JAMES G. COSTELLO and DOROTHY COSTELLO vs. ZONING BOARD OF APPEALS OF THE CITY OF CHELSEA.

Pursuant to the provisions of General Laws chapter 40A, section 17 the plaintiffs, James and Dorothy Costello, appeal from a decision of the Zoning Board of Appeals of the city of Chelsea (the "ZBA") denying them a variance from the provisions of the Chelsea Zoning Ordinance relating to minimum lot size and minimum open space for multi-family homes in order that the plaintiffs may convert their present two-family home to a three-family dwelling. The plaintiffs premise their principal objections to the denial of their application for a variance to relief granted by the ZBA to other applicants in the same neighborhood.

A trial was held at the Land Court on December 12, 1989; since one of the witnesses called by the plaintiff was without the jurisdiction on the first day of trial, the trial was continued to February 15, 1990 at which time, the witness still failing to appear, a capias was issued. The final date of the trial was February 28, 1990. On each scheduled date of the trial a stenographer was appointed to record and transcribe the testimony. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal. The exhibits at the trial primarily consisted of decisions in other cases heard and decided by the Board and were admitted over the objection of the ZBA. The witnesses who testified were Barry M. Sullivan, a surveyor engaged by the plaintiff, the plaintiff James Costello, Henry G. Chatis, a member at the critical time of the defendant Board, Stephen Melesciuc, the Zoning Officer and Senior Building Inspector for the City of Chelsea and Ralph L. Feinberg, the member of the Board of Appeals whose testimony it was difficult to obtain. The parties also agree to the admission into evidence of the deposition of Joseph Carrillo in lieu of his testimony at the trial. The plaintiffs submitted requests both for findings of fact and rulings of law, but I decline to rule on them specifically as I have made my own.

On all the evidence I find and rule as follows:

1. The plaintiffs are the owners of a parcel of land situated on Carroll Street in said Chelsea on which they have a erected a two and a half story wood building containing two living units. The lot contains approximately five thousand square feet and topographically descends approximately nine feet, the back of the lot being that much lower than the property at the street line.

2. The lot has a bituminous drive on each side of the existing house with a grassy front lawn on each side of the front steps leading up to the porch. The rear of the lot also is grass with a wood fence on the northerly boundary line between locus and the adjoining property to the north. A plan prepared by Barry M. Sullivan entitled "Plan of Land in Chelsea, Mass. prepared for James G. Costello and Dorothy Costello" dated December 11, 1989 is marked Exhibit No. 1.

3. In 1985 the defendant ZBA varied the provisions of the Chelsea Zoning Ordinance so that the plaintiffs might construct a two- family house on their lot (Exhibit No. 16). The decision of the ZBA recites that while the required minimum lot frontage of sixty (60) feet could not be met, the existing fifty feet would not cause "any hardship to anyone in the area".

The plaintiff James G. Costello is employed by the Post Office and found it difficult to complete the home which he had constructed within the framework of only one rental apartment. He and his family presently live in the premises and rent one of the units to third parties. He accordingly applied for a variance to permit the conversion of the basement to an additional apartment. This would require a variance of the minimum open space requirement of five hundred (500) square feet per family or fifteen hundred (1500) square feet for a three-family home, the locus having only six hundred (600) square feet but also a variance of the lot size since the addition of a third apartment requires an additional two thousand square feet of land, one thousand feet of which the plaintiffs lack.

The proposed use of the lot as a three-family dwelling is permitted of right in the zoning district provided certain dimensional requirements are met. The defendant Board has granted relief to other parties in the neighborhood from various provisions of the Zoning Ordinance including the minimum open space requirements, the minimum lot size and required parking.

4. One of the abutters complained of the possibility of gasoline fumes from the cars using the driveway, but other than the addition of one or two vehicles from the additional apartment there would be no change in the location of the driveways or the emission of fumes. So far as appears from the record, the location of the building on the lot and the available parking spaces comply in all respects with the provisions of the ordinance.

5. The Board's decision was based in part on the fact that the area was heavily populated, there would be little open space for the tenants to enjoy and the basement apartment would not insure adequate light, air and privacy. The question as to the suitability of a basement for living space was considered by the defendant ZBA, but this was not within its purview. The apartment would comply before a certificate of occupancy was issued with the requirements of the State Building Code and the Zoning Ordinance. However, the other two reasons were unobjectionable.

6. The hardship to the plaintiffs rises from the inadequacy of his income as a federal postal worker and of the rent received by him for the apartment authorized by the defendant ZBA when it previously granted to him a variance. The expense of completing the house which he erected on the lot was greater than anticipated. However, he has gone ahead with renovating to some extent the basement which was an additional expense even though the ZBA had not granted him relief. The topography of the lot is such that under some circumstances, not here present, the locus might thereby qualify for hardship status, but the hardship claimed by the plaintiff is not derived from the lot's topographic features.

7. There were allegations that the opposition to the application for a variance came in part from a relative who is a neighbor and had hoped to inherit the plaintiffs' property. However, there was no direct evidence to sustain that allegation.

General Laws Chapter 40A, section 10 authorizes the permit granting authority to grant "a variance from the terms of the applicable zoning ordinance where such permit granting authority specifically finds 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 provisions of the ordinance . . . will involve substantial hardship, financial or otherwise, to the petitioner . . ., and that desireable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent of purpose of such ordinance . . . "

The plaintiffs contend and have demonstrated that the ZBA has granted variances to others in similar circumstances and indeed in some instances where the required minimum open space or minimum lot size was not met to a greater extent than in the plaintiffs' case. The implication is that the ZBA was biased against the plaintiffs or that external factors, perhaps illegal in nature, influenced the Board's decisions in other instances. No evidence was introduced to buttress the question of bias or illegality. It is true that there have been cases where the ZBA has granted variances in which percentage-wise there was less usable minimum open space or a smaller lot, but there was nothing to show that the Board did not grant relief through the exercise of its best judgment and in accordance with the statutory standards. The Board already had granted a variance to the plaintiffs in its decision dated October 17, 1985 (Exhibit No. 16) and presumably found the necessary statutory conditions to grant the relief initially. There is nothing in the law, however, that requires the Board thereafter to continue to grant relief. The plaintiffs' lot is a small one and to authorize three apartments therein would increase the congested nature of the neighborhood. While others might rule differently, there is nothing to say that the Board did not fulfill its statutory duty, particularly since it is difficult to grant a valid variance in this Commonwealth.

As was said by the Appeals Court in DiGiovanni v. Board of Appeals of Rockport, 19 Mass. App. Ct. 339 (1985) at page 349 in quoting from Vazza Properties, Inc. v. City Council of Woburn, 1 Mass. App. Ct. 308 , 312 (1973), "'the judge's function on appeal was to ascertain whether the reasons given by the . . . [Board] had a substantial basis in fact, or were, on the contrary, mere pretext for arbitrary action or veils for reasons not related to the purposes of the zoning law'". As in DiGiovanni, the evidence at the trial fell short of that required to justify a zoning board of appeals in granting a variance, and as Justice Kass said in the latter decision, "the denial of a variance is in excess of a board's authority only when the variance has been denied solely on a legally untenable ground or when the decision is 'unreasonable, whimsical, capricious or arbitrary' Pendergast v. Board of Appeals of Barnstable, 331 Mass. 557 , 559-560".

I find nothing in the evidence that would support a finding that the Board acted in an unreasonable, whimsical, capricious or arbitrary manner nor solely on a legally untenable ground, and I therefore find and rule that its decision denying the plaintiff's application for a variance must be upheld on appeal. The plaintiffs' appeal therefore is dismissed.

Judgment accordingly.