OTIS A. SINNOTT, JR. vs. JOHN J. MAHONEY, JON P. DEVINE, ALFRED W. ALMEIDA AND RICHARD A. HALL, as they are members of the BOARD OF APPEALS FOR THE TOWN OF MARSHFIELD.

The Plaintiff, Otis A. Sinnott, Jr. ("Plaintiff") originally brought this action pursuant to G.L. c. 40A, § 17 appealing a decision of the Defendant, Marshfield Board of Appeals ("Defendant"), denying Plaintiff a variance from the area and frontage requirements of the Marshfield Zoning By-Law ("By-Law").

At trial, with the assent of Defendant, the Court allowed Plaintiff to argue both his G.L. c. 40A, § 17 claim and, in consideration of the case prosecuted by Plaintiff, a claim under G.L. c.240, § 14A with the proviso that Plaintiff file an amended complaint forthwith.

Subsequently, Plaintiff filed an Amended Complaint pursuant to G.L. c. 240, § 14A, seeking an interpretation of Sections 9.01, 9.03, 6.01 and 6.02 of the By-Laws. The Amended Complaint does not contain the appeal under G.L. c. 40A, § 17.

The trial took place on October 16, 1990, at which time the proceedings were transcribed by a court-appointed reporter. Four (4) witnesses testified, nineteen (19) exhibits were introduced into evidence and one chalk was submitted to assist the Court. All of the exhibits and the chalk are incorporated herein by reference for the purpose of an appeal. Both Plaintiff and Defendant submitted Post-Trial Memoranda. After considering the evidence, testimony and pertinent documents, I make the following findings of fact:

1) Plaintiff is the owner of an unimproved parcel of land ("Locus") located on the east side of Ocean Street in Marshfield, shown on Assessor's Map N6 as Block 5, Lot 21 (Exhibit 6) and contains approximately 6,750 square feet.

2) In 1941, the By-Law (Exhibit No. 15) was adopted under which Locus was either unzoned or required to have 5,000 square feet in area and 50 feet in width to be a buildable lot.

3) By deed dated August 22, 1955, and recorded at Book 2446, Page 187 at the Plymouth County Registry of Deeds [Note 1] (Exhibit No. 11) Allston W. Sinnott and Annabel G. Sinnott ("Plaintiff's Predecessors") [Note 2] acquired Locus. At that time they also owned a parcel abutting Locus to the north ("the Adjoining Premises"). The combined area of the two parcels was over 10,000 square feet.

4) In 1956, the By-Law (Exhibit No. 16) was amended to require a lot in the zoning district of Locus to have a minimum of 10,000 square feet of area and 80 feet in frontage for building a dwelling. As of the filing of this case, those requirements remain unchanged (See Sections 6.01 and 6.02 of the By-Laws, Exhibit No. 7).

5) By deed dated March 31, 1966 and Recorded at .Book 3291, Page 76 (Exhibit No. 13), Plaintiff's Predecessors conveyed Locus to Otis A. Sinnott and Hilda S. Shannon as joint tenants, separating Locus and the Adjoining Premises from common ownership.

6) By deed dated September 1, 1987 and recorded at Book 7970, Page 268 (Exhibit No. 1) Otis A. Sinnott and Nina Ann Sinnott conveyed Locus to Plaintiff.

7) On January 16, 1985 the Town of Marshfield Building inspector gave Plaintiff's immediate predecessors a written opinion that Locus did not constitute a buildable lot because it was in an area that was "zoned 10,000 square feet."

8) On or about August 24, 1988, Plaintiff, in consideration of said opinion, applied to Defendant for a variance to build a single family dwelling on Locus (Exhibit No. 2). February 14, 1990, the petition was denied.

9) On or about June 21, 1972, the By-Law was repealed and a new By-Law was enacted. While dimensional and area requirements as to Locus did not change, the following section was included:

Section 9.03 Residential Lot of Record

Any lot lawfully laid out by deed duly recorded, or any lot shown on a recorded plan endorsed by the Planning Board pursuant to Section 81P or 81U of M.G.L. c.41, which complies at the time of such recording with the minimum area, frontage, width, and depth requirements, if any, of the zoning bylaws then in effect may be built upon for residential use provided it has a minimum area of 5,000 square feet with frontage of at least 50 feet and is otherwise in accordance with the provisions of Section 6 of the Zoning Enabling Act (emphasis added).

10) Section 6 of the Zoning Enabling Act states, in pertinent part:

Any increase in area, frontage, width, yard or depth requirements of a zoning ordinance or by-law shall not apply to a lot for single and two-family residential use which at the time of recording or endorsement, whichever occurs sooner was not held in common ownership with any adjoining land, conformed to then existing requirements and had less than the proposed requirement but at least five thousand square feet of area and fifty feet of frontage (emphasis added).

Section 5A of the Act of 1954, the enabling act in affect at the time of the 1966 conveyance contained similar restrictions on "adjoining land" held in common ownership.

Plaintiff's Claim under G.L. c. 240. § 14A

"The primary purpose of G.L. c. 240, § 14A is to provide a procedure for a declaratory judgment that will resolve doubts relating to by-law restrictions or the requirement of a zoning ordinance." Whitinsville Retirement Society, Inc. v. Northbridge, 394 Mass. 757 , 762-763 (1985); Addison-Wesley Publishing Co. v. Reading, 354 Mass. 181 , 184-185 (1968). In the present case, the Court is called on to interpret Section 9.03 of the ByLaws.

For a lot to be governed by Section 9.03, it must be in "accordance with Section 6 of the Zoning Enabling Act." The exception of that Section, presently and in 1966 as noted above, applies and applied only to lots that were not held in common ownership with any adjoining land at the time of a change in area requirements. Here the Locus was held in common with the Adjoining Premises by Plaintiff's Predecessors in 1956, when the By-Laws were amended increasing the minimum area of a buildable lot to 10,000 square feet. Clearly, Section 9.03 is inapplicable in this instance. [Note 3]

"(A) landowner will not be able to create a dimensional nonconforniity if he could have used his adjoining land to avoid or diminish the nonconformity. Planning Board of Norwell v. Serena, 27 Mass. App. Ct. 689 , 690 (1989). Both the By-Laws in 1966, when Locus was separated from the Adjacent Parcel, and the present By­Laws codify this longstanding zoning principle as part of their grandfathering provisions.

Plaintiff's Claim under G. L. c. 40A. § 17

Plaintiff's Amended Complaint contains no appeal under G.L. c. 40A, § 17 from the denial of the variance. Moreover, Plaintiff fails to argue the appeal in his Post-Trial brief. Assuming, for judicial economy, that Plaintiff has not waived his appeal, I find that, he has failed to establish the statutory prerequisites for the grant of a variance.

No landowner possess a legal right to a variance, Pendergast 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 v. Board of Appeals of Boston, 359 Mass. 55 , 61 (1971).

In variance appeals brought pursuant to G.L. c. 40A, § 17, the reviewing court hears the matter de novo, makes independent findings of fact and, on the facts so found, determines the legal validity of the Board's decision. Kirkwood v. Board of Appeals of Rockport, 17 Mass. App. Ct. 423 , 427 (1984); Gordon at 348. Pursuant to G.L. c. 40A, § 10, the applicant for the variance bears the burden of proving as follows:

. . . 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 . . . 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 . . . bylaw.

See also 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. A failure to establish any of the aforesaid statutory prerequisites is fatal to the grant of the variance. Blackman v. Board of Appeals of Barnstable, 334 Mass. 446 , 450 (1956); Kirkwood at 428.

On the facts before the Court, I find that Plaintiff has failed to prove that any hardship he may suffer, in the absence of a variance, is attributable to the soil conditions, shape or topography or Locus or any structure thereon.

Plaintiffs Claim that the By-Laws are Unconstitutionally Applied

Finally, Plaintiff argues in his Post-Trial Brief that the provisions of the By-Laws are unconstitutional as applied to Locus and the governmental intrusion is so great in this case as to amount to a taking. It is well established that for a governmental action to be adjudged a taking it must strip private property "of all practical value to them or to anyone acquiring it, leaving them only with the burden of paying taxes on it." Lovequist v. Conservation Commission of Dennis, 379 Mass. 7 , 20 (1979). Further, in a zoning case, Plaintiff bears the burden of showing that the By-Laws or are unconstitutional. Chaume v. Board of zoning appeals of Fitchburg, 27 Mass. App. Ct. 1135 (1989). As in Chaume, Plaintiff here has not provided the Court with evidence of Locus's past or present fair market value or loss of all practical value and, as in Chaume, Plaintiff has not shown that neighboring lots when combined with Locus would fail to provide Locus with conforming area and frontage. Plaintiff has also failed to raise the issue of constitutionality in either his original or Amended Complaint or at trial. Nor has Plaintiff notified the attorney general as required by G.L. c.231A § 8.

Accordingly I find that

1. The Board of Appeals did not exceed their authority in denying Plaintiff's request for a variance.

2. Sections 6.01, 6.02, 9.01 and 9.03 of the Marshfield Zoning By-Law are valid and under the present circumstances render Plaintiff's lot, referred to herein, unbuildable for residential use.

Judgment Accordingly.