DANIEL W. CRYAN vs. JAMES M. FLEMING, RICHARD A. BENCAL, JOHN R. NUTTING, EDWARD LUZINSKI, RICHARD FEBONIO, PETER DORE and ARTHUR LaBRECQUE as they are THE SALEM BOARD OF APPEALS.

By complaint dated September 14, 1989, Daniel W. Cryan ("Plaintiff"), pursuant to G.L. c. 40A §17, appeals the denial of a variance by the Board of Appeals of the city of Salem ("the Board") by its order dated August 25, 1989. Plaintiff sought a variance from that section of the Zoning Ordinance of the City of Salem ("Ordinance") which restricted the property at 96 Essex Street in Salem ("Locus") to residential use as a single or two-family dwelling as well as a variance from the off-street parking requirements of the Ordinance.

This case was tried on March 21, 1991, at which time the proceedings were transcribed by a reporter designatd by the parties. Two witnesses testified and five exhibits were introduced into evidence. All of the exhibits are incorporated herein by reference for the purpose of any appeal.

After considering the evidence, testimony and pertinent documents, I make the following findings of fact:

1. Plaintiff is the owner of Locus upon which stands a three­story dwelling with a gambrel roof ("the Dwelling"). When Plaintiff purchased the Dwelling it contained an apartment on each of the three floors. The neighborhood and zoning district of Locus contains older two, three and four-family dwellings. There was no evidence that the Dwelling was ever used as a three-family dwelling.

2. Locus is in an R-2 zoning district. Under Section V (A) (2) (b) of the Ordinance, only one and two-family dwellings are allowed in this district. Plaintiff seeks to use the premises as a three-family dwelling.

3. Section VII(6) of the Ordinance provides that in an R-2 district each building or use is required to have one and one-half parking spaces per unit, with a minimum of two spaces. Locus contains no space for off-street parking.

4. Under a prior Ordinance, Plaintiff's predecessor in interest to Locus was granted a special permit to use the Dwelling as a three-family dwelling and a variance from the off-street parking requirements of the Ordinance. The parties have agreed that both have lapsed due to nonuse. As noted in Finding No. 2, the Ordinance has since been amended.

5. On July 19, 1989, Plaintiff applied to the Board for variances to utilize Locus as a three-family dwelling and to vary the off-street parking requirements for Locus.

6. On August 25, 1989, the Board filed a decision with the City Clerk of Salem denying Plaintiff's petition for variances (Exhibit No. 1).

No landowner possesses a legal right to a variance, Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555 , 559(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 Appeal 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 ordinance or 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 ordinance or 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 427. Only if the court finds that the decision of the Board was arbitrary; unreasonable, whimsical, capricious or based solely 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 do not find that Defendants' decision was so flawed.

Plaintiff argues that the Dwelling is unique because it is a three-family house in a two-family district and that because of its interior design it would be impractical to convert to a two-family. He presented no evidence, however, that the shape of Locus is unique within the zoning district. The Court has consistently held that size is not synonymous with shape as contemplated by G.L. c. 40A, §10. Shafer v. Zoning Board of Appeals of Scituate, 24 Mass. App. Ct. 966 , 967 (1987); McCabe v. Zoning Board of Appeals of Arlington, 10 Mass. App. Ct. 934 (1980). Accordingly, under the circumstances of this case, I find and rule that shape is not synonymous with interior design and further that neither the shape of the Dwelling nor the shape of Locus is unique for the purposes contemplated by G.L. c. 40A, §10.

Further, Plaintiff has failed to prove that a literal enforcement of the provisions of the Ordinance would involve substantial hardship. Plaintiff argues that if a variance was not granted he would be forced to combine the second and third floor apartments into one rented unit, which would create a substantial hardship. "The fact that the landowner is unable to put the premises to a more profitable use is a factor to be considered but alone is not an adequate cause for a variance." Bicknell Realty Co. v. Board of Appeal of Boston, 330 Mass. 676 , 681 (1953). In Planning Board of Barnstable v. Board of Appeals of Barnstable, 358 Mass. 824 (1971), the fact that a more economical and practical use of land might have been made if it were used for apartment rather than single family purposes did not support a variance. Accordingly, in this case, I find no substantial hardship has resulted from the denial of the variance.

Plaintiff presented no credible evidence on the issue of a variance from the off-street parking requirements of the Ordinance. Accordingly, I rule that he has failed to meet the requirements of G.L. c. 40A, §10.

Both Plaintiff and Defendants submitted Proposed Findings of Fact and Rulings of Law. I have not attempted to rule on each of said Requests as I have made my own findings on the questions of fact which I deem material and on the law which I believe is applicable.

In summary, I rule that Plaintiff has neither proven that failure to grant a variance would cause substantial hardship nor that any hardship he may suffer was attributable to the soil conditions, shape or topography of Locus or the Dwelling.

Judgment accordingly.