This cause came on to be heard on the plaintiffs' motion for summary judgment and was argued by counsel. This case involves an appeal pursuant to G.L. c.40A, §17 from the decision of the defendant Board of Appeals of the Town of Arlington ("the Board") granting a variance from the dimensional requirements of the Town's zoning by-law to the defendants, Caesar and Jean Bartone ("the Bortones"). The Bortones petitioned the Board for a variance in order to construct a house on an undersized parcel of land ("lot 37") which they own in the Town of Arlington.
Lot 37 is located in an R-2 (Two-Family) District, which district has minimum lot requirements of 6,000 square feet of area and 60 feet of frontage. Section 6.06 of the Town of Arlington zoning by-law provides grandfather protection for a lot which was shown as a separate parcel on a subdivision plan or on a plan or deed recorded before the passage of the Town's zoning by-law in 1924, provided that the lot has at least 5,000 square feet of area and 50 feet of frontage and meets certain other requirements not at issue here. Lot 37 does not meet the zoning requirements for the R-2 District, nor is it afforded grandfather protection by section 6.06 because it contains only 3,644 square feet of area and 40 feet of frontage. The variance was granted by the Board by decision dated March 13, 1989.
Counsel for the Board agreed at oral argument that there are no genuine issues of material fact in dispute. The Board, however, argues that summary judgment is not appropriate in this case because G.L. c. 40A, §17 requires that this Court make a de novo determination of facts in this matter.
The de novo standard of review does not eliminate the power of this Court to grant summary judgment in an appeal brought pursuant to G.L. c. 40A, §17 where no genuine issue of material fact exists and a party is entitled to judgment as a matter of law. While recognizing that "summary judgment will in many instances be an inappropriate vehicle for disposing of zoning cases due to the often complex and fairly disputable nature of the underlying facts", summary judgment is appropriate where, as here, no legitimate purpose will be served by further trial proceedings. Framingham Clinic, Inc. v. Zoning Board of Appeals of Framingham, 382 Mass. 283 , 299 (1981).
In reviewing all those matters entitled to consideration under Mass. R. Civ. P. 56, I rule that there are no genuine issues of material fact and therefore, the case is ripe for summary judgment. Community National Bank v. Dawes, 369 Mass. 550 , 553 (1976). I further rule that the decision of the Board granting the variance is invalid on its face because the Board failed to make the required statutory findings. G.L. c.40A, §15 requires that, when a board grants a variance, it must issue a decision "setting forth clearly the reason or reasons for its decision. . ." The specific findings required by G.L. c.40A, §10 to support the grant of a variance are 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 provision 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.
In its decision, the Board found that
the lot sits near the top of a very steep slope and is sloped itself. The steepness of the slope and the slope itself are topographical features which especially affect this lot but do not affect generally the zoning district in which the land is located.
Although the Board found the slope steepness to be a topographical feature of some uniqueness, the Board did not find that the slope prevented the building of a house on the lot. Recently, in a case with similar facts, the Massachusetts Court of Appeals stated
"[t]he hardship in this case is not 'owing to the topography' of the land . . . The hardship arises solely from the fact that the premises are too small to qualify as a buildable lot under the zoning ordinance." Mitchell v. Board of Appeals of Revere, 27 Mass. App. Ct. 1119 (1989). The same is true with respect to lot 37. Under such circumstances, the Board had no authority to grant the variance.
Furthermore, the Board found that the literal enforcement of the by-law would involve "emotional" hardship to the Bortones because they would be unable to fulfill their wish of building a home for their children on the premises. However, the grant of a variance can be based "only upon circumstances which directly affect the real estate and not upon circumstances which cause personal hardship to the owner." Huntington v. Zoning Board of Hadley, 12 Mass. App. Ct. 710 , 715 (1981).
Because these grounds are invalid as a matter of law to support the grant of a variance, the decision granting the variance exceeded the Board's authority and must be annulled. I rule that the plaintiffs' motion for summary judgment be, and hereby is, allowed. I further rule that the Board's decision granting the variance to Caesar and Jean Bertone be, and hereby is, annulled.
Judgment accordingly.
DORIS M. CREMENS, THOMAS W. FALWELL, PHILIP J. McCARTHY, EDWARD T. M. TSOI and BARRY FAULKNER, as the ARLINGTON REDEVELOPMENT BOARD v. JOHN F. DOYLE, ARA DEMURJIAN, ROBERT C. MORAN, JAMES F. BOUDREAU, JR. and ROBERT WELCH as the BOARD OF APPEALS of the TOWN OF ARLINGTON, CAESAR BORTONE and JEAN BORTONE.