PHILIP MANTONI and SUSAN MANTONI vs. WILLIAM JUSSILA, CHRIS HEMEON, ARTHUR SHERMAN, WILLIAM FLYNN, WILLIAM FERREIRA, THOMAS OGBORNE and ROGER PETERSON, as they constitute the BOARD OF APPEALS OF THE TOWN OF HARWICH, and THE TOWN OF HARWICH.

By complaint dated October 6, 1988, and amended on October 27, 1989, Philip and Susan Mantoni ("Plaintiffs") seek judicial review, pursuant to G.L. c. 40A, §17, of a decision of the Defendant, Board of Appeals of the Town of Harwich ("Board"), denying their application for a variance from the side line setback requirements of Section IV B (b) of the Harwich Zoning By-laws ("By-law") (Exhibit No. 7), as such requirements pertain to a retaining wall which they have caused to be constructed on the westerly side of their property at 36 Vacation Lane in Harwich ("Locus"). By this action, the Plaintiffs also seek a declaration that those sections of the By-law which operate to prevent them, and others similarly situated, from having retaining walls on their property are unenforceable under the United States Constitution and the Constitution of the Commonwealth of Massachusetts. The Plaintiffs further seek a determination, under G.L. c. 240, §14A, as to the validity of those sections as has the Board has applied them to Locus.

Insofar as the Plaintiffs' complaint asserts claims as to the constitutionality of certain provisions of the Harwich Zoning By­law, the Attorney General for the Commonwealth of Massachusetts was entitled to notice of the proceedings pursuant to G.L. c. 231A, §8. The record before the Court does not, however, contain any evidence of such compliance on the part of the Plaintiffs. Accordingly, the constitutional claims which are set forth in the Plaintiffs' complaint are dismissed. See Wright v. City of Lawrence, 21 Mass. App. Ct. 343 (1985).

The matter was tried on May 9, 1990, at which time the court appointed a stenographer to record and transcribe the proceedings. Three witnesses offered testimony and seven exhibits were accepted into evidence. One chalk was also presented to assist the Court. The chalk and all of the exhibits are incorporated herein for purposes of any appeal. Prior to the commencement of trial, the Plaintiffs moved for the entry of a default judgment against the Defendants, or alternatively, the entry of a judgment on the pleadings. These motions were denied, with the Defendants being given seven days to file an answer to the Plaintiffs' complaint as amended and, with the proviso that the Plaintiffs would be given an opportunity to answer any new issues raised in said answer. The Defendants filed an answer thereafter on May 11, 1990.

On all of the evidence before the Court, I find the following facts:

1. In 1976, the Plaintiffs purchased Locus, which was at that time a vacant, wooded lot, containing approximately 10,166 square feet of land of substantially the same elevation as adjacent lots.

2. In 1987, the Plaintiffs constructed a single-family residence on Locus, which, as shown on a plan dated November 19, 1987 (Exhibit No. 1), is set back approximately fourteen feet from the easterly lot line and approximately seventeen feet from the westerly lot line. This plan depicts the location and general design of the Plaintiffs' residence, as well as the driveway adjacent thereto. In conjunction with this construction, approximately four feet of fill was added to the lot.

3. In accordance with applicable By-law provisions prohibiting off-street parking, the Plaintiffs created two parking spaces on their driveway. Insofar as the Plaintiffs had added approximately four feet of fill, this driveway runs in an upward slope from Vacation Lane to the westerly side of the Plaintiffs' residence (See Exhibit No. 2A).

4. When construction of their residence had been substantially completed, the Plaintiffs caused a timber retaining wall to be erected less than ten feet from the westerly lot line of Locus (See Exhibits No. 2B and 3). At its highest point, this wall stands approximately two feet in height.

5. Following an abutting neighbor's complaint to the Harwich Building Inspector, the Plaintiffs were informed that the retaining wall was in violation of Section VI, Paragraph D(8) of the By-law, which provides in relevant part as follows:

In any district, any permitted accessory building, structure or use shall conform to the required setbacks for principal structure or use. . . .

6. Section II of the By-law defines the term "structure" as follows:

A combination of materials assembled at a fixed location to give support or shelter such as a building, bridge, trestle, tower, framework, retaining wall (emphasis supplied), tank, tunnel, tent, stadium, pool, reviewing stand, platform, bin or the like.

Although the record is silent as to which zoning district encompasses Locus, all parties hereto agree that, in the zone in which Locus is located, retaining walls, as "structures" under the By-law, must be set back at least ten feet from the property line.

7. In the summer of 1988, the Plaintiff, Philip Mantoni, applied to the Board for a variance from Section IV B (b) of the By-law, which section provides that:

B. APPLICATION: Except as herein provided or as specifically exempted by the Zoning Act, the provisions of this By-law shall apply to the erection, construction, reconstruction, alteration or use of buildings and structures and to the use and creation of lots. As provided herein and in the Zoning act, existing uses and structures lawfully established or constructed, which do not comply with the provisions of this By-law, may continue as non-conforming. Existing lots lawfully laid out by plan or deed, which complied at the time of layout with applicable provisions of Zoning By-laws, if any, may be built upon for single family residential purposes, provided:

b, the buildings to be located thereon are set back at least ten (10) feet from side and rear lot lines, and at least twenty five (25) feet from street to lot lines.

8. On August 31, 1981, the Board held a public hearing on the Plaintiff's variance application, at which time the Board found as follows:

1. The Petitioner was not aware that a retaining wall was a structure and that a variance was needed.

2. A retaining wall was necessary for them to have a driveway abutting their neighbors property.

3. Mr. Arsenault, after receiving a complaint went to the site to look at the wall and informed the Petitioner that he could not do it during the beginning stage of construction.

4. Height far exceeds that at which time it was being built and the retaining walls are right down the property lines which are not allowed in our zoning except by variances (10' setback).

5. There is a problem with runoff of rainwater due to the [4.5'] rise of the land which was not there prior to building the structure.

In accordance with these findings, the Board voted unanimously to deny the Plaintiff's variance application on the grounds that "under State Codes, Section 10, Chapter 40A and the Harwich Zoning By-laws [,] none of the criteria had been met. . . ."

Having dismissed the Plaintiffs' constitutional claims, the remaining issues presented herein for review are whether Section VI, Paragraph D(8) of the Harwich Zoning By-law, which section requires "structures", as defined by Section II, to conform to the required setbacks for principal structures and uses, is valid as applied to the Plaintiffs' retaining wall and, assuming such By-law provision is valid, whether the Harwich Board of Appeals exceeded its authority in denying the Plaintiffs' application for a variance for said retaining wall.

The test for determining the validity of a zoning by-law is whether it furthers any purpose included within the Zoning Act, G.L. c. 40A, §§2 and 3. Fogelman v. Town of Chatham, 15 Mass. App. Ct. 585 , 588 (1983); Moss v. Town of Winchester, 365 Mass. 298 , 299 (1974); Beal v. Building Commissioner of Springfield, 353 Mass. 640 , 643 (1968). Insofar as every presumption is to be indulged in favor of the by-law, 122 Main Street Corporation v. City of Brockton, 323 Mass. 646 , 649 (1949), it will be upheld unless found to be arbitrary and unreasonable, having no substantial relationship to the public health, safety, morals or general welfare. Schertzer v. City of Somerville, 345 Mass. 747 , 751 (1963); MacNeil v. Town of Avon, 386 Mass. 339 , 340 (1982). In cases where the reasonableness of a zoning by-law is fairly debatable, the judgment of the local legislative body which gave it its being will be sustained. Crall v. City of Leominster, 362 Mass. 95 , 101 (1972); Turnpike Realty Company v. Town of Dedham, 362 Mass. 221 , 233 (1972). The petitioner bears the burden of establishing to the contrary. Sturges v. Town of Chilmark, 380 Mass. 246 , 256 (1980). As a practical matter, however, the municipality is expected to bring forward some indication that the zoning provision has some reasonable prospect of a tangible benefit to the community. Sturges at 257 citing 122 Main Street Corporation at 651.

Some of the purposes for which zoning may be established include securing safety from fire and other dangers, lessening congestion in the streets, preventing overcrowding of land, providing adequate light and air, avoiding undue concentration of population and facilitating provisions for water, sewerage and other public requirements, Cross v. Planning Board of Chelmsford, 345 Mass. 618 , 621 (1963); MacNeil at 341. Viewing all of the evidence before the Court, and noting the presumption of validity which must be afforded by-law provisions, I find that the Plaintiffs have failed to sustain their heavy burden of proving that Section II and Section VI, Paragraph D(8) of the Harwich Zoning By-law advance no legitimate zoning objective and hence are invalid as applied to their property. To the contrary, I find that, at the very least, the reasonableness of these provisions is "fairly debatable" insofar as their cumulative effect is to advance the lawful zoning purpose of preventing the overcrowding of land in Harwich. Accordingly, I rule that, under applicable principles of law, these provisions must be sustained.

Having ruled that the subject By-law provisions are valid, the sole issue remaining for consideration is whether the Defendant Board exceeded its authority in denying the Plaintiffs' application for a variance from the setback requirements of Section IV B (b) of the By-law.

General Laws Chapter 40A, Section 10 authorizes municipal zoning boards to grant variances where:

1. 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;

2. a literal enforcement of the provisions of the . . . by-law would involve substantial hardship, financial or otherwise, to the petitioner . . .; and

3. desirable relief may be granted without substantially nullifying or substantially derogating from the intent or purpose of such . . . by-law.

These three prerequisites are conjunctive, not distinctive, so a failure to establish any one of them will be fatal to the petitioner. Blackman v. Board of Appeals of Barnstable, 334 Mass. 446 , 450 (1956); Kirkwood v. Board of Appeals of Rockport, 17 Mass. App. Ct. 423 , 427 (1984). Further, if the Board finds that all of the conditions set forth in the statute are satisfied, it may, in its discretion, grant the variance, but even under those circumstances, no landowner holds a legal right to a variance. Bruzzese v. Board of Appeals of Hingham, 343 Mass. 421 , 423 (1962); Damaskos v. Board of Appeals of Boston, 359 Mass. 55 , 61 (1971); Guiragossian v. Board of Appeals of Watertown, 21 Mass. App. Ct. 111 , 115 (1985); Gordon v. Zoning Board of Appeals of Lee, 22 Mass. App. Ct. 343 , 349 (1986). Accordingly, variances are to be granted sparingly. Damaskos at 61.

For the Plaintiffs to prevail in this instance, they must prove that, in denying their application for a variance, the Board acted arbitrarily, unreasonably, whimsically or capriciously, or rendered a decision which was based on some legally untenable ground. DiGiovanni v. Board of Appeals of Rockport, 19 Mass. App. Ct. 339 , 349 (1985) citing Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555 , 559-560 (1954). I decline to find that the Plaintiffs have sustained this burden of proof.

In furtherance of the statutory prerequisites that the shape, topography or soil conditions which especially affect the subject land, but which do not affect generally the zoning district in which such property is located, would make a literal enforcement of applicable by-law provisions result in substantial hardship, financial or otherwise, to them, the Plaintiffs cite the following as "conditions" affecting Locus, but not affecting generally other parcels in this zoning district:

1. The property's status, as a pre-existing, nonconforming parcel, which status is attributable to its deficiency in both frontage and area under current zoning provisions;

2. The easterly and westerly side setbacks, as noted above in Finding No. 2, which are in compliance with the By-law's dimensional requirements, but which the Plaintiffs contend "severely limit [their] available options in terms of adequate parking . . ., access to backyard, septic maintenance, access to the side entrance to the dwelling, and driveway location; and

3. The high water table on the property.

As to the Plaintiffs' contention that the dimensional nonconformity of Locus constitutes a unique condition attributable to shape, I note that size and shape are not synonymous for purposes of G.L. c.40A, §10. See McCabe v. Board of Appeals of Arlington, 10 Mass. App. Ct. 934 (1980); Guiragossian at 116-117; Gordon at 349. Even assuming arguendo that the nonconforming dimensions of Locus do amount to a condition attributable to shape, I find that the Plaintiffs have failed to advance sufficient proof that this, or the high water table on Locus, are conditions which, as a general matter, do not affect, or exist on, other parcels in this zoning district. Nonetheless, however, I find that, by their own admissions, the Plaintiffs are able to comply with applicable sections of the By-law by erecting their retaining wall within ten feet of their property line.

The foregoing notwithstanding, I note that the Plaintiffs' current need for the retaining wall, which structure is the subject of the Plaintiffs' variance application, appears to have been prompted by the Plaintiffs' own addition of fill material to Locus during the course of construction thereon. Such self-created hardship does not constitute the hardship contemplated by Section 10. Accordingly, in view of all of the above, I rule that the Board's decision denying the Plaintiffs' variance application must be and hereby is sustained.

In consideration of all of the foregoing, I rule in summary that Sections II and VI, Paragraph D(8), of the Harwich Zoning By­ law are valid insofar as they include retaining walls within the definition of "structures" and require that such structurs conform to the required setbacks for principle structures or uses. Further, I rule that, insofar as the Plaintiffs have failed to fulfill the statutory prerequisites of G.L. c. 40A, §10, the Harwich Board of Appeals did not exceed its authority or abuse its discretion in refusing to grant the Plaintiffs' application for a variance to construct a retaining wall on their property, which wall does not conform to applicable side line setbacks, despite its ability to do so. Nothing herein, however, is to be construed as a prohibition of the Plaintiffs' providing, by appropriate means and in compliance with appropriate By-law provisions, lateral support, other than a retaining wall, to his land.

The Plaintiffs' claims as to the constitutionality of the Harwich Zoning By-law as applied to their land are hereby dismissed for failure to notify the Attorney General for the Commonwealth of Massachusetts of the proceedings, as required by G.L. c. 231A, §8.

Judgment accordingly.