This is an appeal from a determination by the Town of North Andover Building Inspector that a building on the Defendants McAloons' lot is in compliance with the North Andover Zoning By-law ("By-law").
The Defendants McAloon are the owners of a lot measuring 50' x 100' (the "Lot") located on the southerly side of Autran Avenue in North Andover. Zoning requirements in this area require 12,500 square feet in area and 100 feet in frontage. The parties agree that this lot does not qualify for the exemption for single family dwellings under G.L. c. 40A, §6. The Defendants McAloon have moved for summary judgment in this action.
This matter came on to be argued on September 5, 1989. After considering arguments of counsel, memoranda, pleadings and documents, I find and rule that there is no genuine issue of material fact, and that the matter is ripe for summary judgment pursuant to Mass. R. Civ. P. 56. Community National Bank v. Dawes, 369 Mass. 550 , 559 (1976).
I find the following facts to be material and uncontested:
1. On July 22, 1985, said Defendants' predecessor in title applied for a zoning variance to construct a 30' x 28' building on the Lot. Paragraph 4 of the application reads:
4. Size of proposed building: 30' front; 28' feet deep;
Paragraph 7 of the application reads:
7. Description of relief sought on this petition Variance as to Lot Area, Street Frontage, and Side Yard Setback.
(Words underlined were filled in by the petitioners.)
2. On August 15, 1985, the Zoning Board of Appeals of North Andover ("Board") voted as follows to grant the variance:
. . . to grant variance subject to the following:
. . . Limit west side setback to 15 feet, rear to 25 feet . . . grant lot size 5,000 feet, easterly 10 feet.
3. The notice of variance filed with the Town Clerk the following day states in part:
Referring to the above petition for a variance from the requirements of the Zoning Bylaw Section 7, Paragraph 7.1, 7.2, 7.3 and Table 2 so as to permit construction of 30' x 28', two story residential dwelling.
(Words underlined are those of the Board. )
4. This matter was duly appealed by the Plaintiffs herein. Prior to a hearing thereon, the matter was resolved and the Plaintiffs' appeal voluntarily dismissed.
5. Subsequent thereto, the Defendants McAloon acquired the Lot and commenced construction of a dwelling, the dimensions of which were approximately 30' x 44'.
6. The Plaintiffs seek enforcement of the By-law, alleging that the variance granted was for a residence measuring 30' x 28' and any measurements in excess thereof are in violation of the By-law. Both the Building Inspector and the Board have held that as long as the setback and side yard measurements meet those of the variance, the building is in compliance. The Plaintiffs maintain that even if this is correct, the building is still in violation. I do not, however, reach this argument for reasons stated below.
There is no question that the variance was granted, and as granted is valid. Even if as issued it may not withstand an appeal, the appeal period has long passed and it cannot be collaterally attacked.
The petitioners sought a variance from various sections of the By-law, one of which was to construct a 30' x 28' residence on a 5,000 square foot lot. The variance was granted, along with necessary variances for rear and side yards. Obviously, if a structure is built with the yard limitation, it would greatly exceed 30' x 28'. If one accepts the interpretation of the Board, there would appear to be an inconsistency between what was granted and what was petitioned for. This inconsistency disappears if the variance is read as granting the right to construct a 30' x 28' residence within the yard limitations as stated. When one seeks a variance, it must be for some specific use, as in this case, for a 30' x 28' residence. One may not seek a general variance for a structure of unspecified size or use on a substandard lot. To hold otherwise would recognize a blanket authority in a Board of Appeals to grant a variance in excess of the petition and also in excess of what was presumably described in the notice to the public.
In consideration of the foregoing, I grant summary judgment to the Plaintiffs and find that the building of the Defendants McAloon is in excess of the August 15, 1985 variance and in violation of the North Andover Zoning By-law.
By the Court