Id. citing Pendergast at 557, 559-560. On all of the evidence before the Court, I find and rule, for the reasons enunciated below, that the Board's decision granting the Russos' application for a variance exceeded its authority and, accordingly, must be annulled.

In the instant matter, the Russos' application for a variance is premised on the inadequacy of the width of Locus. The Russos' need for a variance is thus rooted in the nonconforming size of Locus, as opposed to its shape, topography or soil conditions. See McCabe v. Zoning Board of Appeals of Arlington, 10 Mass. 934 (1980); Guiragossian v. Board of Appeals of Watertown, 21 Mass. App. Ct. 111 , 116-117; Gordon at 350-351. Although the Russos argue herein that said deficiency in lot width is attributable to the unusual shape of Locus, I note that by electing to reshape Locus in conjunction with their variance application, the Russos created the very condition of which they now complain. It also merits consideration that, by their own admission, the Russos' land conformed in all respects to the dimensional requirements of the By-law prior to this reconfiguration. Accordingly, applying the well-recognized rule of this Commonwealth that the division of a conforming tract of land into one or two nonconforming lots does not in and of itself amount to substantial hardship especially affecting the nonconforming parcel, the Board's decision cannot stand. Raia at 321-322; Warren at 12. See also Chater v. Board of Appeals of Milton, 348 Mass. 237 , 243-244 (1964).

The Russos also defend the subject grant of the variance on the basis that Locus is unique insofar as it is a much larger parcel than neighboring lots. As I have found sufficient evidence in the record to establish similar area and frontage in neighboring and/or abutting lands, I find the Russos' argument unpersuasive. In addition, I find little merit in the Russos' assertion that "substantial hardship" will result from a reversal of the Board's grant of the variance, insofar as the law clearly states that the prohibition of construction of a residence on a substandard lot does not create "substantial hardship" relative to Locus as required by G.L. c. 40A, §10. Sullivan v. Board of Appeals of Belmont, 346 Mass. 81 , 84 (1963); Garfield v. Board of Appeals of Rockport, 356 Mass. 37 , 41 (1969); Raia at 322; Huntington v. Zoning Board of Appeals of Hadley, 12 Mass. App. Ct. 710 , 715 (1981).

In consideration of the foregoing, I find that the Russos have failed to sustain their burden of proving that, due to circumstances relating to the shape, topography or soil conditions of Locus, they will suffer substantial hardship unless the Board's decision granting a variance is affirmed. I thus rule that the Board's decision was in excess of its given authority and must be and hereby is annulled.

Jugment accordingly.


[Note 1] Unless stated to the contrary, all deeds and plans referred to herein are recorded at this Registry.