WARDNER E. RANDOLPH, et. al., v. STEPHEN BERUBE, et. al.

This action was brought by the plaintiff, [Note 1] Wardner E. Randolph, under G.L. c. 40A, § 17, seeking an annulment of two Decisions of the Board of Appeals of the Town Tewksbury, both of which granted a variance to Stephen Berube. The plaintiffs moved for summary judgment on the primary ground that the Decisions at issue were facially invalid. The Court scheduled a hearing on the motion and gave notice of the same to all counsel of record; the plaintiffs' counsel was the only person to appear at the hearing.

In reviewing all matters entitled to conideration under Mass. R. Civ. P. 56, I find the following to be the undisputed facts

1/ The plaintiff, Wardner E. Randolph, is an individual residing at 1484 Andover Street, Tewksbury, Massachusetts.

2/ The plaintiff, Beverly A. Bennett, is an individual residing at 1493 Andover Street, Tewksbury Massachusetts.

3/ The plaintiff, Esther E. Bennett, is an individual residing at 1445 Andover Street, Tewksbury Massachusetts.

4/ The defendant, Stephen Berube (Berube), is an individual residing at 1448 Andover Street, Tewksbury, Massachusetts. Berube owns and resides at the premises which is the subject of this action (the locus).

5/ The defendants, Peter Downing, Patricia DiBiase, Bruce Gordon, Donald McKinely, and Charles Stella are all members of the Board of Appeals of Tewksbury.

6/ The defendants Albert Woodman, Brian O'Connor, Charles Gaffney, William Ritchie, and Mark O'Neill are all associate members of the Board of Appeals of Tewksbury. All of the individuals listed in paragraphs five and six are collectively referred to hereinafter as the "Board".

7/ Berube submitted two applications for a variance to the Board. One to subdivide the locus, numbered 88-l0AA by the Board, and one to construct a single family residence on one of the subdivided lots on the locus, numbered 88-l0BB by the Board. (the applications)

8/ On October 27, 1988, the Board held a hearing on both applications. At that hearing, the Board voted to allow both applications and to grant the two requested variances. The Board issued two undated Decisions granting the requested variances. (the Decisions) On January 11, 1989, the Board filed the two Decisions with the Town Clerk's Office.

9/ The reasons set out in the Board's Decisions for the grant of the variances, for applications 88-l0AA and 88-l0BB, were both the same, and were as follows

The Board has determined that special conditions exist that effect (sic) the property in question and that literal enforcement of the By-Law would cause substantial hardship to the petitioner.

The Board has also determined that granting the variance will be in harmony with the intent and purpose of the By-Law without in any way impairing the status of the neighborhood.

10/ Wardner E. Randolph, Beverly A. Bennett, and Esther E. Bennett all reside within 300 feet of the locus and are persons aggrieved by the Decisions.

11/ None of the defendants have filed an answer or any responsive pleading in this case; nor have they filed any affidavits, briefs or memoranda in this case.

In reviewing the complaint as amended, there being no other pleadings, depositions, answers to interrogatories, or affidavits on file, I rule that, pursuant to Mass. R. Civ. P. 56, the plaintiffs are entitled to a judgment as a matter of law. Community National Bank v. Dawes, 369 Mass. 550 , 553 (1976).

The sole issue before me on this motion for summary judgment is whether the two Decisions at issue are invalid on their face, and if so, should they therefore be annulled. For the reasons stated hereinafter, I rule that both Decisions are invalid on their face, and therefore, shall be annulled.

General Laws 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 necessary 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.

G.L. c. 40A, § 10.

The Decisions at issue herein state that

The Board has determined that special conditions exist that effect (sic) the property in question and that literal enforcement of the By-Law would cause substantial hardship to the petitioner.

The Board has also determined that granting the variance will be in harmony with the intent and purpose of the By-Law without in any way impairing the status of the neighborhood.

The above referenced statement clearly fails to address all of the required findings for the grant of a variance; and of those required findings which are addressed, the findings only parrot the language of the statute in a vague manner. The Decisions are invalid on their face, and therefore, they may be annulled without reaching the merits of the case. Simone v. Board of Appeals of Haverhill, 6 Mass. App. Ct. 601 , 604 (1978).

Judgment to enter accordingly.