NICHOLAS DeFELICE and MARY DeFELICE vs. ANNE R. SCIGLIANO, ROBERT M. GARY, JOHN J. McWEENEY, FRANCIS W. K. SMITH, CLARENCE D. TURNER, SUSAN S. BECK, ERIC T. CLARKE, WILLIAM C. HAYS, MARY W. MILEY, ROBERT V. WHITMAN and EDWIN P. WHITTEMORE, as they are members of the BOARD OF APPEALS OF THE TOWN OF LEXINGTON, and COLIN RICHARDSON.

Plaintiffs appeal the grant to defendant Richardson of three variances necessary for the establishment of an automobile repair garage (Miscellaneous 147228) and the affirmation of a Building Commissioner's determination that another variance was not necessary for the garage (Miscellaneous 153998).

A consolidated trial was held on July 16 and July 19, 1991. A stenographer was appointed and recorded the testimoy. Twenty Exhibits (some with multiple parts) were introduced into evidence; all of them are incorporated in this Decision for purposes of any appeal. The parties submitted a Joint Stipulation of Undisputed Facts.

The following witnesses testified: Michael Brennen, who formerly lived next door to Plaintiffs on Westview Street; Plaintiff, Mary DeFelice; Richard J. Dennis, Sr., an appraiser; all testifying for Plaintiffs; and Defendant, Colin Richardson, and Gary Larson, a landscape architect; both testifying for Richardson.

I viewed Locus on July 19, 1991.

I find and rule for Plaintiffs in both actions, as follows (paragraphs 1 through 17 being based on the Joint Stipulation):

1. Plaintiffs, Nicholas DeFelice and Mary DeFelice, live at 85 Westview Street, Lexington.

2. Defendants Scigliano, Gary, McWeeney, Smith, Turner, Beck, Clarke, Hays, Miley, Whitman and Whittemore are the full and associate members of the Zoning Board of Appeals (the "Board") of the Town of Lexington (the "Town").

3. Defendant, Colin Richardson ("Richardson") operates an automobile repair garage known as Midnight Motors located on Route 2A in the Town. Richardson owns the property known as 80 Westview Street, in the Town (the "Property"), which is the subject of this action.

4. The Property lies at the intersection of Westview Street and Maguire Road and contains approximately 9,900 square feet of land.

5. The Property lies within a CM (Commercial-Manufacturing) zoning district under the Town's Zoning By-Law (the "By-Law"). Plaintiffs' home across the street lies within an RO (Residential-One Family Dwelling) zoning district.

6. At the time Richardson acquired the Property, a wood­frame building (the "Old Building"), at various times in the past used as a residence or for business purposes, sat vacant on the land.

7. On April 21, 1987, Richardson applied for a special permit to construct and operate an automobile repair facility on the Property. By a decision dated May 14, 1987, the Board denied that application.

8. Richardson then redesigned his proposed development of the Property (the "Proposed Garage"), and in early 1988, Richardson sought and received permission from the Board to reapply for a special permit.

9. On March 30, 1988, Richardson filed an application for two special permits: to permit operation of an automobile repair business and to reduce the transition area required at the edge of a zoning district. On the same day, Richardson filed an application for variances from certain dimensional requirements, including front yard setback and rear yard setback.

10. On April 28, 1988, the Board held a public hearing concerning these requests for zoning relief. On June 1, 1988, the Board filed with the Clerk of the Town two decisions granting the requested special permits and variances.

11. The plaintiffs appealed those decisions in Brennen, et al. v. Riffin, et al. (Middlesex Superior Court C.A . No. 88-3716), in which the Court (Hallisey, J.) allowed the plaintiffs' motion for summary judgement annulling the grant of the variances and allowed the defendant's motion for summary judgement upholding the grant of the special permits. The Court remanded the variance matters to the Board for further action.

12. The decision of the Middlesex Superior Court with respect to the special permits is currently under appeal (Appeals Court No. 90-P-182).

13. On or about November 26, 1988, prior to the decision of the Middlesex Superior Court, Richardson contracted for the demolition of the Old Building in accordance with a demolition permit issued by the Town Building Department dated October 11, 1988. On or about November 26, 1988, the Old Building was completely demolished.

14. On January 17, 1990, Richardson re-filed his application for front yard setback and rear yard setback variances, adding a request for a parking area setback variance. On June 1, 1990, the Board filed with the Town Clerk a decision (Exhibit 6) granting the three requested variances and Plaintiffs have appealed (Case 147228).

15. On July 2, 1990, Plaintiffs requested a determination by the Town Building Commissioner (the "Building Commissioner") that the Proposed Garage would require a variance from the minimum lot size requirements of the By-Law, Section 7.1.

16. By a letter dated July 11, 1990, the Building Commissioner determined that no variance was required.

17. On November 9, 1990, after a public hearing had been held on October 11, 1990, the Board filed with the Town Clerk a decision (Exhibit 8) affirming the determination of the Building Commissioner and Plaintiffs have appealed (Case 153998).

18. The Property is at the easterly side of the intersection of Westview Street and Maguire Road and contains about 9,900 square feet. Exhibit 10 shows the Property as having six sides but three of those are very short, producing essentially a triangle having a long base (186') on Westview Street, a shorter (105') side on Maguire Road and a third side (95') connecting the other two.

19. I have attached a copy of Exhibit 17, a portion of the Assessor's Map, to which I have added some notations. The Property is the lot numbered 12 on the attached. Plaintiffs' house is on the lot marked 3. The northerly side of Westview Street, to the extent shown on the attached, is residential. In the triangle formed by Westview and Maguire there are the Property (now vacant land) at the apex of the triangle and behind it, on the area marked 16, a large parking lot. Across Maguire Road at the lots marked 13A and 15, are, respectively, an ITEK industrial facility and a parking lot; between the two is the entrance to an office park located a considerable distance in (southerly) from Maguire Road. There are commercial and other non-residential activities on Westview Street further east and west of the Property but the immediate neighborhood of the Property is as described above - residential across Westview Street and commercial across Maguire Road and a parking lot to the east of the Property. In the past the Property has served as a buffer zone between the RO (Residential) and CM (Commercial-Manufacturing) zones.

20. Traffic on Westview Street and Maguire Road is busy generally and heavy at the beginning and end of workdays, creating a traffic problem at the intersection. The intersection is categorized as a "High Accident Location" by the Lexington Police. Exhibit 15 is a May 1988 Police report showing eleven accidents in the period from July 25, 1986 to March 8, 1988. The office parks generate a considerable amount of pedestrian traffic at and near the intersection, especially at lunch time. There are no sidewalks to accommodate that traffic.

21. The variances which the Board voted to allow are a front yard of 3' on Westview Street where 100' is required and a rear yard of 13.5' on Maguire Road where 50' is required and to allow parking closer to the residential district boundary (28') and closer to Westview Street (3') than otherwise allowed (50').

22. Richardson's present business, Midnight Motors Garage, on Marrett Road, in the Town, is a foreign car repair business, emphasizing antique cars. The repairs are light repairs, not involving engine overhauls, body work or painting. He also performs motor vehicle inspections (currently from 1,500 to 1,700 a year). The present operation handles about three-four cars a day and has two full time employees (including Richardson) and a part­time employee. Richardson bought the Property in 1986, hoping to move his business there. The Proposed Garage is planned as a business of the same size and character as his present business.

23. The Proposed Garage is to be a one story structure having four repair bays. As shown on Exhibit 9, "Proposed Site Plan", the Proposed Garage would be a rectangle of about 60' x 35', with the long dimension being parallel to Westview Street in the middle of the Westview Street frontage and set back about 3' from the street line.

24. Even though the Westview Street setback variance is characterized as a front-yard, the access to the Proposed Garage would be from Maguire Road. Earlier plans had the access on Westview Street but Richardson changed to the present scheme to mitigate the impact of the Proposed Garage on his residential neighbors and for traffic safety reasons. Once the Property was developed, it would be almost all consumed by the Proposed Garage and hard-top - the plans call for eight parking spaces. That is in contrast to the earlier situation, in which, barring the Old Building, the Property was predominantly vegetated.

25. The face that the Property would show to the residential neighbors, if developed as Richardson proposes, would be the back of the Proposed Garage, brick with no windows, and a solid wood fence, 6' high, running along most of the Westview Street frontage of the Property (the Proposed Garage would thus sit just behind the fence). Existing trees will be retained for the most part and additional plantings and landscaping installed.

26. When Richardson bought the Property in 1986, the Old Building, a two story wood frame house, was on it. The Old Building had most recently been used as a commercial photo laboratory. A large office trailer had been located on the Property at one point but the specifics on that do not appear in the record. The Old Building had been substantially altered to accommodate the photo business - removing many if not most of the floors and interior walls. By the time of Richardson's acquisition, the photo business had ceased and the Old Building had started to run down. Richardson testified that deterioration had gone so far that demolition was the only practical course, but I conclude that had he wanted to use the Old Building and acted promptly he could have done so without unreasonable expense. The Old Building's plumbing did not function. There was conflicting testimony as to whether the Old Buildings's septic system was under the basement (creating a problem with the Town's health officials). The Old Building was vandalized from time to time, being vacant, and for same reason, Richardson could not insure it. Richardson's Affidavit (Exhibit 18) indicates that the Building Commissioner had told him that the Town would order the demolition of the Old Building if Richardson did not demolish it. There was no further development of testimony on that point. Richardson acquired the Property on December 8, 1986 and demolished it on November 26, 1988.

27. In the Board's Decision as to variances the Board's finding as to soil conditions, shape or topography, required by G. L. c. 40A, Section 10, is based on the Property's shape, "...essentially a flat triangle situated between two streets intersecting at an acute angle." I accept that the Property is shaped that way and accept the Board's finding that that circumstance does not affect generally the Property's zoning district. (Plaintiffs did not contest either of those points.)

28. However, I do not agree that a variance is appropriate "owing to" the shape. The problem here is size, not shape, and under controlling case law a variance may not be had because of size. The two cases closest to our situation are DiCicco v. Berwick, 27 Mass. App. Ct. 312 (1989) and Mitchell v. Board of Appeals of Revere, 27 Mass. App. Ct. 1119 (1989). DiCicco is a Boston case but Chapter 40A is even stricter than the Boston enabling act in this particular. In DiCicco ledge was unique to the lot but the real problem was found to be size and side yard and area variances were overturned. In Mitchell the unique feature was slope but the Court found that the hardship was really based on size and reversed a grant of yard variances. Guiragossian v. Board of Appeals of Watertown, 21 Mass. App. Ct. 111 (1985) is to the same effect-shape (roughly triangular lot) is not the real problem and shape not significantly unusual.

29. Those cases can be profitably contrasted to Wolfman v. Board of Appeals of Brookline, 15 Mass. App. Ct. 112 (1983) - variance justified by reverse "L" shape of the lot and hydrological conditions - and Paulding v. Bruins, 18 Mass. App. Ct. 707 (1984) - "pork-chop" lot (having a stem 15' by 400") overall much larger than other lots in the neighborhood justifies frontage and width variances.

30. Richardson argues that the size of the Property is immaterial beause the lot size is grandfathered (more on that issue later). I disagree. That argument bridges only half the gap Richardson must cross. It validates the size of the Property but doesn't deal with the fact that the variances are needed because of size, not shape. A lot of the Property's size would need variances no matter how shaped.

31. The Board's finding as to substantial hardship is that without the variances construction of any building on the Property is practically impossible. If the 100' front yard setback is measured from Westview Street (even from the centerline) it appears to me that construction would be wholly impossible, and certainly so when combined with a 50' rear yard requirement; the Property is only 67' deep, measured from the Westview Street sideline.

32. Plaintiffs, however, suggest that we must look at the situation when Richardson acquired the Property in December 1986, or at least in June 1988 when litigation as to Richardson's zoning relief was commenced. I agree. "...changes and commitments made by...(Richardson)...after purchasing the land with a zoning law limitation on its use cannot be made a fulcrum to lift those limitations." Cary v. Board of Appeals of Worcester, 340 Mass. 748 (1960), at p. 750.

33. When Richardson bought the Property there was a structure on it which, with reasonable renovation costs, was usable. Plaintiffs' appraiser, Mr. Dennis, indicated that dimensional deviations would be required for rental use of the building, but those were never elaborated and it appears likely to me that low-impact commercial use, such as the pre-existing photo laboratory, could have been continued. In any event, Richardson bought with an eye to having his garage on the Property and there is nothing wrong with that, but he set off without having his zoning relief in hand. It was beyond the Board's authority to base its hardship determination on the impossibility of constructing any building on the Property without the variances where that situation had been created by Richardson - he could have used the building he found there.

34. The Board's findings that the variances could be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent and purposes of the By-Law were justified and I make the same findings. The traffic impact of the Proposed Garage would not noticeably worsen existing conditions. There would be no appreciable noise impact and I see no threat of hazardous substances. Richardson has gone to commendable lengths to minimize the visual and other impacts of the Proposed Garage and, given the overall character of the neighborhood and its location on the boundary of a commercial district, I find that such lessening of the amenity of the Property as might occur with the Proposed Garage would not rise to the level of substantiality required to refuse the variances.

35. What of the Board's affirmation of the Building Commissioner's finding that no lot area variance was necessary (Miscellaneous 153998)? The minimum lot size is three acres, and the Property contains just under a quarter of an acre. I assume the Property was at one time a validly sized lot, since the parties have argued on that basis (i.e., their argument has been restricted to whether the Property is grandfathered).

36. This problem is not readily solvable from either G. L. c.40A, Section 6 ("Section 6") or the By-Law. Neither party claims there is protection under Section 6, except for Defendants' reliance on its first paragraph, as to which Defendants point particularly to the second sentence allowing the extension or alteration of pre-existing non-conforming uses or structures. Richardson, however, proposes wholly new construction, for which see denial in Angus v. Miller, 5 Mass. App. Ct. 470 (1977). That being the case, I do not have to consider whether the Board's variance findings could constitute a "Section 6" finding, required by the second sentence. I note that the Building Commissioner does not base his determination (Exhibit 7) on Section 6.

37. Neither Section 6 nor the By-Law expressly protects an under-sized, non-residential lot. However, both do so by necessary implication (and note also many references to "lot" in the By-Law). Section 6 states that a by-law "shall not apply to (pre-existing) structures." Suppose a building on a conforming lot and a later increase in lot size requirements, so that the lot becomes too small. An unhappy neighbor argues that "shall not apply to structures" protects only the dimensional aspects of the structure itself - sideyards, height, etc., and that, since the lot has become too small, the building must be demolished. Surely, that idea does not fly (even without the benefit of Section 7, G. L. c. 40A).

38. I conclude that if there is a non-conforming structure on an undersized, non-residential lot, Section 6 protects the lot co-extensively with the protection given the structure under Section 6. If the structure can be reconstructed, extended, structurally changed or altered under Section 6 and its attendant case law, then the lot is protected.

39. Richardson argues that he demolished the Old Building because the Building Cominissioner told him if he didn't, the Town would order it demolished because it was a safety hazard and posed a liability threat. The only support for that contention is a single sentence in Richardson's Affidavit (Exhibit 18) and I conclude that Richardson has not established that the demolition was required by the Town. Richardson admitted that he bought the Property in order to establish the Proposed Garage. As far as Section 6 is concerned, the construction of the Proposed Garage is not protected and accordingly, lot size is not grandfathered.

40. Based on his reading of the By-Law, the Building Commissioner reached the opposite conclusion. Despite the deference due the Building Commissioner's reading of his own By-Law, I find his determination unreasonable and unsupported by the By-Law. The By-Law is more elaborate than Section 6 in what constitutes discontinuance and abandonment but basically it reaches the same result as Section 6, and even that requires a good deal of reading between the lines. Specifically, the By-Law, read liberally, protects lot size as long as the structure on the lot is protected.

41. Under Section 6.2.7 of the By-Law a pre-existing structure is considered discontinued or abandoned if it is not used for 24 consecutive months. As to our facts, I find that to be the case, measuring the 24 months backwards from the demolition in November, 1988. In addition, the same By-Law section finds earlier discontinuance and abandonment if "there is evidence of discontinuance or abandonment and it is apparent that the owner does not intend to resume the use or other non-conforming situation..." "... evidence of discontinuance or abandonment shall be...ceasing to be open to the public for the conduct of business for a period of six continuous months, and one or more of the following: ..." There follow a list of indicia, at least three of which apply removal of customary equipment, disconnecting utilities, failure to provide for cold weather operation. I conclude that within the meaning of the By-Law, the "non-conforming situation", the Old Building, had been abandoned or discontinued by Richardson and that the lot size was no longer grandfathered.

42. In summary:

a) Even if the shape of the Property is unusual in the zoning district, the aspect of the Property requiring variances is size, not shape. It is impossible to reshape the Property in any way that would allow the Proposed Garage to fit within required dimensionals.

b) The Old Building on the Property on Richardson's acquisition was usable with reasonable expenditures and the Board's hardship finding, which was based on the practical impossibility of constructing any building, was unauthorized.

c) The variances requested could be granted without substantial detriment and the Board's finding to that effect was proper.

d) There is no Section 6 grandfathering for vacant land but here the Old Building was on the Property, bringing the situation within the first paragraph of Section 6, which I rule affords lot area grandfathering.

e) However, that protection was lost when the Old Building was demolished and a wholly new structure planned for its replacement.

f) Richardson has not established that the demolition of the Old Property was required by the Town. Under the By-Law, Richardson discontinued or abandoned the Old Property and, with it, lot area grandfather protection.

g) In Miscellaneous 147228 the Board's June 1, 1990 Decision is annulled. In Miscellaneous 153998 the Board's October 11, 1990 Decision is annulled.

43. Plaintiffs' motion in limine, as to the condition of the Old Building and introduction of evidence by Richardson on that point, is denied. Plaintiffs' motion for dismissal, made after presentation of Defendants' case, is denied.

Judgment accordingly.

exhibit 1