CARMINE SODANO v. PAUL MARKS, BRIAN BEATTIE and DARREN BAIRD as members of the WINTHROP BOARD OF APPEALS

Introduction

This case, plaintiff Carmine Sodano’s G.L. c. 40A, § 17 appeal from the Winthrop Zoning Board of Appeals’ denial of his application for a variance from the 2 ½ story height limit for residential dwellings, presents two issues.

First, was such a variance required? The house was originally two stories tall with an attic immediately above the second floor under a steeply pitched roof. In June 1997, in accordance with a building permit he obtained from the town’s building inspector, Mr. Sodano raised the height of the left side of the roof, creating a new apartment in that area of the former attic. [Note 1] Can he now, without a variance, raise the roof height on the right side to create additional living space? Mr. Sodano contends that he can, arguing that all he needs is a special permit. More precisely, he argues that the 1997 building permit created a “legal” third floor, making that floor “lawfully non-conforming” and one he can expand with a G.L. c. 40A, §6 finding so long as the expansion is not “substantially more detrimental” to the neighborhood. The building inspector, affirmed by the zoning board, ruled otherwise.

Second, if a variance was needed, did Mr. Sodano prove each of the elements required for such a variance? He says “yes”. Again, the board ruled “no.”

The case was tried before me, jury-waived. Based upon the evidence admitted in connection with the trial, my assessment of the credibility, weight and inferences to be drawn from that evidence, and as more fully set forth below, I find and rule that a variance was necessary and Mr. Sodano failed to prove his entitlement to such a variance. The board decision is therefore AFFIRMED and Mr. Sodano’s appeal is DISMISSED in its entirety, with prejudice.

Facts

These are the facts either agreed by the parties [Note 2] or as I find them after trial.

Mr. Sodano owns the property at 97 Grovers Avenue in Winthrop, the subject of this case. The property is currently a two-unit residential building, on a 6500 square foot lot, located in an RA (Residential A) zoning district. [Note 3] The lot is a perfect rectangle, which is common on the street. Like all of the lots on its side of the street, it starts at grade in the front and then slopes downwards until it meets the beach and ocean. [Note 4] The lots on the other side of the street are more level. The Sodano lot is 50 feet wide by 130 feet deep. The abutting lot is identical in size. Some of the lots further away are a little smaller.

The two units in the Sodano property are on three levels of living space. The first unit, presently occupied by Mr. Sodano’s elderly mother, takes up the first and second levels. The second unit, where Mr. Sodano lives, is a one-level apartment on the third level, created in 1997 when Mr. Sodano, pursuant to a building permit, raised the roof on the north (left) side of the house (the left half), making a living area out of the former attic. [Note 5] The roof line on the south (right) side of the building remained the same, i.e. sharply sloped.

The third floor apartment as constructed is 33’ wide by 40’ deep (1,320 square feet). [Note 6] The 21’-wide area on the left (17’ under the “raised” portion of the roof, plus 4’ immediately to the right of the roof peak) (840 square feet in total) has an existing ceiling height of 8’. The ceiling over the remaining 12’ (the remaining 480 square feet) is sharply sloped, starting at 8’ and dropping to no more than 3’ – 3 ½’. [Note 7]

In 2008, Mr. Sodano sought to construct a 17” x 42’ “dormer” on the roof over the south (right) side of the building to give his unit an additional 480 square feet of 8’ high living space (the 12’ x 40’ area referenced above). There would be no change to the building footprint. On June 12, 2008, the building inspector denied Mr. Sodano’s application for a building permit to construct this dormer, citing what is now Winthrop Zoning Bylaw Chapter 145-24 (Table of Dimensional Regulations). [Note 8] Specifically, the building inspector ruled:

Permit was denied in accordance to the Town of Winthrop Zoning Bylaws.

Owner is seeking a permit to construct a new 17’ x 42’ dormer on the north side of the dwelling. Permit was denied in accordance to the Town of Winthrop By-laws [citing the text which limits residential buildings in this district to 2 ½ stories]. Relief needed from maximum number of stories of 2 ½.

Building Commissioner Decision (Jun. 12, 2008).

On July 11, 2008, Mr. Sodano filed a timely appeal of the building inspector’s decision with the Board of Appeals. The Board held a hearing on July 31, 2008 and took a view of the site on August 6, 2008. The neighbors were duly notified of the hearing. So far as the record shows, none raised any objection to Mr. Sodano’s request.

The Winthrop Zoning Bylaw Chapter 145-24 (Table of Dimensional Regulations) refers the reader to Chapter 145-23J for Residential A lots which existed prior to July 1, 1982. Mr. Sodano’s property is such a lot. That section provides the following height restriction for the subject property: Preexisting lots. One-family and two-family dwellings on lots subdivided prior to July 1, 1982, shall be regulated as follows: … No existing building may be altered to exceed 2 ½ stories, not to exceed 35 feet.

Chapter 145-23J has existed in that form since at least April 29, 1993. Trial Ex. 1 (Zoning Bylaw, Chapter 145-23J).

The definition of a half-story is: “STORY, HALF — A story which is under a gable, hipped or gambrel roof, where less than ½ the floor area has a clear height of seven feet or more.” Zoning Bylaw, Chapter 145-5. The pertinent portion of the definition of a story is: “STORY — The portion of a building which is between one floor level and the next higher floor level or the roof. …An attic shall not be deemed to be a story if unfinished and not used for human occupancy.” Id.

A sketch of the building prepared for Mr. Sodano shows that, at its peak, the roof of the building is 34’, 2”. The proposed construction will not increase this height. For purposes of this litigation, the parties agree that the roof does not exceed 35’ in height.

The Board found that Mr. Sodano’s application proposed to add a dormer on the south side of the building. The plans submitted showed the east, west and south exterior walls of the structure extending vertically on the same plane as the second floor walls above the second-floor level, making a full third level to the building which would not conform to the zoning bylaws. The Board determined that, by extending the exterior north wall of the building vertically above the ceiling line of the second floor, Mr. Sodano had created half of an illegal third story in 1997. The Board further found that Mr. Sodano was not entitled to increase the nonconformity of the building.

The Board further found that Mr. Sodano had failed to demonstrate any of the four requirements for a variance. More specifically, the Board found that there was no showing of any particular or unique conditions of the subject property to find application of the zoning bylaw’s height restrictions impracticable. The Board found that the hardship required to support a variance must arise due to the unique physical characteristics of the property and no such showing was made. The Board also found that the fact a more economical and practical use of the property might be made by enlarging the principal structure thereon did not support a variance.

Additional facts are included in the analysis section below.

Analysis

A Variance was Needed

The bylaw applicable to Mr. Sodano’s dwelling prohibits it from exceeding 2 ½ stories. Bylaw, Chapters 145-24, 145-23J. This bylaw has been in place since before 1993.

Mr. Sodano’s application to the Board was unequivocal. It stated that “the property is a two and one-half story two family home situated on the east side of Grovers Avenue upon 6500 square feet of land.” Trial Ex. 7 at 3 (Application for Variance or Appeal from the Decision of Building Inspector, Jul. 11, 2008). Raising the right side of the roof to add an additional 480 square feet of 8’ high living space would clearly increase the existing 2 ½ stories to something more (a full third story), requiring a variance.

In recognition of this, Mr. Sodano now makes a different argument. Under the bylaw’s definition of “half-story”, the Sodano dwelling would appear to exceed 2 ½ stories in height. This is because more than half the floor area of the existing third level is 7’ high or more. [Note 9] Bylaw, Chapter 145-5 (definition of half-story). Nothing can presently be done about this. The violation occurred pursuant to a duly-authorized building permit issued in 1997, and the work that occurred under that permit is protected by the six and ten year statutes of limitation in G.L. c. 40A, §7. Mr. Sodano thus argues that the dwelling is now a legally protected, non-conforming three-story structure which he can expand by special permit pursuant to a G.L. c. 40A, §6 “finding”. This is incorrect. The building, as is, may be protected by G.L. c. 40A, §7’s statutes of limitation, but this does not make it a protected, non-conforming structure entitled to expand under G.L. c. 40A, §6.

G.L. c. 40A, §6 is quite explicit. For its protections to apply, the non-conformity must have been “lawfully in existence or lawfully begun” prior to the bylaw that made it non-conforming. Here, the bylaw restricting Mr. Sodano’s dwelling to 2 ½ stories has been in place since at least 1993. Bylaw, Chapter 145-23J (Trial Ex. 1). Mr. Sodano’s dwelling did not exceed 2 ½ stories until 1997. The 1997 building permit that allowed the raising of the left side of the roof, to the extent it allowed the creation of more than ½ a floor of living space on the third level, was thus illegal. G.L. c. 40A, §7 does not, retroactively, make it legal. It simply now makes it beyond challenge, “as is.” It certainly does not authorize a further illegality, i.e. a further expansion of living space on that floor in violation of the long-standing 2 ½ floor limitation. Simply put, two wrongs do not make a right. A variance is required.

A Variance is Not Justified

Variances are governed by G.L. c. 40A, § 10 which states, in pertinent part:

The permit granting authority shall have the power… to grant upon appeal or upon petition with respect to particular land or structures a variance from the terms of the applicable zoning ordinance or by-law where such permit granting authority 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 ordinance or by-law would involve substantial hardship, financial or otherwise, to the petitioner or appellant, 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 ordinance or by-law.

The Winthrop zoning bylaw mirrors these requirements. Bylaw, Chapter 145-72.

The Supreme Judicial Court has “repeatedly held that no variance can be granted unless all of the requirements of this statute are met.” Warren v. Zoning Bd. of Appeals of Amherst, 383 Mass. 1 , 9-10 (1981). “[A] failure to establish any one of them is fatal.” Guiragossian v. Bd. of Appeals of Watertown, 21 Mass. App. Ct. 111 , 115 (1985) (citing Blackman v. Bd. of Appeals of Barnstable, 334 Mass. 446 , 450 (1956)). Further, variances “are to be granted sparingly.” Id. (citing Damaskos v. Bd. of Appeal of Boston, 359 Mass. 55 , 61 (1971)); Dion v. Bd. of Appeals of Waltham, 344 Mass. 547 , 555 (1962). “[T]he burden rests upon the person seeking a variance … to produce evidence at the hearing in the [Land Court] that the statutory prerequisites have been met and that the variance is justified.” Dion, 344 Mass. at 555-556 (1962).

Mr. Sodano has failed to prove the first requirement. On the facts of this case, there are no circumstances relating to the soil conditions, shape or topography of the land or structures affecting this property and not affecting the zoning district generally. His lot is a perfect rectangle. So are the others in the neighborhood. There was no evidence that his soil conditions are different from any others. His land slopes towards the ocean, but so do all of the lots on his side of the road, some even more than his. The structures in the neighborhood are predominantly residential, like his. Raising his roof on the right side, making the house more symmetrical in appearance, may make it more aesthetically pleasing, but there was no evidence that it is out of character with the others in the neighborhood as presently constructed.

Mr. Sodano has failed to prove the next requirement as well. On the facts of this case, he will not suffer any substantial hardship, financial or otherwise, owing to the soil conditions, shape or topography of his lot, as a result of the variance denial. Mr. Sodano argues that the sloping topography of his lot creates the “hardship of limited use of the land.” Post-Trial Memorandum of Plaintiff Carmine Sodano at 6-7 (Dec. 1, 2009). But he is using that land now as a two-family residence (the same use he intends if the variance is granted), and at most is prevented from expanding its usable square footage. The additional space may well make the house more comfortable, but this is not sufficient to justify a variance. The pictures show an already large house, with a substantial addition and two sizeable decks on the back (oceanfront) side. The unit whose expansion is sought already has two bedrooms, a great room, a kitchen and a bath in addition to its oceanside deck. I have great sympathy for Mr. Sodano’s desire to expand his unit to make it easier for him to care for his elderly mother downstairs, but “the grant of a variance [must] be based only upon circumstances which directly affect the real estate and not upon circumstances which cause personal hardship to the owner. The criteria in the act relate to the land, not to the applicant.” Huntington v. Zoning Bd. of Appeals of Hadley, 12 Mass. App. Ct. 710 , 715 (1981) (internal quotations and citations omitted). [Note 10] “The special circumstances justifying the grant of a variance must relate to the soil conditions, shape or topography of such land or structures.” Id. (internal quotations and citations omitted). Here, they do not.

In light of this, I need not and do not decide if the variance 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.” G.L. c. 40A, § 10. Since Mr. Sodano must prove each of the statutory requirements and has not done so, he is not entitled to the grant of a variance. Guiragossian, 21 Mass. App. Ct. at 115.

Conclusion

For the foregoing reasons, the Board’s decision is AFFIRMED and Mr. Sodano’s appeal is DISMISSED in its entirety, WITH PREJUDICE. Judgment shall enter accordingly.

SO ORDERED.

Exhibit 1