MISC 130546

February 7, 1990

Norfolk, ss.



By Miscellaneous Case No. 130546, which was filed on November 9, 1988, Webster A. and Anne K. Collins ("Plaintiffs"), [Note 1] appeal, pursuant to G.L. 40A, §17, the decision of the Defendant, Board of Appeals of the Town of Milton ("Board"), granting a variance to the Defendants, Peter H. and Harriet D. Dragonas (referred to collectively as the "Dragonases"), for the construction of a single­family dwelling on a certain parcel of land owned by them, located on Harland Street in Milton.

The matter proceeded to trial on November 14, 1989, at which time the case was submitted on an Agreed Statement of Facts (referenced herein as Exhibits No. lA through lG) and oral arguments of counsel. These proceedings were recorded and transcribed by a court-appointed reporter. A total of fifteen exhibits, all of which are incorporated herein for purposes of any appeal, were introduced and accepted into evidence. At the close of the Defendants' case, the Plaintiffs brought a motion for a directed verdict.

On all of the evidence before the Court, I find the following facts to be most pertinent hereto:

1. By deed from one Mary M. Chatillon, dated May 26, 1972, recorded with the Norfolk County Registry District of the Land Court (Exhibit No . lC), the Dragonases acquired title to a parcel of land located on Harland Street in Milton, shown as Lot No. 10 on Land Court Plan No. 2636-I, dated November 9, 1964 (Exhibit No. lB). This deed provided that Lot No. 10 "is subject ... to the restrictions as set forth in Document No. 217638 [Exhibit No. lA], expiring on June 15, 1990", which restrictions read as follows:

No building or structure shall be erected, placed or allowed to remain on the ... premises until the plans and location of the same shall have been approved in writing by the Grantors or by those to whom this right may hereafter be specifically assigned of record. No more than two single-family dwelling houses, with the usual appurtenances, shall be constructed, placed or allowed to remain on said premises.

2. In October of 1976, the Dragonases applied for and were granted, the Milton Planning Board's endorsement of a plan, "approval under the Subdivision Control Law not required". This plan, filed with the Land Court as Land Court Plan No. 2636-J, dated April 19, 1976 (Exhibit No. 1D), shows the division of the aforesaid Lot No. 10 into two abutting parcels of land identified thereupon as Lot No. 12, containing 153.24 feet of frontage on Harland Street, and Lot No. 13, containing 150.00 feet of frontage on Harland Street.

3. At a town meeting held in March of 1977, the Town of Milton amended the frontage dimensional requirement set forth in Chapter 10, Section I(A) (7) of its General Zoning By-laws ("By-law") (Exhibit No. 3). This Amendment, which affects both Lot No. 12 and Lot No. 13, reads as underlined below:

Frontage - Frontage of a lot is the distance measured in a straight line between the points where the side boundary lines of the lot intersect the side line of the street which provides access to the lot. At least 80% of this distance between sidelines measured parallel to the aforementioned straight line must be maintained without interruption for a distance of at least 75% of the required frontage. (See By-law, Chapter 10, Section I (A) ( 7 )).

Lot No. 12 presently conforms with this frontage requirement, however, under the zoning freeze protection afforded such lots under G.L. c.40A, §6, [Note 2] Lot No. 13 was deemed to be in conformance therewith for a period of only five years, said period having expired in March of 1982.

4. The Dragonases retained ownership of Lot No. 12 and Lot No. 13, until conveying the former parcel to one Alexis L. Belash, the Plaintiffs' predecessor in title, in June of 1978 (See Exhibit No. 15). At present, the Plaintiffs reside on Lot No. 12, which property is known as and numbered 533 Harland Street. Record title to this parcel of land stands in the name of the Plaintiff, Anne K. Collins.

5. At the time Lot No. 12 was conveyed to the Plaintiffs' predecessor in title, said parcel was improved with a house and a garage. Lot No. 13, however, was and still remains unimproved, said condition being attributed primarily to the aforementioned deed restriction (See Finding No. 1).

6. Prior to March of 1988, Lot No. 13 was situated in the "Residence A" zoning district. Prior to this time, the minimum lot size in this district was 40,000 square feet of land, with a minimum lot frontage requirement of 150 feet, said frontage requirement being in addition to that set forth in Chapter 10, Section I (A) (7) of the By-law.

7. Since March of 1988, Lot No. 13 has been situated in the "Residence AA" zoning district, wherein the minimum lot size is 80,000 square feet and the minimum lot frontage is 150 feet, said frontage requirement also being in addition to that set forth in Chapter 10, Section I(A) (7) of the By-law.

8. On July 19, 1988, the Dragonases applied to the Board for a variance from the terms of Chapter 10, Section I(A) (7), the frontage dimensional requirement, so as to permit the construction of a single-family dwelling on Lot No. 13. A public hearirig on their application was held thereafter and, on October 24, 1988, the Board issued its decision to grant the variance, subject to certain conditions (See Exhibit No. lG).

Under G.L. c. 40A, §10, the Board may grant a variance where it specifically finds as follows:

... that owing to circumstances relating to the soil conditions, shape, or topography of such land ... 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.

No landowner possesses a legal right to a variance, Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555 , 559-560 (1954); 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), and they are to be granted sparingly. Damaskos at 61. In an appeal of a grant of a variance brought pursuant to G.L. c. 40A, §17, the reviewing court hears the matter de novo, makes independent findings of fact and determines the legal validity of the Board's decision on the facts so found. Kirkwood v. Board of Appeals of Rockport, 17 Mass. App. Ct. 423 , 427 (1984); Gordon at 348. The burden of proving that the aforesaid statutory prerequisites for the grant of a variance have been satisfied, and that the grant of the variance is justified, rests upon the applicant therefor and the Board ordering its issuance. 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. Insofar as the three specific prerequisites set forth in G.L. c.40A, §10 are conjunctive, not distinctive, a failure to establish any one of them is fatal. Blackman v. Board of Appeals of Barnstable, 334 Mass. 446 , 450 (1956); Kirkwood at 428. The Board's decision to grant the variance will only be annulled where the reviewing Court finds that said decision was arbitrary, unreasonable, whimsical, capricious or based on some legally untenable ground. DiGiovanni v. Board of Appeals of Rockport, 19 Mass. App. Ct. 339 , 349 (1985) citing Pendergast at 557, 559-560.

In this case, the first precondition to the Board's grant of a variance, pursuant to G.L. c.40A, §10, is a finding that the lot's dimensional nonconformity under the By-law is due to "circumstances relating to the soil conditions, shape or topography" of such land. See Dion at 551; Josephs v. Board of Appeals of Brookline, 362 Mass. 290 , 293 (1972). In the matter presented herein for review, the Dragonases' need for a variance authorizing the construction of a single-family residence on Lot No. 13 is based on the lot's deficiency in frontage, under Chapter 10, Section I(A) (7) of the Milton Zoning By-law. Insofar as a lack of requisite frontage is a dimensional problem not synonymous with lot shape, I decline to find that the Dragonases' application for a variance was premised on unique conditions affecting the shape, topography or soil conditions of Lot No. 13. McCabe v. Board of Appeals of Arlington, 10 Mass. App. Ct. 934 (1980); Guiragossian at 116-117; Gordon at 350-351.

The Dragonases and the Board defend the subject variance on the ground that, unlike other lots in the area, Lot No. 13 bears the unusual shape of a "pork chop lot". See Paulding v. Bruins, 18 Mass. App. Ct. 707 , 708 (1984). Although evidence introduced at trial does reveal that the shape of Lot No. 13 may be described as "pork chop" in nature, and assuming arguendo that the lot's dimensional nonconformity is attributable to such shape and not size, the foregoing facts illustrate that the Dragonases created the very condition for which they now seek a variance. Lot No. 13 came into being in November of 1976, at which time the Dragonases divided a larger parcel of land owned by them into two individual lots, Lots No. 12 and 13. In 1976, these two lots were dimensionally conforming parcels under the By-law. Lots No. 12 and 13 remained under the common ownership of the Dragonases until Lot No. 12 was conveyed to the Plaintiffs' predecessor in title in June of 1978. Thus, at the time of the March 1977 Amendment to Chapter 10, Section I(A) (7) of the By-law, which Amendment, as of the expiration of the aforesaid five year zoning freeze period (See Finding No. 3), rendered Lot No. 13 in noncompliance with stated frontage requirements, the Dragonases owned both parcels of land. Accordingly, in 1978, the Dragonases had two alternatives, both of which would have resulted in compliance with applicable zoning requirements and eliminated their present situation. They could have retained the two parcels as a large tract of land sufficient for zoning purposes under the By-law, or they could have retained only the conforming parcel, Lot No. 12, and sold off the other. Further, by electing to divide this large, conformng tract of land into two lots, one of which became nonconforming under the By-law in 1982, the Dragonases were not presented with any "substantial hardship" especially affecting this nonconforming lot. Chater v. Board of Appeals of Milton, 348 Mass. 237 , 243-244 (1964); Raia at 321-322; Warren at 12; Arrigo v. Planning Board of Franklin, 12 Mass. App. Ct. 802 , 803-804. Moreover, I note that "substantial hardship", as required by G.L. c.40A, §10, will not result from the prevention of a potentially advantageous use of ones' land, here specifically, the construction of a residence on a substandard lot. Bruzzese v. Board of Appeals of Hingham, 343 Mass. 421 , 424 (1962); 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); Kirkwood at 429.

In consideration of the foregoing, I rule that the decision of the Board of Appeals of Milton, dated October 24, 1988, granting the Dragonases' application for a variance authorizing the construction of a single-family residence on a parcel of land known as Lot No. 13 on Harland Street in Milton, which parcel fails to comply with the frontage requirements of Chapter 10, Section I(A) (7) of the By-law, as amended, exceeded its authority and must be annulled. The Plaintiffs' motion for a directed verdict is allowed.

Judgment accordingly.


[Note 1] On November 25, 1988, the complaint in Miscellaneous Case No. 130546 was amended to name Anne K. Collins as a Plaintiff.

[Note 2] G.L. c.40A, §6 provides in pertinent part, as follows:

... An increase in ... frontage ... or depth requirement of a zoning ... by-law shall not apply for a period of five years from its effective date ... to a lot for single family residential use, provided the plan for such lot was recorded or endorsed and such lot was held in common ownership with an adjoining land and conformed to the existing zoning requirements as of January first, nineteen hundred and seventy-six, and had less ... frontage ... or depth requirement than the new effective zoning requirements, but contained at least [7,500] square feet of area and (75] feet of frontage, and provided that said five year does not commence prior to January first, nineteen hundred and seventy-six ...