MISC 128504

April 8, 1989

Essex, ss.



The plaintiffs, Ellen T. Downey, Daniel F. Downey, William E. Kincade, Elaine Kincade, Ronald Campbell, Sally A. Cochens, Marie E. Sauve and Joseph L. Sauve, owners of properties on Ryan Road and Western Avenue in Gloucester, in the County of Essex, appeal from a decision of the Gloucester Zoning Board of Appeals ("ZBA") granting to Eleanor H. S. Kirk a variance to construct a single family residence on the premises now known as 4 Ryan Road in said Gloucester.

A trial was held at the Land Court on October 27, 1988 at which the testimony was electronically recorded and now has been transcribed. All exhibits introduced into evidence, of which there were eleven, some of which were of multiple parts, are incorporated herein for the purpose of any appeal. At the trial James W. Kirk, Jr., the son of the defendant Eleanor H. S. Kirk and a practicing attorney, Robert McLachlan, a real estate salesman familiar with the Gloucester real estate market, and Virginia Bergmann, a member of the defendant Zoning Board of Appeals, testified for the defendants. The plaintiffs' witnesses were the plaintiffs Daniel F. Downey and his wife, Ellen T. Downey.

On all the evidence I find and rule as follows:

1. The Gloucester Zoning Ordinance now in effect (Exhibit No. 3) requires in the neighborhood in question, which is situated in an R-3 District, that a lot have a minimum lot area of 10,000 square feet, a minimum lot width of 80 feet and a minimum lot frontage of 65 feet for a single family residence. This Ordinance was adopted on April 17, 1969 and became effective on April 27 of that year. The previous Zoning Ordinance (Exhibit No. 2) which was adopted on November 30, 1927, with revisions to October 1, 1960, required a lot area of 10,000 square feet for each "one-family house", had provisions for minimum frontage and width requirements, the latter being less than the former in a single residence district A, but had no dimensional requirements in other residential districts other than for height not here in issue.

2. There was no evidence before the Court as to the minimum requirements in an R-3 District for the period between October 1, 1960 and April 27, 1969.

3. The land of the defendant Kirk and of at least four of the plaintiffs are shown on a subdivision plan entitled "Subdivision Plan in Gloucester, Owner & Developer North Shore Land, Inc." dated March 28, 1966 by Essex Survey Service and recorded with Essex South District Deeds on September 21, 1966 in Plan Book 107 as Plan 65 (the "Plan"). The land owned by the defendant Kirk was Lot 27 on the plan, that owned by the defendants Downey is Lot 25, and by the defendants Kincade, Lot 26. Of the 27 lots shown on the plan all but one, that owned by Mrs. Kirk, have been built upon. Only eight of such lots exceeded the area of Lot 27 which has 15,000 square feet as does Lot 20. The Downey lot has only 10,142 square feet and the Kincade lot 10,046 square feet. Several other lots on the Plan have the same frontage as the Kirk lot, but because they are not a perfect rectangle they do not raise the unique question presented here. Only the locus appears to have the zoning problem, even though it is a more usual shape than others on the Plan.

4. The configuration of Lot 27 is such that the width of the lot both at the required setback line or at the actual building line (the ordinance being unclear as to what is intended) is 15 feet, rather than the required distance of 80 feet. The lot conforms with all other requirements of the Zoning Ordinance in that it exceeds minimum lot frontage and lot size standards.

5. The defendant Kirk's husband was a busy trial attorney who died suddenly of a massive coronary attack on August 28, 1974. At the time of his death he had 500 personal liability cases in ligitation. Mr. Kirk Sr. had purchased Lot 27 from another attorney who referred many of his cases to him, one James McCaffrey. The Kirks lived in Winchester where Mrs. Kirk is still a resident, had a home on Cape Cod, and wanted to build another residence in Gloucester so that Mr. Kirk's travel during trials would be minimized. With her husband's death, Mrs. Kirk was immobilized having been devasted by her loss. Her son moved home in 1975 and stayed with her until nine or ten years later. In the mid-80's Mrs. Kirk decided that she wished to do something with her Gloucester property, either build upon it or sell it.

6. A decision was made to list the property with a real estate broker, percolation tests were taken and an offer contingent upon zoning and the septic system design ultimately received. It was only at this time that Mrs. Kirk realized that the Zoning Ordinance now required a width of 80 feet which her lot lacked. A petition was filed with the ZBA which sought to vary the provisions of the Zoning Ordinance insofar as the required lot width minimum was concerned.

7. The hearing held by the ZBA commenced at 7:35 P.M. on May 12, 1988 at which James W. Kirk, Jr., as attorney for his mother, described the history of the land. The ZBA decided to make another site visit to the locus and continued the hearing to May 26, 1988 at one or both hearings certain abutters testified in opposition to the petition and cited their concerns as water pressure, drainage, congestion, privacy of abutters and fire safety. There was written opposition as well. After the conclusion of the hearing the Board voted to grant a variance of five feet in lot width with three members voting in favor and none opposed and made the statutory findings in accordance with the provisions of G.L. c. 40A, §10.

8. The locus presently is overgrown and accordingly provides screening for the abutting lots, particularly from the state highway which is shown as Western Avenue on the Plan. Over the years, however, contractors' rubble and the like have been discarded on the property and accordingly its attractiveness has been masked. Its appearance and the neighborhood would be improved by the clearance of the locus and the construction of a single family residence thereon.

9. There was evidence at the trial that at today's real estate values and with the variance, the locus is worth $80,000 to $90,000 and that without a variance it was difficult to put a value on it as the witness was unable to conceive any use for it. At best the only market for it might be to the abutters. On this basis the most that Mr. Kirk might realize might be $20,000, but the more likely purchase price would be $10,000 to $15,000. The real estate salesman testified that he had never sold a lot which was restricted against building, and he did not know who would want it. In his opinion while such a lot was not totally worthless, it almost was.

10. The member of the ZBA who testified at the trial stated that the Board concluded that a true hardship existed in the present case in view of the size of the lot in question compared to other lots in the neighborhood on which houses had been built, the minimal variance requested, the configuration of the lot and the economic realities of use of the premises. Conditions endemic to Gloucester generally, such as water pressure, were given no weight.

11. It was the Board's consensus that the neighborhood would be enhanced by the removal of the rubble, the builders' remains from other properties, and the overgrown vegetation.

12. Daniel F. Downey, one of the plaintiffs, owns Lot 24 which abuts the locus and has received awards from the City for the beautification of his property. While he is a physicist and a consultant for the design of cooling systems, gardening is his passion. He testified that the grade dropped from his property to the locus and then to the corner lot, and he was concerned about the effect on the drainage of his premises from the construction of a house on an adjoining lot. While removal of some of the vegetation on the locus might cause the water to drain more quickly or affect the lot adjoining it on the opposite side from Mr. Downey, it is difficult to understand how he would be affected thereby, particularly in light of the minor nature of the variance. He was unable to attend the first hearing although his wife was present and spoke. He did attend the second hearing at which he was not allowed to speak, as his five-page letter had been received.

13. Mrs. Downey testified that the growth on the locus shields the view from her property of two houses on Western Avenue affords her privacy from neighboring properties. She also testified that runoff from the neighborhood collected at the bus stop on Western Avenue and constituted a dangerous condition for children.

The first sentence of the fourth paragraph of G.L. c. 40A, §6 provides that "[a]ny increase in . . . width . . . shall not apply to a lot for single and two-family residential use which at the time of recording or endorsement, whichever occurs sooner was not held in common ownership with any adjoining land, conformed to then existing requirements and had less than the proposed requirement but at least five thousand square feet of area and fifty feet of frontage." It would appear from a comparison of the two Gloucester Zoning Ordinances that the applicant for a variance in this case might well have been entitled as a matter of right to build upon the lot in question. However, there is no evidence before the Court as to when Lot 27 was severed from the common ownership of the adjoining properties nor when the width requirement was first introduced in the zoning ordinance; it is therefore, on this record, impossible to determine whether the now famous first sentence of the fourth paragraph of this section affords relief without regard to the question of the variance. The sentence, however, makes perfectly clear the legislative purpose in enacting it, and the General Court's intention that the owners of existing lots be protected in cases like the present.

There also is an interesting question which might have been presented pursuant to the provisions of G.L. c. 240, §14A, as to the validity of a provision in zoning ordinance where the required minimum frontage is less than the required minimum width and thus results in a possible lot "with a shape of a convex vase". Shafer v. Zoning Board of Appeals of Scituate, 24 Mass. App. Ct. 966 , 967 (1987). The Supreme Judicial Court has only upheld to date minimum lot areas and frontage requirements, Simon v. Needham, 311 Mass. 560 (1942); Aronson v. Sharon, 346 Mass. 598 (1964); Wilson v. Sherborn, 3 Mass. App. Ct. 237 (1975) and MacNeil v. Avon, 386 Mass. 339 (1982), and as applied in this case there would be a telling argument if the variance had not been granted against the validity of the present provision of the Ordinance. This is so because there would seem to be no rational basis for requiring the width of the lot to be wider than the minimum frontage requirements. It is clear, of course, that a requirement that it not be less would guard against misshapen lots. The defendant did not raise this matter in her answer by way of counterclaim or otherwise so I have not formally addressed it.

We turn now to the question of the variance. General Laws c. 40A, §10 provides as follows:

The permit granting authority shall have the power . . . to grant upon appeal or upon petition with respect to particular land or structures 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 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 or appellant, and that desirable 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.

The variance which the landowner sought and the ZBA granted was of a minimal nature. The locus is the only unbuilt upon lot on the Plan, and it is the only one which appears to have the problem. Conversely, it is of a conventional shape, and it is significantly larger than most of the other properties on the Plan. The adverse effects which the plaintiffs foresee from the construction of a home on Lot 27 are due not to the variance in the width requirements, but to the building of anything on lot even though locus exceeds their properties in size.

The change in zoning and the unusual provision of the ordinance, if not varied, would involve substantial financial hardship to Mrs. Kirk. This is not a problem of her own making. She was not the developer nor did she convey out any portion of her lot. For this reason the present case is distinguishable from Shafer, supra, which it otherwise resembles factually and from Gordon v. Zoning Board of Appeals of Lee, 22 Mass. App. Ct. 343 (1986).

In the present case, so far as appears from this record, the lot when the subdivision plan was approved by the Planning Board complied in all respects with the then existing Zoning By-law, and it was only through the passage of time that the lot became non-conforming. If the abutters were successful in attacking the variance granted by the ZBA there would be no other use possible of locus since it was designed only for a residential home site. See Paulding v. Bruins, 18 Mass. App. Ct. 707 (1984). It is possible that the lot might be sold to abutters, but it hardly would appear equitable to allow abutters to profit from their opposition to the use of a larger lot by the owner thereof.

The plaintiffs in this proceeding have complained about imagined ill effects of the construction of a single family home on the locus, but all their lots had been built upon and the problems which they cite of traffic, water pressure and the like are due in part to their own use of their properties. Moreover, they have no right to expect their properties to be screened by the locus since there is no easement of any kind affecting locus as the servient tenement for the benefit of the adjoining properties. See von Henneberg v. Generazio, 402 Mass. 519 (1989).

On all the evidence I therefore find and rule that the defendant Kirk is entitled to a variance of five feet in the required minimum width of Lot 27 as shown on the plan, that all other applicable provisions of the Zoning Ordinance including the minimum side and rear yard requirements are to be met, that since, as specifically found herein, there are special circumstances affecting the locus but not affecting generally the zoning district in which it is located, a literal enforcement of the Zoning Ordinance would involve a substantial financial hardship to the land owner and desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent and purpose of the Ordinance, and that the condition as to the recording of the decision of the Zoning Board of Appeals is to be complied with.

Judgment accordingly.