By complaint filed September 4, 1990, prsuant to G.L. c. 40A, §17, Plaintiffs appeal the decision of the Stoughton Zoning Board of Appeals ("the Board") granting variances to Defendant, Mark Perlmutter ("Perlmutter") for the construction of two single-family dwellings on substandard parcels ("the Parcels" or "Lots 1 and 2") in Stoughton.
Neither party submitted post-trial memoranda or briefs.
This case was tried on December 5, 1991, at which time no stenographer was present. Five 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. Lots 1 and 2 are shown on a plan entitled, "Plan of Land Sumner Street, Stoughton, Mass." dated June 29, 1990 (Exhibit No. l) ("the Plan"). They are located in an R-15 Zoning District.
2. Plaintiffs reside on land abutting the Parcels.
3. Sections VI (A) and (B) and the Table of Dimensional and Density Regulations of the Stoughton Zoning By-Law ("the By-Law") require 100 feet of lot frontage and 100 feet of lot width for any permitted use in an R-15 Zoning District.
On January 21, 1975, Perlmutter owned 3.2 acres of land fronting Sumner Street ("the Property"), which Property included the Parcels and conformed to the dimensional requirements for building lots. About that time, he divided the Property into three lots. Two were house lots and were sold to Plaintiffs, Eugene F. McKenna and Salvatore W. Pezza respectively. The remainder of the Property which was retained by Perlmutter was by the division and sale rendered substandard ("the Remainder") in that, although it had over 100 feet in frontage, it only had approximately 50 feet in width at the required setback.
4. In 1990, Perlmutter prepared the Plan, which divides the Vacant Parcel into Lots 1 and 2, resulting in two even more substandard parcels. Each Lot has only approximately 50 feet of frontage with 25 feet of width, at the setback line.
5. The Parcels consist of a sloping strip ("the Strip") of land leading from Sumner Street to a large area of backland ("the Backland"). In approximately the first 140 feet away from Sumner Street, the land drops 14 feet. At one time, Perlmutter had a slope easement over the Strip, which easement is no longer in existence. The Backland is often flooded.
6. Perlmutter applied for and was granted variances ("the Variances") from the lot frontage and width requirements of the By-Law, by decision ("the Decision") filed with the Town Clerk on August 15, 1990.
7. Section X(J) of the By-Law provides, in pertinent part:
Variances. the Board may authorize a variance for a particular parcel of land or to an existing building thereon from the terms of this By-Law where, owing to conditions especially affecting such parcel or such building but not affecting generally the District in which it is located, a literal enforcement of the provisions of this By-Law would involve substantial hardship, financial or otherwise to the appellant and where desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent and purpose of this By-Law.
1. Before any variance is granted, the Board must find all of the following conditions to be present:
(a) Conditions and circumstances are unique to the appellant's lot, structure or building and do not apply to the neighboring lands, structures or buildings in the same District.
(b) Strict application of the provisions of this By-Law would deprive the applicant of reasonable use of the lot, structure or building in a manner equivalent to the use permitted to be made by other owners of their neighboring lands, structures or buildings in the same District.
(c) The unique conditions and circumstances are not the result of actions of the applicant taken subsequent to the adoption of this By-Law.
(d) Relief, if approved, will not cause substantial detriment to the public good or impair the purposes and intent of this By-Law.
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 variances 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. The provisions of a by-law regarding a variance must conform to, and cannot be more liberal in granting the variance than, G.L. c. 40A, §10, which imposes on the applicant 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. 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.
A landowner will not be able to create a dimensional nonconformity 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); Gordon at 351.
In the present case, I find that Perlmutter created the present nonconformities in frontage and width and cannot now be granted a variance. Further, Perlmutter failed to show unique soil conditions, shape or topography of the Parcels, nor did he demonstrate substantial hardship.
Accordingly, I must find that the Board exceeded its authority in granting the Variances and the Decision must be and is hereby
annulled.
Judgment accordingly.
EDWARD M. MILANO, CHERI ANN MILANO, SALVATORE W. PEZZA, DEBORAH A. PEZZA, EUGENE F. McKENNA, SANDRA D. McKENNA, JOHN W. CRESSWELL, FLORENCE M. CRESSWELL, and CORNELIUS F. DOHERTY vs. HERBERT MUSMON, JERALD SAVAGE, ORLANO DiGIAMPIETRO, DENNIS JOHNSON and GEORGE EICHORN, as they are members of THE STOUGHTON ZONING BOARD OF APPEALS, STEPHEN BORNSTEIN, FAITH CLABRESE, PAUL McALISTER, BRUCE OLSEN and D. ANNE CUSHING, as they are alternate members of THE STOUGHTON ZONING BOARD OF APPEALS, THE TOWN OF STOUGHTON, and MARK PERLMUTTER.