ROBERT M. SCHNEIDER and PATRICIA SCHNEIDER vs. WILLIAM KOZLOWSKI and SHEILA KOZLOWSKI and ROBERT L. KYDD, GUSTAVE H. N. FALLGREN, EILEEN M. DUFFY, DANIEL BURKE and ROBERT J. SCHARN, as they are Members of the Zoning Board of Appeals of the Town of Chelmsford.

This is an appeal under G.L., Ch. 40A, Sec. 17 from a decision of the defendant Board of Appeals (Board), dated October 18, 1990, which decision granted the defendants, William Kozlowski and Sheila Kozlowski (Defendants), a variance from Section 2600 of the Chelmsford Zoning By-law (By-law), which Section requires a building lot to have a minimum of 125 feet of frontage and lot width.

The case was submitted on a stipulation of Agreed Facts and Exhibits and was argued by counsel.

The facts which I find pertinent are as follows:

1. Since 1977, the Defendants have been the owners and occupants of a single-family dwelling located at 52 Warren Avenue, Chelmsford, which property is shown as Lot 8 on a plan entitled "Plan of Land in Chelmsford, Mass., Middlesex County," dated September 18, 1990. This plan is Exhibit 2.

2. The land shown as Lots 8 and 9 on said Plan was acquired by the Defendants in 1977.

3. The land shown as Lot 10 and Parcel A on said Plan was acquired by Defendants by deed from 76 Development Corporation, dated June 16, 1986, recorded with Middlesex North District Registry of Deeds, Book 3608, Page 172.

4. Lot 10 and Parcel A were subject to certain rights of redemption, which were extinguished with considerable effort and expenses by the Defendants.

5. As shown on said Plan, Defendants propose to combine Parcel A with Lot 9, thus creating Lot 9A, which Lot would contain 20,321 square feet with 88.43 feet of frontage on Marion Street.

6. Plaintiffs are the owners of, and reside at property located at 12 Marion Street. This property abuts Lot 8 and proposed Lot 9A on the rear and proposed Lot 9A along that lot's southerly border. Plaintiffs' lot contains 10,674 square feet and has 106 feet of frontage. It appears to be a nonconforming lot.

7. Lot 9A and Lot 10 are both located in a RC Residential District, in which two-family dwellings are permitted; the dimensional requirements for a building lot are, as stated above, set forth in Section 2600 of the By-law and require 125 feet of frontage and width and 20,000 square feet of area.

8. The property opposite Lots 10 and 9A on Marion Street, also in the RC District, contains two-family dwellings on lots of less than 20,000 square feet. I am unable to determine from the evidence whether this property is nonconforming or whether it has the benefit of a variance.

9. On or about September 28, 1990, Defendants filed an Application for a Variance from Section 2600. On or about October 18, 1990, the Board voted to grant the variance.

10. The Decision was timely filed as was Plaintiffs' appeal.

During oral argument, Defendants raised for the first time the question of Plaintiffs' standing. This argument was not made in Defendants' Pretrial Memoranda nor even inferred in the Stipulation of Facts. As abutters and persons entitled to receive notice under G.L., Ch. 40, Sec. 11, Plaintiffs qualify as parties in interest and thereby are presumed although by rebuttable presumption to be persons aggrieved. Gordon v. Zoning Board of Appeals of Lee, 22 Mass. App. Ct. 343 , 347 (1986). Defendants have offered no evidence to rebut such presumption and in any event such defense is not timely raised.

In consideration of all of the foregoing and the arguments and memoranda of Counsel, I find that:

The Decision of the Board does not meet the requirements of G.L., Ch. 40A, Sec. 10.

The Board appears to have based its decision on the fact that the only violation of the By-law is at the frontage and lot width "with no opportunity to allow for purchase to make the lot legal..." The Board apparently ignored the fact that Defendants are, or were, the owners of adjacent Lot 10 which when combined with Lot 9A had more than ample frontage.

Actually what Plaintiffs sought was to divide a conforming building lot into two lots, one of which would be non-conforming. While such maneuver would appear to be advantageous to Plaintiffs, it is difficult to see that the use of one lot rather than two is a hardship; or, if so, that such hardship relates to the shape, soil conditions or topography of the lot. Moreover, even if it is, it is a hardship created by the Defendants.

The criteria for a variance are clearly set forth both in G.L., Ch. 40A, Sec. 10 and in case law. In short, there must be a hardship "owing to circumstances relating to soil conditions, shape or topography of such land..."

The lack of frontage under the facts of this case is not such a circumstance. Dicicco v. Berwick, 27 Mass. App. Ct. 312 (313-315) 1988; Guiragossian v. Bd. of Appeals of Watertown, 21 Mass. App. Ct. 111 , 116 (1985).

Accordingly, I find and rule that the Decision of the Board, dated October 18, 1990 granting the Kozlowskis a variance, exceeded the authority of the Board and said variance is hereby annulled.

Judgment accordingly.