MISC 134782

July 19, 1990

Essex, ss.



The Plaintiffs, Douglas and James DiMento ("the Plaintiffs"), bring this action, pursuant to G.L. c. 40A, §17, seeking judicial review of a decision of the Defendant, Georgetown Board of Appeals ("the Board"), granting use and dimensional variances to the Defendants, Angelo F. and Louise Scala ("the Scalas"), so as to permit them to operate a business use on a parcel of land lying within a residential zoning district, located at West Main Street and Middle Street in Georgetown.

The matter was tried on April 30, 1990, at which time the Court appointed a stenographer to record and transcribe the testimony. Ten (10) witnesses testified and eight (8) exhibits, all of which are incorporated herein for purposes of any appeal, were accepted into evidence. Two (2) chalks were also submitted to assist the Court. At the time of trial, the parties also introduced certain evidentiary stipulations, with references therein to five (5) attached exhibits (Exhibits No. 1 through 5).

On all of the evidence, I find as follows:

1. The Scalas are the owners of a parcel of improved land located at 28 West Main Street in Georgetown, shown as Lot No. 36 on Map 11A of the Georgetown Assessors' Maps ("Map 11A") (Exhibit No. 3). At present, the Scalas operate a business known as Scala's Antiques on this property (See Exhibit No. 6).

2. By Memorandum of Agreement, dated February 14, 1989 ("Agreement") (Exhibit No. 8), the Town of Georgetown, acting through its Board of Selectmen, agreed to sell to the Scalas, for the sum of $175,000.00, the Old Central Fire Station ("Fire Station") and the land adjoining it ("Locus") (See Exhibit No. 6), which property appears as Lot No. 37 on Map 11A and abuts the southwesterly side of Scalas' property. The Scalas' obligation to purchase Locus is contingent on, among other things, their ability to obtain a use variance from the Board.

3. The Plaintiffs own an improved parcel of land located at 12 School Street in Georgetown. As shown on Map 6C of the Georgetown Assessors' Maps (Exhibit No. 4), the Plaintiffs' property also abuts a portion of Locus.

4. Locus lies within the Central Residential ("RA") Zoning District of Georgetown. Under Section 3, Paragraph 6(i) of the Georgetown Zoning Bylaw ("Bylaw") (Exhibit No. 5), municipal and single-family dwelling uses are permitted as of right in this zone and retail stores/services, business offices and wholesaling uses are either "excluded or prohibited" in this zone.

5. Section 3, Paragraph 6(i) of the Bylaw sets forth the following dimensional requirements for lots in the "RA" zone:

Lot Area 15,000 square feet

Lot Depth 100 feet

Lot Frontage 125 feet

Front Yard 20 feet

Side Yard 15 feet

Rear Yard 10 feet

As shown on a plan entitled, "Plot Plan in Georgetown; MA for ZBA Variance" (Exhibit No. 6), Locus is dimensionally nonconforming.

6. Section 4, Paragraphs 5(a) and (f) of the Bylaw set forth the following requirements with respect to parking:

Any building hereinafter constructed shall be so located upon its parcel of land that there may be provided off-street parking area in conformance with the following:

a. Stores--Retail Business: At least two spaces for each establishment or one space for each 100 square feet of floor space devoted to retail selling, whichever is larger, plus one space for each three employees or nearest multiple thereof.

f. Residential Areas: Two spaces for each individual dwelling unit except in the case of apartments where two spaces shall be provided for each family unit.

In the instant matter, the Board determined that the mixed use proposed by the Scalas would require a minimum of twenty (20) parking spaces.

7. On or about February 11, 1989, the Scalas filed an application with the Board, seeking the issuance of a variance from Section 3, Paragraph 6 (retail uses in residential zone), Section 4, Paragraph 5 (parking requirements) and Section 6.1.46 (mixed uses on one lot) of the Bylaw. Specifically, the Scalas seek to convert the Fire Station to a mixed commercial/residential use, with a business for the storage, retail and wholesale of antiques and used furniture on the first floor and a residential-apartment on the second floor. For use in conjunction with this mixed use, the Scalas proposed approximately twelve (12) on-site parking spaces.

8. In accordance with Section 3, Paragraph 6 (iv) of the Bylaw, the Board, on March 29, 1989, conducted Site Plan Review relevant to the Scalas' variance application. At this time, the Board also made written recommendations on the application.

9. The Board held a public hearing on the Scalas' variance application on April 4, 1989, which hearing continued to May 2 and 9 of 1989. At the conclusion thereof, the Board voted unanimously to grant the application (See Exhibits No. 1 and 2). The Board's decision, which contains fourteen (14) conditions, was filed with the Georgetown Town Clerk on May 20, 1989 (See Exhibit No. 2).

No landowner possesses a legal right to a variance, Pendergast v. Board of Appeals of Barnstable, 331 Mass. 55 , 559-560 (1954); 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 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 . . . by-law.

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. If the court finds that the decision of the Board was arbitrary, unreasonable, whimsical, capricious or based on some legally untenable ground, it will be annulled. DiGiovanni v. Board of Appeals of Rockport, 19 Mass. App. Ct. 339 , 349 (1985) citing Pendergast at 557, 559-560.

Viewing these principles in light of the present facts, I find that the Scalas [Note 1] have failed to prove that any hardship which they may suffer, in the absence of a variance, is attributable to the soil conditions, shape or topography of Locus or the structure situated thereon.

The evidence before the Court reveals that the Scalas' variance application was premised on deficiencies in the size, or dimensions, of Locus and on the Scalas' desire to expand their present antique business in a zone which prohibits or excludes such uses. Although the Scalas may equate the lot's substandard size with a unique problem attributable to the shape of the land, I find that a nonconformity in size is not synonymous with shape, as contemplated by G.L. c. 40A, §10. McCabe v. Zoning Board of Appeals of Arlington, 10 Mass. 934 (1980); Guiragossian at 116-117; Gordon at 350-351. Further, I find that the Scalas' claim of hardship arising out of their alleged inability to, in the absence of a variance, make any reasonable use of the Fire Station building, is not supported by the evidence. Specifically, I note that, under the Bylaw, single-family residential uses, and others, are allowed as of right in the "RA" zoning district. Although the Scalas assert that the "unique" character of the Fire House structure makes it unsuitable for such uses, I find no evidence before the Court in support thereof. Accordingly, I find that if a hardship does result from the fact that the Fire Station cannot be readily sold or used as a residential, or other allowed, use, it is a hardship which rests with the Town of Georgetown and not with the Scalas, who need not, absent the variance, purchase the building.

As to the Scalas' argument that, without the variance, they will lose warehouse and retail space which is needed to profitably carry on their business, I decline to find that such financial hardship is the result of unique conditions affecting Locus or the building located thereon. See Huntington v. Board of Appeals of Hadley, 12 Mass. App. Ct. 710 , 715 (1981). Further, I accord little merit to their contention that such hardship exists by virtue of the close proximity between Locus and nearby commercial uses, insofar as this contiguity between districts may not be considered a "condition" especially affecting Locus under G.L. c. 40A, §10. Guiraciossian at 117.

Finally, as to the Scalas' contention that the proposed mixed residential/commercial use will not cause substantial detriment to the public good, nor derogate substantially from the intent or purpose of the Bylaw, I find sufficient evidence in the record before the Court to establish to the contrary. In particular, I note that the dimensions of Locus, as well as the parking proposed for use in conjunction therewith, are not in conformity with the minimum requirements of the Bylaw. Further, I find that, by the Scalas own admissions at trial, the operation of the proposed antique business use on Locus may conceivably attract up to one hundred (100) customers on any given weekend, and anywhere from three (3) to forty (40) customers on any given weekday, thereby increasing traffic and parking congestion and noise levels in this residential neighborhood. In addition, I find that the Scalas' future plans for leasing on-site space to other antique dealers will only serve to ameliorate these problems, all to the detriment of the public good.

In consideration of all of the foregoing, I find that the decision of the Defendant Board of Appeals granting a use and dimensional variance to the Scalas exceeded its authority and must be annulled.

Judgment accordingly.


[Note 1] The Defendant Board was not represented by counsel at trial.