This case is an appeal by plaintiff, Otto Swanson ("Swanson"), from a decision of the Zoning Board of Appeals in the Town of Weston ("the Board") denying Swanson's application for variances from frontage and other dimensional requirements of the Town Zoning By-Law.
The trial was held at the Land Court on February 10, 1992, upon an Agreed Statement of Facts, oral testimony and exhibits admitted by agreement of the parties.
The Agreed Facts are as follows:
1. Plaintiff, Otto Swanson ("Swanson") resides at 198 Arlington Street, Watertown, Massachusetts.
2. Defendants, Robert P. Cook, Roger D. Scoville, Ronald E. Eames, Earl M. Harvey, Henry P. Becton, Jr. and L. Whitman Smith, are members and associate members of the Zoning Board of Appeals in the Town of Weston ("the Board").
3. Swanson is the owner of a parcel of land containing 68,327 square feet, situated on Garwood Drive in Weston, Massachusetts, shown as Lot 12 on a plan of land entitled "Plan of Land for Board of Appeals, Weston, Massachusetts", dated June 6, 1983, prepared by GLM Engineering Consultants, Inc. (Exhibit 1).
4. Swanson filed a Petition for Variance with the Board on May 12, 1986 seeking variances from the street frontage, lot width at set back line and lot width at building line rquirements of the Town Zoning Bylaw to permit construction of a new structure (Exhibit 2).
5. The Board held a public hearing on June 25, 1986 and filed a Decision with the Town Clerk of the Town of Weston on June 30, 1986 denying the Petition for Variance (Exhibit 3).
6. Swanson commenced this action alleging that the Board exceeded its authority and seeks to annul the Decision of the Board. Swanson requests that the variances requested of the Board be granted by this Court.
7. At a Pretrial Conference on September 18, 1987 a Memorandum and Order was entered by Hallisey, J., remanding the case to the Board for further findings of fact.
8. The Board, in response to the Pretrial Memorandum and Order, made further findings of fact (Exhibit 4).
9. The Town Zoning Bylaw (Exhibit 5) establishes districts (Section V) and dimensional requirements with respect to construction within districts (Section VI). Lot 12 is situated in Residence District A requiring the following:
Area: 60 ,000 square feet
Street frontage: 200 feet
Lot Width at Street Setback Line: 200 feet
Lot Width at Building Line: 200 feet
10. Lot 12 area and pertinent dimensions are:
Area: 68,327 square feet
Street frontage: 170.06 feet
Lot Width at Street Setback line: 156 feet
Lot Width at Building line: 172 feet
11. Lot 12 complies with the area requirements but does not and cannot comply with the other dimensional requirements for construction in Residence District A.
12. Lot 12 is a lot resulting from a subdivision by Swanson of a larger tract of land owned by him shown as Lot 5 on a plan entitled "Plan of Land in Weston, Massachusetts", dated September 12, 1956, prepared by Everett M. Brooks Co. (Exhibit 6).
13. Lot 12 and the surrounding area is shown on a portion of the Town Atlas (Exhibit 7).
Swanson, who lived in Weston for many years after inheriting a tract of land containing approximately twelve acres on Corwood Drive, subdivided the land and built some houses. The subdivided lots were situated such that underground sewage disposal systems could be installed. Lot 12 is a parcel resulting from a re-subdivision and could not be used. Swanson had applied to the Board for variances from the zoning by-law on six previous occasions commencing in 1955. The Board denied each of those applications.
The Board has the power to grant variances from the terms of the applicable zoning by-law where the Board 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 by law would involve substantial hardship, financial or otherwise, 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 by-law. General Laws, Chapter 40A, Section 10.
A deficiency in the frontage of a lot is not a circumstance relating to the soil conditions, shape or topography of such land that will satisfy one of the several statutory pre-requisites for a variance. Karet, et al v. Zoning Board of Appeals of Worcester, et al, (1989) 27 Mass. App. Ct. 439 . In circumstances where the hardship arises solely from the fact that the lot is too small to qualify as a buildable lot under the zoning by-law, the Board has no authority to grant a variance. Mitchel1, et al v. Board of Appeals of Revere, et al, (1989) 27 Mass. App. Ct. 1119 . A land owner will not be permitted to create a dimensional non-conformity if he could have used his adjoining land to avoid or diminish the non-conformity. Planning Board of Norwell v. Serena, et al, (1990) 406 Mass. 1008 .
I find and rule that there are no circumstances relating to the soil conditions, shape or topography of Swanson's land and especially affecting such land but not affecting generally the zoning district in which it is located such that a literal enforcement of the provisions of the zoning by-law would involve substantial hardship, financial or otherwise, to Swanson, and that desirable relief may not be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of the zoning by-law, and that Swanson created Lot 12 with its dimensional non-conformity when he could have used adjoining land which he owned to avoid the non-conformity.
The Board was correct in denying Swanson's application for variances and, therefore, did not exceed its authority in so doing.