The cases before the court concern the construction of two residential structures on land owned by Husam Azzam (Azzam) and located on a parcel known as and numbered 220-222 Hurley Street, [Note 1] Cambridge, Massachusetts, which directly abuts another parcel owned by Azzam, 224-226 Hurley Street. [Note 2] The two lots became non-conforming with applicable zoning requirements in 1943 when the City of Cambridge amended its Zoning Ordinance (Ordinance) to require a minimum area of 5,000 square feet per lot. After Azzam purchased the properties in 2000, he built two residential dwelling units on 220-222 Hurley Street and rebuilt four residential units on 224-226 Hurley Street; there now are six residential dwelling units at the combined 220-226 Hurley Street locus. The Cambridge zoning enforcement officer, after initially granting both building permits and certificates of occupancy for the structures at 220-222 Hurley Street, later revoked them, based on a determination that Azzam's lots located at 220-222 Hurley Street and 224-226 Hurley Street were merged for zoning purposes and that, as a result, the structures violated a dimensional requirement of the Ordinance--requiring 1,500 square feet per dwelling unit. [Note 3]
In Miscellaneous Case No. 320365, Azzam appealed to the Superior Court, pursuant to G. L. c. 40A, § 17, from a decision (enforcement decision) of the Zoning Board of Appeals (Board) of the City of Cambridge (City), whose members are defendants, upholding the permit revocation orders by the Cambridge zoning enforcement officer relating to the structures located on the 220-222 Hurley Street property.
Azzam subsequently applied to the Board for a zoning variance, which he sought to permit the re-issuance of the certificates of occupancy for the two single-family dwelling units located at 220-222 Hurley Street. The Board, by decision (variance decision) filed with the City Clerk on November 5, 2004, granted Azzam's application. In Miscellaneous Case No. 303805, Heather Hoffman (Hoffman), who owns and resides in a house across Hurley Street from Azzam's property, appealed the variance decision to the Land Court pursuant to G. L. c. 40A, § 17.
The enforcement decision appeal was transferred to the Land Court and I ordered it consolidated with the variance decision appeal on April 6, 2006. After I viewed the locus and surrounding neighborhood, the consolidated cases came on for trial before me. I rendered a single decision and directed entry of judgments in both cases on August 31, 2007. I found that the enforcement decision was not legally entitled to be modified or annulled by the court, because the parcels merged for zoning purposes when they came into common ownership in 1950, had not lawfully been freed from that merged status, and therefore were to be treated as a single lot for zoning purposes. Miscellaneous Case No. 303805, challenging the variance decision, was dismissed because I determined that Hoffman did not have standing.
Both Azzam and Hoffman appealed; the appeals were consolidated. The Appeals Court issued a decision on August 10, 2009, reversing the Land Courts judgment dismissing Hoffmans variance appeal for lack of standing and vacating the Land Courts judgment in the enforcement appeal. The Appeals Court remanded the consolidated cases to the Land Court with instructions to remand to the Cambridge Zoning Board of Appeals. Hoffman v. Zoning Bd. of Appeal of Cambridge, 74 Mass. App. Ct. 804 (2009). The Supreme Judicial Court declined further appellate review. 455 Mass. 1104 (2009).
Pursuant to remand orders entered in this court, the Board held public hearings on the variance and the merger question on March 25, 2010. The Board voted unanimously to deny Azzams appeal, making the determination that the two lots had merged while under common ownership, and were to be considered as one lot for zoning compliance purposes. The Board also unanimously voted to grant the variance, making findings in support, including a finding of hardship.
Both Hoffman and Azzam appealed the Boards decisions. After a status conference with the parties, this court ruled that Hoffmans standing no longer was in dispute, because it had been established with finality by the Appeals Court in its review of this case. Hoffman filed a motion for summary judgment. Azzam filed a cross-motion for summary judgment. I heard argument on the summary judgment motions, taking up the issues of merger of the lots, and their separate designation for zoning purposes, as well as of the validity of the granted variance. The motions were accompanied by statements of undisputed facts, see Land Court Rule 4, and affidavits. After hearing, I took the motions under advisement. I requested the parties to file supplemental briefs regarding the decision in Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115 (2011), and its potential effect on the question of Hoffmans standing. After taking into consideration the motions, affidavits, briefs, undisputed material facts, and supplemental filings, I now decide the case.
The following facts are supported by the record and appear without material dispute:
1. Heather Hoffman and her husband, Mark Jaquith, own, and reside at, property located at 213 Hurley Street, Cambridge, Massachusetts (Hoffman Property). The Hoffman Property is located across the street from Azzam's property at 220-226 Hurley Street, Cambridge, Massachusetts, the locus which is the subject of this case.
2. Prior to Azzam taking title, the two parcels were held by Maximiano Gouveia and Narciza Gouveia, who took title to 224-226 Hurley Street by deed dated March 19, 1942, and title to 220-222 Hurley Street by deed dated May 17, 1950.
3. From May 17, 1950 forward, both parcels were held in common ownership; they remained in common ownership at all times through 2000; in that year Azzam, as trustee, took title to the locus in a single deed.
4. The 1942 deed to Maximiano and Narciza Gouveia described 224-226 Hurley Street as a rectangular lot thirty-five feet by one-hundred feet. The 1950 deed to the Gouveias described 220-222 Hurley Street as having 3,000 square feet of land area. As described in the 1942 and 1950 deeds, the land at 220-226 Hurley Street comprises 6,500 square feet of total land area. The Board treated the combined 220-226 Hurley Street land as measuring 7,100 square feet. [Note 4]
5. When the Gouveias purchased 224-226 Hurley Street in 1942, the property contained a four unit residential structure. From 1950 until 2000, the Gouveias operated a commercial parking lot on the parcel at 220-222 Hurley Street. A fence separated the two parcels.
6. The Property at 220-226 Hurley Street is located within the Residence C-1 Zoning District (C-1 District) under the Ordinance. In 1943, the City adopted Article V of that Ordinance, establishing a minimum lot size of 5,000 square feet for property in the C-1 District. Thus, in 1943, the two parcels, then in unrelated ownership, each lacked the minimum lot area required by the Ordinance.
7. After approval by the City of building permit applications to build two units on the land at 220-222 Hurley Street, on September 27, 2000 Azzam took title to the locus involved in this litigation, as trustee of the 220-226 Hurley Street Realty Trust, in a single deed that described the locus as two parcels. The applications for the two building permits were submitted by Laura Freitas, one of the Gouveias successors and a co-owner of the land. Azzam was directly involved in the preparation and submission of the applications.
8. On October 13, 2000, the City issued building permits for the construction of two single-family dwelling units on the parcel at 220-222 Hurley Street.
9. On June 11, 2003, Azzam, as trustee, deeded 220-222 Hurley Street to himself individually in a deed recorded at the Middlesex (South District) Registry of Deeds at Book 39560, Page 049.
10. When construction on the residential units at 220-222 Hurley Street was complete, the Cambridge Building Commissioner (Commissioner) issued certificates of occupancy for the two dwelling units.
11. The Commissioner later sent a letter to Azzam on July 2, 2003 stating that under the Ordinance in effect as of August 28, 2000, the locus at 220-226 Hurley Street was only allowed a maximum of four residential dwelling units, not six, because the lot totaled only 7,100 square feet. Section 5.30.12 of the Ordinance required a minimum lot area per dwelling unit of 1,500 square feet in the C-1 District, and Azzam accordingly was told he needed a minimum lot area of 9,000 square feet for lawful occupancy by the six dwelling units. The Commissioners finding was based on the determination that the two parcels were to be treated as a single lot for zoning purposes, the parcels having merged when they came into common ownership in 1950, a status that the Commissioner determined had not changed since then.
12. Section 5.12 of the Ordinance effective August 28, 2000, provides that, The lot or yard areas required for any new building or use may not include any part of a lot that is required by any other building or use to comply with any requirements of this Ordinance, nor may these areas include any property of which the ownership has been transferred subsequent to the effective date of this Ordinance if such property was a part of the area required for compliance with the dimensional requirements applicable to the lot from which such transfer was made. Section 5.15 of the Ordinance provides that, No lot or development parcel shall be changed in size, shape or ownership so that the dimensional requirements prescribed in this Ordinance are no longer satisfied.
13. The Commissioner sent a second letter to Azzam on July 29, 2003, stating that he had determined the two residential units on 220-222 Hurley Street were in violation of the Ordinance. The Commissioner rescinded the certificates of occupancy for the two units and ordered Azzam to remove them.
14. Azzam appealed the Commissioners determination that the units were in violation of the Ordinance to the Cambridge Zoning Board of Appeals. The Board enforced the Commissioners order (enforcement decision) in a decision dated and filed with the City Clerk on July 23, 2004.
15. In addition to appealing to the Board the Commissioners determination, Azzam applied for a variance. If granted, he expected this variance would permit re-issuance of the revoked certificates of occupancy to allow the buildings the way they are on 220-222 Hurley Street.
16. The variance request was granted on November 5, 2004. In allowing the variance the Board concluded, [t]he Board specifically finds that there are circumstances involving a substantial hardship relating to this property within the meaning of [ ] G. L. c. 40A, § 10. The Board noted the following hardships:
a. that the lot is unusually shaped;
b. that it contains a structure built before the advent of zoning, which is grossly nonconforming to current standards and creates an unusual position for the building of a building on the lot, and that this property is encumbered by this structure;
c. and that there is a condition of wetness in the soil of the site, which means that development beneath the buildings would be impractical.
17. The Board also concluded in its decision that desirable relief could be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of the Ordinance.
18. In Miscellaneous Case No. 320365, Azzam appealed to the Superior Court, pursuant to G. L. c. 40A, § 17, from the enforcement decision of the Board.
19. In Miscellaneous Case No. 303805, Hoffman, as an across-the-street abutter to Azzam's property, appealed the variance decision to the Land Court pursuant to G. L. c. 40A, § 17.
20. The enforcement decision appeal was transferred to the Land Court, was consolidated with the variance decision appeal, and the consolidated cases came on for trial by the court.
21. On appeal Azzam challenged the Boards conclusion that the two parcels had merged and remained so, requiring that they be considered as one for purposes of analyzing compliance with the Ordinances dimensional regulations. Azzam argued that the lots at 220-222 and 224-226 Hurley Street retained separate identities and therefore did not merge when they came under common ownership in 1950. Azzam also has contended that because the lots were not designated to be used, developed or built upon as a separate unit, and did not merge, the Ordinances grandfather nonconforming provisions applied to the un-merged lots, allowing him to build on 220-222 Hurley Street without needing a variance, and despite the lot being undersized. Azzam further argued that the two lots preserved separate identities because they had been maintained for separate uses both by him and, previously, by the Gouveias, the prior owners.
22. Hoffman argued that she had standing to appeal the variance because she would suffer harm from the loss of on street parking spaces near her property, a reduction in available street parking which she claimed would result from the occupancy of the additional dwelling units.
23. Hoffman and her husband have two vehicles, each of which has a city resident parking sticker; she also has a visitors parking pass that allows guests to park on the street. Hoffman cited Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 (1996), as authority for the proposition that the loss of even one on-street parking space is sufficient to confer standing in a zoning appeal.
24. Both Hoffman and Azzam presented testimony from traffic engineers, who presented conflicting evidence on the number of parking spaces available within a two- or three-block radius of Hoffmans property, and on the effect the Azzam project, if allowed to be used as constructed, would have on area street parking availability.
25. After a taking a view of the locus and three days of trial, I rendered a decision and judgment entered on August 31, 2007.
26. In the decision, I concluded that the Boards enforcement decision was not legally entitled to be modified or annulled, because the two lots became non-conforming in 1943 when the Ordinance was amended and merged for zoning purposes when they came into common ownership in 1950. The courts decision also was that the different uses and treatment of the two lots were not sufficient to retain the separate identities of the lots, even despite the lots having been described separately in the 2000 deed to Azzam, and having been taxed separately. Finally the decision said that Azzam could not redivide the merged lots by conveying 220-222 Hurley Street to himself individually, and therefore the two lots needed to be treated as a single lot for zoning purposes.
27. The court dismissed Miscellaneous Case No. 303805, Hoffmans appeal challenging the variance decision, after concluding that Hoffman did not have standing. Although I found that there would be an increased demand for on-street parking, of not more than one or two spaces, the decision determined that Hoffman was not an aggrieved person because the increase was nominal and there was still ample available parking on Hoffmans Block and in the immediately surrounding area, Hoffman did not have an absolute or exclusive right to park near her property, and so she did not demonstrate that she would sustain any particularized harm.
28. Having found Hoffman lacked standing, the court did not reach the merits of the variance decision appeal.
29. Azzam and Hoffman each appealed to the Appeals Court the judgments against them in the two cases; the appeals were consolidated.
30. Hoffman argued that the trial court had applied an incorrect legal standard in determining that she lacked standing to appeal the variance, that the court needed to reach the merits of the variance, and that it was facially invalid.
31. In his appeal, Azzam argued that the two lots never merged; the Appeals Court considered the argument that when the city issued building permits to Azzam the two parcels never had been designated to be used, developed, or built upon as a unit, and thus were not a single lot as defined by Article 2.000 of the Ordinance.
32. The Appeals Court issued a decision on August 10, 2009.
33. On the issue of Hoffmans standing the Appeals Court determined:
a. Putting forth credible evidence of a particularized injury is equivalent to establishing a plausible claim of that injury. Hoffman v. Board of Zoning Appeal of Cambridge, 74 Mass. App. Ct. 804 , 809 (2009); Butler v. City of Waltham, 63 Mass. App. Ct. 435 , 441 n.13 (2005).
b. Under the reasoning in Marashlian, even a diminution in on-street parking that would leave adequate parking available is sufficient to confer standing. 421 Mass. at 723. Accordingly, even the entirely modest diminution of street parking resulting from the challenged project would constitute a recognized injury of the sort sufficient to ground a zoning appeal.
c. Hoffman produced credible evidence of injury sufficient to confer standing, under the Marashlian standard; it was not relevant that Hoffman did not have an absolute or exclusive right to park on the block. Marashlian, 421 Mass. at 723; Hoffman, 74 Mass. App. Ct. at 809. (2009)
34. Concluding that Hoffman had standing to challenge the variance, the Appeals Court considered the merits of the variance appeal and determined:
a. The Appeals Court did not need to remand the Boards variance decision to this court to consider the question in the first instance, because the decision granting the variance was insufficient as a matter of law. Hoffman, 74 Mass. App. Ct. at 810.
b. The Board's decision did not contain findings with respect to whether relief could be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of the ordinance. Id.
c. More than a mere recital of the statutory prerequisites or assertion that each of those prerequisites has been met is needed to support a variance. Id.
d. The decision granting the variance needed to be reversed, but the Board would be given the opportunity to address upon remand whether facts existed supporting sufficiently the requisite findings for a variance. Id. at 810-11.
35. After determining the variance was insufficient as a matter of law, the Appeals Court addressed the issue of merger (or not) to determine whether or not the locus consists of two separate lots for zoning purposes, which, if established, would make the two dwelling units on 220-222 Hurley Street lawful. The Appeals Court decided:
a. A person owning adjoining record lots may not artificially divide them so as to restore old record boundaries to obtain a grandfather non-conforming exemption; to preserve the exception the lots must retain 'a separate identity.' Hoffman, 74 Mass. App. Ct. at 812; Lindsay v. Board of Appeals of Milton, 362 Mass. 126 , 132 (1972).
b. It is within the legislative power of the city to override the effects of the common-law merger doctrine and allow adjacent non-conforming lots that come into common ownership to be treated as separate lots for zoning purposes. Hoffman, 74 Mass. App. Ct. at 812.
c. Because the Court owed deference to the Board's reasonable construction of its own ordinance . . .the best course [was] to vacate the judgment of Land Court in the enforcement appeal and remand to the board to allow it to construe its ordinance in the first instance. Id. at 814.
36. The Appeals Court remanded the two consolidated cases to this court with instructions that it remand to [the Board] for further proceedings consistent with [the Appeals Court's opinion]. The Land Courts decision on the enforcement appeal was vacated and remanded for the Board to construe its own Ordinance; the Land Courts judgment of dismissal with respect to the variance appeal was reversed, given the Appeals Courts determination that Hoffman did have standing, and the issue of the variance was to be remanded to the Board.
37. After hearing from the parties on the form of remand order to enter, this court remanded the consolidated cases to the Board for a lawfully noticed new public hearing with instructions that the Board shall hold the public hearing concerning Azzam's application for a variance....[and a]t the public hearing, the Board shall receive and consider such information, material, and presentations as it shall deem necessary, appropriate, and desirable, and, following the close of the hearing, shall revise its Variance Decision to make new and further findings in light of the Opinion of the Appeals Court . . . .the Board shall make determinations and factual findings addressing whether or not there is a lawful basis for meeting the statutory requirements for granting the variance, including without limitation whether the variance may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of the Ordinance. Hoffman v. Cambridge Zoning Bd. of Appeals, Land Court, No. 04-MISC-303809/ 06-MISC-320365 (Dec. 31, 2009).
38. This court also ordered the Board to hold a public hearing concerning Azzam's administrative appeal in which he requested the Board to reverse the decision of the City's Building Commissioner and to make new findings in light of the opinion of the Appeals Court. Id.
39. The Board was ordered to make determinations and factual findings addressing the application of the definition of lot as set forth in Article 2.000 of the Ordinance to the land at issue. The Board, in its revised decision, shall offer its interpretation of the Ordinance concerning (i) the meaning of that definition, particularly as it relates to the issue whether or not there has taken place, as to the locus, merger for zoning purposes, and (ii) the procedure required for an effective designation, and whether or not such a designation has taken place, as to the locus. Id.
40. Finally, this court retained jurisdiction over the consolidated cases, including any appeals from or relating to the Board's further proceedings. Id.
41. The Board held noticed public hearings concerning: (1) the remanded application of Husam Azzam for further findings to be made in connection with a variance, previously filed in BZA Case No. 8840, and (2) the remanded administrative appeal of Azzam for further findings and determinations. During the hearings the Board heard presentations from the parties, represented by counsel, and received information and materials regarding both decisions.
42. On April 22, 2010 the Board rendered two revised decisions.
43. With regard to the ordinance violation appeal (Case No. 8741) the Board unanimously voted against Azzams request; the Board reviewed, read into the record, and adopted as correct an expository memorandum dated March 25, 2010 provided to the Board by the incumbent Commissioner. Azzams appeal was denied with the Board finding, among other things:
a. With respect to the property at 220-226 Hurley Street, the two under-sized lots merged in 1950 when they first came under common ownership. The deed for the second lot, 220-222-1/2 Hurley Street, was recorded on May 17, 1950, so the minimum lot size requirements established by the Ordinance in 1943 of 5,000 square feet in a Residence C-1 District apply to the combined lots. The minimum lot area requirement applicable to each dwelling unit in the District is 1,500 square feet. The total area of the combined parcels (7,100 square feet) was sufficient only to accommodate the four existing residential units, thus rendering the two additional units . . . illegal.
b. Because these two lots were non-conforming, the property owner could not 'designate' either of these lots to be built upon separately in a manner that would increase the non-conformities.
c. The designation process occurs at the time of the submission of a building permit application, where no other zoning relief is required. The purpose of the designation provision in the definition as we have long interpreted it, is to permit a property owner who owns two or more contiguous lots, some or all of which are conforming lots, to choose to designate the lots to be used, developed or built upon as a unit in order to take advantage of the combined as-of-right building envelope for the designated combined lots. This occurs fairly frequently when large land owners seek to design a project by massing the structures as they desire while satisfying setback and open space and other dimensional requirements on contiguous lots in common ownership.
d. Azzam's desired interpretation of the designation provision would create a conflict with the explicit minimum lot size requirement of the Ordinance that applies to any lot no matter how it is 'designated' by the property owner.
e. The history of the two lots, including actions of the prior owners, did not render the merger doctrine inapplicable to Azzam's property.
f. The common law doctrine of merger produces an important benefit of bringing non-conforming lots into greater conformance . . . there is no evidence or history to suggest that the City Council intended a contrary result.
g. There is nothing in the Ordinance's definition of lot in Article 2 or in Article 5, § 5.21.1, that supports or suggests an intent to override the common law doctrine of merger.
h. The definition of lot contains no mechanism for designating non-conforming lots to avoid the merger doctrine, suggesting that the City Council, in enacting the definition of lot, did not intend to override the concept of merger.
i. After taking into account these findings and conclusions, and its consideration of benefits to the community yielded by the common law doctrine of merger, the Board determined that the Commissioner's decision--that a merger for zoning purposes took place when the adjacent lots came into common ownership and remained in effect thereafter--was correct.
44. On the variance request (Case No. 8840), the Board unanimously voted to grant the variance, finding hardship within the meaning of G. L. c. 40A, §10, making the following findings:
a. The variance could be granted without substantial detriment to the pubic good and without nullifying or substantially derogating from the intent or purpose of the Ordinance.
b. Literal enforcement of the provisions of the Ordinance would involve a substantial hardship because:
i. the two single-family residential structures were constructed with an absence of bad faith;
ii. the structures cannot be occupied without the variance, thereby causing Azzam substantial financial loss and ongoing financial burden to maintain structures and avoid hazards to abutting properties;
iii. there is a condition of wetness in the soil making development beneath the legally conforming structure impractical; and
iv. this is an unusually shaped lot.
c. Section 1.30 of the Ordinance includes purposes, which are furthered by granting of a variancesuch as encouragement of housing, conservation of value of land and buildings, and promotion of the most rationale use of land.
d. Granting the variance will not thwart the Ordinances purposes of lessening congestion of streets, preventing overcrowding of land, and undoing concentration of population.
e. Any potential adverse impact of allowing six residential units at Locus is outweighed by the facts and circumstances of the case and by furthering the purpose of Ordinance.
45. After the Board's decisions on remand, Azzam appealed to this court the decision which determined that the two lots had indeed merged for zoning purposes and remained so, and Hoffman appealed the issuance of the variance.
46. This court held a conference telephonically on August 26, 2010, to clarify the scope of issues available following rescript from Appeals Court. After hearing counsel, the court ordered that the issue of Hoffman's standing was not in dispute, because her standing had been established by the Appeals Court, and the Appeals Court did not remand the case to resolve or address the issue of Hoffmans standing. An order entered on the docket that day reflects this ruling.
47. The court further determined that summary judgment was appropriate to test the validity of the variance granted by the Board. The court would review the legal correctness of the Boards decision on the question of the lots separate zoning status, a decision which yielded the determination that the lots were in fact merged and required to be considered for zoning purposes as one--with the Board deciding that the lots had not been designated as separate zoning lots in a manner provided for in the Ordinance and so did constitute a single zoning lot at all relevant times.
48. Plaintiffs in both appeals filed motions to amend their respective complaints to raise any challenges to the decisions of the Board after remand. After a status conference both Hoffman and Azzam filed motions for summary judgment and presented argument to the court.
49. The court later asked the parties to submit supplemental briefs on the legal issue of standing in zoning appeals and how it is affected by the Supreme Judicial Court's decision in Kenner.
Standard for Summary Judgment
Summary judgment is appropriate "where there are no issues of genuine material fact, and the moving party is entitled to judgment as a matter of law." Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638 , 643-644, (2002); Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 716, (1991); Community Nat'l Bank v. Dawes, 369 Mass. 550 , 553, (1976); Mass. R. Civ. P. 56 (c). In determining whether genuine issues of fact exist, the court must draw all inferences from the underlying facts in the light most favorable to the nonmoving party. See Attorney General v. Bailey, 386 Mass. 367 , 371, cert. den. sub nom. Bailey v. Bellotti, 459 U.S. 970, (1982). The moving party has the burden of affirmatively demonstrating the absence of a genuine issue of material fact on every relevant issue, regardless of who would have the burden on that issue at trial. Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34 , 39 (2005). For any claim for which the moving party does not have the burden of proof at trial, the party may demonstrate the absence of a triable issue either by submitting affirmative evidence that negates an essential element of the opponents case or by demonstrating that proof of that element is unlikely to be forthcoming at trial. Flesner v. Technical Communication Corp., 410 Mass. 805 , 809 (1991); Kourouvacilis, 410 Mass. at 716.
This case comes before the court on appeal by both Azzam and Hoffman after remand to the Cambridge Zoning Board of Appeals. The court cannot reach and revisit the merits of Hoffmans aggrievement, on dispositive motion or otherwise, because the issue has been determined previously by the Appeals Court, and stands as the law of the case. All of the relevant facts are undisputed as to the issues of merger and the separate zoning status of the lots, the question addressed by the Board in the remand of its enforcement decision. On the issue of the variances validity, the court is in a position to address, as matter of law, whether the variance is sufficient, because all material facts are undisputed, and this court previously has made findings of fact on relevant points after trial; the parties have not introduced any new material facts; and because the Board, on remand, made its own findings, adequate for review, as to all the required elements of a variance, which the court now may evaluate under the appropriate legal standards. The court concludes that based on the undisputed material facts, taking all inferences in favor of the Board on the issues of merger, designation under the Ordinance, and the propriety of the enforcement decision, summary judgment must be granted as matter of law in favor of the Board. Taking all inferences in favor of Azzam on the issue of the variance, there being no facts of a material nature disputed, summary judgment must be granted as matter of law in favor of plaintiff Hoffman.
I first address the issue of merger and the separate designation and status of the lots for zoning purposes, as there would be no need to address the validity of Azzams variance if I were to decide that his two lots are able to be treated as separate for zoning regulation purposes, and thus are protected by the grandfathering provision in Article 5, § 5.21.1 of the Cambridge Zoning Ordinance. Section 5.21.11 of the Ordinance provides:
On lots of less than the required area for the district in which they are located and which have been duly recorded by plan or deed with the Registry of Deeds before the date of the first passage of the applicable provisions of this or any prior ordinance, the minimum lot size and lot width regulations need not apply but the floor area ratio and the minimum lot area regulations for each dwelling unit shall be applicable . . . .
The Ordinances grandfather protection makes increases in lot size requirements inapplicable to previously conforming lots earlier described in deeds or plans of record. If this protection is available, then distinct lots (created earlier by deed or plan), though they are adjoining on now commonly-owned land, are not to be treated as merged for the purpose of zoning regulations setting minimum lot sizes and lot widths. If the parcel at 220-222 Hurley Street is treated for all purposes as a separate lot for zoning purposes, it would satisfy the Ordinances minimum lot area per dwelling regulation, containing enough square footage to support two dwelling units; there would be no need for Azzam to receive a variance.
Adjacent lots in common ownership will normally be treated as a single lot for zoning purposes so as to minimize nonconformities. Preston v. Board of Appeals of Hull, 51 Mass. Ap.. Ct. 236, 238 (2001). Here, there is no dispute that both of the parcels at 220-222 Hurley Street and 224-226 Hurley Street are owned by Azzam, although, after initially being acquired by him as trustee together under a single deed, the former now is held by Azzam individually, and the latter as trustee. If under Azzams ownership (or under the prior ownership by the Gouveia family) the adjacent parcels can be said to have been placed in common ownership, the ordinary principles of zoning law call for the two parcels to merge mandatorily for zoning purposes, requiring their combined area to be applied so as to diminish or eliminate nonconformities. If, however, the parcels have been kept from merger because they have retained separate identities, or because an indulgent local zoning law provision requires something more than just common ownership to trigger the otherwise applicable merger doctrine, then the parcels may be analyzed separately to meet the dimensional minima of the Ordinance, and may in that way satisfy them.
Azzam has argued that his lots are exempt from the merger doctrine under Article 5, § 5.21.1 of the Ordinance, relying on the Supreme Judicial Courts reasoning in Lindsay v. Board of Appeals of Milton, 363 Mass. 126 (1972), that there may be, under local law provisions, an exception to merger for undersized lots which have retained a separate identity. 362 Mass. at 132 (finding that a grandfather exception applies only to lots which have not merged). [Note 5] Azzam maintains that under Article 2 of the Cambridge Ordinance, lots may retain separate identities if designated for different uses. Article 2 of the Cambridge Ordinance, which codifies the definitions of terms used in this local zoning law, defines lot as [a] parcel of land in identical ownership throughout, bounded by other lots or by streets which is designated by its owner to be used, developed, or built upon as a unit. (emphasis added) Under his reading of Article 2, Azzam argues that the parcels at 220-222 Hurley Street and 224-26 Hurley Street are separate lots because the designation called for in the definition of lot had not been made. Azzam would have the court consider that the lack of any such outright designation has left the two parcels to be treated as separate for zoning dimensional compliance. Azzam also may be arguing that the Gouveias somehow designated the two parcels for different usesa commercial parking lot and four residential units, respectively. Azzam argues, in any event, that neither he nor the Gouveias ever designated the two lots to be used (nor to be developed or built upon) as a single unit. This all points, in his view, to an outcome that requires the two parcels to be judged independently to see if each separately meets the relevant dimensional rules, including the minimum lot area per dwelling ratio.
The Ordinance does not specify how landowners may designate lots for separate purposes. The Appeals Court recognized that it owe[d] deference to the boards reasonable construction of its own ordinance, and thus upon remand this court ordered the Board to make findings as to the application of the definition of lot to Azzams property, to explain the procedure required for designation, and to determine whether a merger had taken place for zoning purposes, or whether the parcels, never effectively having been designated, retained their independence. On remand the Board unanimously voted after hearing that there is nothing in the definition of lot in Article 2 or in Article 5, §5.21.11 that supports or suggests an intent to override the common law doctrine of merger, the definition of lot contains no mechanism for designating non-conforming lots to avoid the merger doctrine, and merger took place when the adjacent lots came into common ownership . . . . Based on those determinations, which it made by applying the pivotal language of the local zoning law, and applying its local vantage point, the Board affirmed the original Commissioners decision, wholeheartedly adopted the analysis of the incumbent Commissioner in the memorandum he submitted at the time of its hearing on remand, and denied Azzams appeal of the revocation order.
Courts, as the Appeals Court observed, owe deference to a local boards reasonable construction of the municipalitys own zoning law, including, at least where multiple interpretations lie within the band of a reasonable reading, as to the meanings of terms included in, and the intentions lying behind, the ordinances words. Livoli v. Zoning Bd. of Appeals of Southborough, 42 Mass. App. Ct. 921 , 923 (1997) (reasonable interpretations of zoning by-laws by local boards are entitled to deference); H.N. Gorin & Leeder Mgmt. Co. v. Rent Control Bd. of Cambridge, 18 Mass. App. Ct. 272 , 276 (1984). The Boards construction on remand of this provision of the Cambridge Ordinance was reasonable, because it fits comfortably within a range of proper meaning of the enacted words, and is supported by both decisional law and by zoning policies favoring the reduction of nonconformities.
Zoning by-laws must be construed reasonably. Green v. Board of Appeal of Norwood, 358 Mass. 253 , 258 (1970). Here, Azzams reading of the Ordinanceas leaving the commonly owned lots distinct for zoning purposes in the absence of some affirmative designation that the two lots be used, developed, or built upon as a unit--is not reasonable.
First, to the extent Azzam may continue to rely on an argument that the parcels, though united in common ownership and merged for zoning purposes, may nevertheless now be considered as independent for zoning purposes, this argument is unavailing; it was rejected by both this court and the Appeals Court. As this court concluded in its decision after trial, [Azzams] construction of the definition of lot is not consistent with the Ordinance as a whole. Azzams construction would render meaningless Section 5.15 of the Ordinance, which states: No lot or development parcel shall be changed in size, shape or ownership so that the dimensional requirements prescribed in this Ordinance are no longer satisfied. This provision shows that the Ordinance does not contemplate the ability of a landowner to redivide a merged lot by designation. Azzams reading of the Ordinance also is inconsistent with cases such as Asack, 47 Mass. App. Ct. at 736, which hold that [a] person owning adjoining record lots may not artificially divide them so as to restore old record boundaries to obtain a grandfather nonconforming exemption.
Moreover, I recognize that the current inquiry spurred by the Appeals Courts review of this case is not about redivision of land comprised of lots formerly held separately (which have become merged for zoning purposes), but on whether two lots used distinctly ever have come together for zoning purposes, absent a designation, notwithstanding that the two lots long have been owned by the same owners. The Board decided that, under the relevant provisions of the Cambridge Ordinance, no such opportunity to make that kind of designation ever has been available in the City of Cambridge. I decide that this aspect of the Boards decision is correct and is not to be annulled or modified by the court.
The Boards construction of the Cambridge Ordinance is reasonable, well-grounded in its words, and so should be accepted by the court. The Board is quite clear that the Cambridge Ordinance is intended to support and incorporate the general tendency of zoning law to weed out nonconformity, and to encourage lots to come into line with zoning law changes. As this court previously held, [t]he Ordinance simply does not contain an indulgent provision that preserves grandfathering of undersized lots despite common ownership. The Board well recognized that a basic purpose of zoning law is "to foster the creation of conforming lots." Murphy v. Kotlik, 34 Mass. App. Ct. 410 , 414 n.7 (1993). See generally Preston, 51 Mass. App. Ct. at 240 (grandfathering, despite common ownership, is available only when zoning by-laws are clearly indulgent). The Appeals Court in Planning Bd. of Norwell v. Serena, 27 Mass. App. Ct. 689 , 690 (1989), instructed that under the grandfathering provision of G. L. c. 40A, § 6, [t]he condition that the nonconforming lot not [be] held in common ownership with any adjoining land represents a statutory codification of a principle of long-standing application in the zoning context: a landowner will not be permitted to create a dimensional nonconfomity if he could have used his adjoining land to avoid or diminish the nonconformity. Similarly, in Sorenti v. Board of Appeals of Wellesley, 345 Mass. 348 , 353 (1963), the Supreme Judicial Court held that when a landowner made a transfer of title to a straw to take advantage of a grandfather clause similar to that of G. L. c. 40A, § 6, the owner could not avail himself of the nonconforming exemption unless he include[d] his adjacent land in order to minimize the nonconformity. The Sorenti court held that as long as the adjoining parcels were under the landowners control or within his power, he must merge them to minimize nonconfomity, despite any differences in ownership. Id.
It is against this backdrop of common law strongly weighted in favor of nonconforming lots coming into compliance with zoning law, and of evaluating commonly owned adjoining lots together for the purpose of measuring that compliance, that the Cambridge Ordinance must be read. The Board, ratifying the view of the Citys top zoning enforcer, concluded that the Ordinance fails to include any language countering the general tendency of the law to require merger. The mere mention of designation in the definition of lot was not intended to accomplish so broad an exemption. The Board decided that if the City Council had intended to override the common law doctrine of merger, it should have done so explicitly and should have provided more detailed provisions as to the process required for designation. The Cambridge Ordinance does not have any explicit mechanism for the designation mentioned in the definition of lot to be made. And there is no relevant practice or procedure which has existed in Cambridge for making that kind of designation.
I accept the Boards conclusion that the designation clause in the Cambridge Ordinances definition of lot has a genuine purpose--one very different from that advocated for by Azzam. The Board and the Commissioner explain that the clause exists to permit a property owner who owns contiguous lots, some or all of which are conforming, to elect to designate them for common use and development to take advantage of the combined as-of-right building envelope for the designated combined lots, a practice employed by owners of large lots seeking to design a project by massing the structures as they desire while satisfying setback and open space and other dimensional requirements on contiguous lots in common ownership. The Board explained that designations for this purpose are made when the common owner applies for a building permit. The purpose of the designation language, as the Board construes it, is to promote, rather than to skirt, compliance with the dimensional requirements of the local current zoning law. And once this designation is made, future development is limited on the rest of the overall site. This logical explanation gives meaning to the designation clause in the definition of lot, and defeats an argument that the clause would be superfluous unless read the way Azzam suggests.
Azzams reading of the designation clause leaves the Cambridge Ordinance wide open. If I were to accept Azzams approach, it effectively would mean that wherever there are two or more adjoining lots sub-sized under current zoning regulations, the lots keep their authorized status under superseded zoning rules unless the common owner affirmatively designates the lots for use or development as a unit. This interpretation of the Cambridge Ordinance would turn the law of prior-nonconformity in Cambridge on its head. It would make protection of dimensionally deficient lots the norm--the default position--instead of treating sub-sized lots as disfavored and worthy of elimination. The interpretation for which Azzam contends would, as the Board observed, leave the City looking like a jigsaw puzzle. The Boards conclusion, that such a result was not intended by the City Council and cannot be inferred from the language of the Cambridge Ordinance, is correct and will be upheld. [Note 6]
I conclude that the Board properly affirmed the revocation of certificates of occupancy for the dwellings at 220-222 Hurley Street because that lot had merged for zoning purposes with the lot at 224-226 Hurley Street. Given the meaning of the Cambridge Ordinance, neither Azzam nor the previous owners could lawfully have designated the undersized individual lots for different uses or to be built upon or developed separately. [Note 7] [Note 8] The lots have not retained separate identities. The structures at 220-222 Hurley Street violate Section 5.30.12 of the Ordinance.
Hoffman has standing to appeal the variance
I next address Hoffmans standing to appeal the variance decision, and then proceed to consider the sufficiency of Azzams variance. Under G. L. c. 40A, § 17, any person aggrieved by a decision of the zoning board of appeals . . . may appeal to the land court department . . . by bringing an action within twenty days after a decision has been filed in the office of the city or town clerk. A person aggrieved is one who suffers some infringement of his legal rights (or likely will suffer) because of a boards actions. Marashlian, 421 Mass. at 721; Circle Lounge & Grill, Inc. v. Bd. of Appeal of Boston, 324 Mass. 427 , 430 (1949). While the term person aggrieved is not to be narrowly construed, the plaintiffs injury must be more than speculative, and must be particularized, distinct from general community interests. Bell v. Zoning Bd. of Appeals of Gloucester, 429 Mass. 551 , 554 (1999) (stating that the violation must be special and different from the concerns of the rest of the community); Marashlian, 421 Mass. at 721; Nickerson v. Zoning Bd. of Appeals of Raynham, 53 Mass. App. Ct. 680 , 682 (2003); Harvard Square Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491 , 492-493 (1989) (requiring that plaintiff show a plausible claim of a definite violation of a private right, a private property interest, or a private legal interest). In addition, the injury claimed by the plaintiff also must be legitimately within the scope of the zoning laws. Marashlian, 421 Mass. at 722.
There is an initial, rebuttable presumption of standing for parties in interest which includes, the petitioner, abutters, owners of land directly opposite on any public or private street or way, and abutters to abutters within 300 feet of the property of the petitioner . . . G. L. c. 40A, § 11. If the presumption is rebutted, the burden then rests with the plaintiff to prove standing, which requires that the plaintiff establish by direct facts and not by speculative personal opinion that his injury is special and different from the concerns of the rest of the community. Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 27 (2006), (quoting Barvenik v. Aldermen of Newton, 33 Mass. App. Ct. 129 , 132 (1992)). 81 Spooner Road, LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692 , 700-701 (2012). While a plaintiff does not need to provide a preponderance of evidence at the trial of the case, the evidence provided must be of a type on which a reasonable person could rely to conclude that the claimed injury likely will flow from the boards action. Butler, 63 Mass. App. Ct. at 441. To meet the standard of credible evidence, the evidence offered must provide specific factual support for each of the claimed injury (quantitative), and must be of a type on which a reasonable person could rely (qualitative). Id. Conjecture, personal opinion, and hypothesis are insufficient. Id.
When I first decided this case, I dismissed Hoffmans appeal from the variance granted to Azzam, concluding that she would not suffer any harm of a particularized nature to a recognized interest protected by zoning law. I arrived at this conclusion based on my determination that the nominal additional parking that I have found will take place on public streets near Hoffmans home (as a result of the use that would flow from the variance decision) did not constitute the type of harm legally required to sustain a zoning appeal. I held that the fact that one or two additional cars might park on the nearby streets at certain times (but not others), did not rise to the level of particularized aggrievement required under G.L. c. 40A, §17, given that Hoffman currently has no right to park on Hurley Street in the immediate vicinity of her house, and currently encounters some occasional difficulty in doing so, due to the large number of Cambridge drivers authorized to park in this sought-after neighborhood.
My dismissal of Hoffmans zoning variance appeal on these grounds was vacated by the Appeals Court, which relied on the Supreme Judicial Courts closely-divided 1996 decision in Marashlian. The Appeals Court reminded me that in Marashlian, the Supreme Judicial Court held that even a diminution in on-street parking that would leave adequate parking available was sufficient to confer standing. 74 Mass. App. Ct. at 809. The Appeals Court held that it is not relevant that Hoffman lacks the exclusive right to park on her block. In the absence of the two additional dwelling units, she is, in fact, sometimes able to park on her block. Hoffman put forth credible evidence that if the two additional dwelling units become occupied, her ability to do so will be diminished or perhaps even extinguished.... Id. Her zoning appeal was reinstated.
I have considered the development of the law of zoning appeal aggrievement since the Appeals Court reviewed my initial decision in the case at bar. I have in mind, in particular, that in 2011, in Kenner, 459 Mass. at 122, a unanimous Supreme Judicial Court, none of whose members were on the court at the time Marashlian was decided, said that the adverse effect on a plaintiff must be substantial enough to constitute actual aggrievement such that there can be no question that the plaintiff should be afforded the opportunity to seek a remedy. To conclude otherwise would choke the courts with litigation over myriad zoning board decisions where individual plaintiffs have not been, objectively speaking, truly and measurably harmed. Put slightly differently, the analysis is whether the plaintiffs have put forth credible evidence to show that they will be injured or harmed by proposed changes to an abutting property, not whether they simply will be impacted by such changes. In 81 Spooner Road, LLC, the court reiterated that a defendant in a zoning appeal properly may challenge the aggrievement of a plaintiff (even one who is an abutter) with evidence establishing that the abutters allegations of harm are unfounded or de minimis. 461 Mass. at 702, citing Kenner, at 119-120. (emphasis added) Such evidence, if believed, would contradict the presumed fact of aggrievement and, thus, rebut the plaintiffs presumption of standing. 461 Mass. at 702-703.
I do therefore hold some expectation that were the Supreme Judicial Court to consider now the question whether a plaintiff such as Hoffman, who will face the modest effect on the on-street parking available to her which I have concluded will take place should the variance stand, is aggrieved within the meaning of the statute, the SJC might revisit its holding in Marashlian. The Court might conclude that the nature and extent of Hoffmans parking issues, as a result of the extra two dwelling units authorized by the challenged variance, constitute more of an impact and less of an injury or harm. The Court might well decide that the impact of Azzams development on the on-street parking nearby does not climb above de minimis. On the other hand, I am well aware that in Kenner and 81 Spooner Road, LLC the Supreme Judicial Court relied upon Marashlian without any overt effort to retreat from its holding.
I conclude that, whatever latitude I might have, were I considering the question of Hoffmans aggrievement in the first instance, to apply the principles of Kenner to the holding in Marashlian, I am not at liberty to decide the case before me in a manner inconsistent with the clear instruction of the Appeals Court when it heard Hoffmans appeal. I am unable to address the issue of Hoffmans aggrievement, because the Appeals Court has determined, in a binding way, that she does have standing. The Supreme Judicial Court turned down a request for further appellate review of the Appeals Courts published decision in the case now back before me.
Reopening the standing question would violate the doctrine of the law of the case. Trial court judges are required to order entry of a judgment that conforms to prior adjudication by the appellate court hearing the case. Wheatley v. Planning Bd. of Hingham, 10 Mass. App. Ct. 884 , 884 (1980); Carchidi v. Kalayjian, 264 Mass. 230 , 232 (1928). Remand instructions become the law of the case binding absolutely upon every tribunal and magistrate dealing with the cases, except one clothed with the power to overrule it and finally declare the law to be otherwise. Lunn & Sweet Co. v. Wolfman, 268 Mass. 345 , 349 (1929). I draw this conclusion notwithstanding that what is at issue here is the question of standing to bring a zoning appeal, a matter which the cases long have treated as going to the subject matter jurisdiction of the court. Kenner, 459 Mass. at 125; see also 81 Spooner Road, LLC, 461 Mass. at 700. Ordinarily the lack of subject matter jurisdiction is an open question, raisable at any time, even on appeal. However, given the procedural posture of this case, the prior review of it by the Appeals Court, and the declination of the Supreme Judicial Court to weigh in further, I conclude that the question of Hoffmans standing has been determined, in her favor, in a way which as a trial court judge I cannot revisit. Hoffmans standing is established, and I proceed to review the variance decision made by the Board after remand.
The variance is to be annulled
The Appeals Court decided that the variance initially granted to Azzam was insufficient as matter of law because the Board had not made the findings required by the statute. 74 Mass. App. Ct. at 810. The Appeals Court directed that this court return the variance question to the Board to amplify its reasons. The Appeals Court expressed no opinion whether the evidence put forward by Azzam could ... support the Boards findings. Id. at 810-811. On remand, as ordered, the Board held a public hearing, made findings, and unanimously voted to grant the requested variance, concluding that there was substantial hardship relating to the property at 220-226 Hurley Street, within the meaning of G. L. c. 40A, § 10, and that desirable relief in the form of a variance could be granted without substantial detriment to the public good, and without nullifying or substantially derogating from the intent or purpose of the Cambridge Ordinance. The Boards vote was based on its finding that there existed the following: an unusually shaped lot, soil conditions that would make development beneath the buildings impracticable, and the fact that the structures were already built.
This court must conduct a review of the Boards variance granting decision de novo, giving no weight to the facts as found by the Board. See Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 72 (2003); Devine v. Zoning Bd. of Appeals of Lynn, 322 Mass. 319 , 321 (1955). Although the court would need to hear evidence to make the necessary findings were the material facts to be in dispute, that is not the case here. The summary judgment record establishes no genuine dispute about any material fact. Hoffman has shown, on uncontested facts, that the variance was legally inadequate, entitling her to judgment as matter of law.
No person has a legal right to a variance . . . they are to be granted sparingly. Damaskos v. Board of Appeal of Boston, 359 Mass. 51 , 61 (1971). A decision granting a variance may be upheld only if all of the statutory prerequisites set out in G. L. c. 40A, § 10 have been met. Josephs v. Board of Appeals of Brookline, 362 Mass. 290 , 292 (1972). Under G. L. c. 40A, § 10, a local board of appeals may only grant a variance where it finds [a] 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, [b] 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 [c] that desirable relief may be granted without substantial detriment to the public good and [d] without nullifying or substantially derogating from the intent or purpose of such ordinance or by-law. Warren v. Board of Appeals of Amherst, 383 Mass. 1 , 9 (1981).
Even when an applicant meets the statutory criteria that would enable a zoning board, in its discretion, to grant a variance, it is not required to do so, because no one has a legal right to a variance. Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555 , 557-59 (1954). Additionally, a board decision granting a variance, without specific findings and reasons for the decision, is void on its face. See Warren, 383 Mass. at 9-10 (finding allowance of a variance without specific findings of necessary conditions is invalid). The Boards decision cannot be disturbed unless it is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary. Britton, 59 Mass. App. Ct. at 72; Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349 , 355 (2001) (and cases cited).
"[T]he burden rests upon the person seeking a variance and the board ordering a variance to produce evidence at the hearing . . . that the statutory prerequisites have been met and that the variance is justified." Warren, 383 Mass. at 10; Dion v. Board of Appeals of Waltham, 344 Mass. 547 , 555-556 (1962). As the recipient of the variance, Azzam bears the burden of establishing for the court the validity of the variance by producing evidence that each of the mandatory statutory prerequisites have been met. If Azzam cannot come forward, when challenged by the summary judgment motion against him, with a proper evidentiary showing of his ability to put in the requisite proof at trial, summary judgment against him is required, and the case cannot proceed to trial.
Azzam argues that he suffered hardship as a result of unique soil conditions and shape of the lots which do not generally affect the zoning district. He cites a variety of specific circumstances relating to the lands soil and shape: high concentrations of clay in the soil; difficulties with soil compaction; a high water table requiring the installation of a drywell, sump pumps, and a drainage system; and, viewing 220-226 as one lot, that it will be oddly shaped because it would have an exceptionally large side-yard if he is unable to maintain the challenged structures at 220-222 Hurley Street. Azzam claims that without a variance, the unique conditions of the property will cause him to suffer substantial financial hardship, as he will have to remove the units or otherwise go to expensive lengths to achieve zoning compliance. Finally, Azzam argues that allowing the two new single-family units on the lot at 220-222 Hurley Street to be occupied would not be a substantial detriment to the public good and would not nullify or substantially derogate from the intent or purpose of the Cambridge Ordinance, because the units are consistent with the character and density of the surrounding neighborhood and are accompanied by five new off-street parking spaces.
I do not need to hear evidence to make any findings of fact to be able to determine the validity of Azzams claims about the soil conditions and shape of the property. This is because, even giving Azzam all reasonable inferences, as matter of law his claimed grounds provide insufficient justification for a variance. To support a variance based on soil conditions or shape under G. L. c. 40A, § 10, there must exist some meaningful nexus between the specific circumstances claimed to create the hardship, and the relief that a variance would provide. The Appeals Court in Mitchell v. Board of Appeals of Revere reversed a Superior Court decision upholding the grant of a variance. The Appeals Court held that the hardship there was not owing to the topography of the land because the slope of the land did not prevent the erection of a house; rather the only hardship arose from the fact that the lot was 2,556 square feet, too small to qualify as a buildable lot under the towns zoning ordinance requiring a minimum of 3,000 square feet. 27 Mass. App. Ct. 1119 , 1120 (1989), further app. review denied, 405 Mass. 1203 (1989).
Similarly here, there is no logical or legal reason that Azzam should be granted a variance allowing him to build and occupy two residential units more than the size of his land permits, because the soil on his land consists of clay or because his pre-existing units at 224-226 Hurley Street would have a large yard. There is no meaningful nexus between the soil or shape of the lot and the relief provided by the variance. Here, the only reason that Azzam needs a variance to maintain the two residential units at 220-222 Hurley Street is that the overall lot, 220-226, is undersized and thus under the Ordinance will not accommodate these extra dwelling units; the combined locus lacks the area needed to build the additional units given the Ordinances requirement of 1,500 square feet per dwelling unit. At bottom, Azzams issue is that the land he owns is too small on which to build lawfully. An undersized lot, however, is not a valid basis for a variance. McGee v. Board of Appeal of Boston, 62 Mass. App. Ct. 930 , 931 (2004); Warren, 383 Mass. at 1. [Note 9] In these circumstances, when the lot area deficiency does not relate to any of the statutory prerequisites, the Board has no authority under G.L. c. 40A, § 10 to grant a variance. [Note 10]
The variance is not only legally insufficient because Azzam has not demonstrated that a need arises from circumstances relating to the soil conditions, shape, or topography. He also has failed to demonstrate a substantial hardship, financial or otherwise, which meets the requirements of G. L. c. 40A, § 10. The substantial hardship serving as the basis for a variance cannot be personal; it must be one especially affecting such . . . parcel. Dowd v. Board of Appeals of Dover, 5 Mass. App. Ct. 148 , 156 (1977). To uphold a variance, the court must determine that the grant of a variance be based only upon circumstances which directly affect the real estate and not upon circumstances which cause personal hardship to the owner. Huntington v. Zoning Bd. of Appeals of Hadley, 12 Mass. App. Ct. 710 , 715 (1981). Here, the financial hardship Azzam relies upon is not unique to the parcel of land, so that it would apply to any owner of the property as a result of the propertys physical condition; rather the hardship is personal to Azzam. See id. at 715-16. And while the statute does include financial hardship among those which will support the grant of a variance, the cases are clear that this does not mean that every inability to maximize the possible economic gain theoretically available to be extracted from a lot constitutes a valid hardship. We may infer that it would be of greater advantage to him if he were permitted to erect a second house on this lot. However, we do not construe the use of the words financial or otherwise in the statute to mean that a deprivation of potential advantage constitutes a substantial hardship. Bruzzese, 343 Mass. at 424.
Moreover, the hardship is one of Azzams own creation. He made the choice to construct two additional dwelling units at 220-222 Hurley Street which violate, as to the entire lot of land he owns, the density regulations of the Cambridge Ordinance. That he did so perhaps in reliance on the erroneous issuance of permits by City officials (who did not put a stop to the work until it was in place), while explaining how he came to be in such a precarious position, does not allow the Board to issue a variance as an act of grace. It is not clear just how innocent Azzam may or may not have been in arriving at his predicament (a question about which the parties may well be in serious dispute). Azzam does have considerable experience as a developer and in the arena of Cambridge building and zoning laws. But, even granting Azzam the inference that he was led to build based on justified expectations that the 220-222 parcel had a separate zoning status, his error, no matter how compounded it may have been by the officials who considered his applications and approved them without raising concern until the buildings were built, rests on him. Municipalities are not estopped by the actions of their zoning officers. Nichols v. Board of Zoning Appeals of Cambridge, 26 Mass. App. Ct. 631 , 634 (1988). See Ferrante v. Board of Appeals of Northampton, 345 Mass. 158 (1962)([t]he governmental zoning authority may not be forfeited by the action of the local officers in disregard of the statute and the ordinance. The public has an interest in zoning that cannot thus be set at naught. The plaintiff landowner is presumed to have known of the invalidity... and to have acted at his peril. ) 345 Mass. at 163, quoting Zahodiakin Engr. Co. v. Zoning Bd. of Adustment, 8 N.J. 386, 396 (1952).
Even though the Nichols case, referred to by the Appeals Court in the instant case, 74 Mass. App. Ct. at n. 4, suggested that a landowner might have its special permit application considered by the local board with the permission to have the board take into account the good faith reliance of the plaintiffs on the actions of the citys officials..., 26 Mass. App. Ct. at 635, the Appeals Court in the case at bar did not direct that that type of consideration take place on remand to the Board. Instead, the Appeals Court disclaimed on this point, express[ing] no opinion about these factual contentions, or their potential legal significance. ... No questions are presented in this appeal concerning the good faith reliance of Azzam on the actions of the citys officials. 74 Mass. App. Ct. at n. 4. The Board here was under no judicial instruction that it extend a variance to Azzam because he had relied to his substantial detriment on the manner and timing of the approval and subsequent revocation of his permits. And even considering the Board to have taken those factors into account, weighing them in Azzams favor in granting him the variance, the court is aware of no authority that would allow a zoning board of appeals to grant an otherwise fatally flawed variance to redress actions taken in error by municipal officials in granting building and occupancy permits. The requirements for a lawful variance are strict and before a variance may be granted, all the requirements of G.L. c. 40A ... must be met. Ferrante, 345 Mass. at 161. While the grant of a special permit might involve as to some of its elements a bit more discretion of the part of the board hearing the application, and so might in unusual circumstance present an appropriate opportunity for the board at least to consider, to some degree in exercising its discretion, good faith reliance by the applicant on actions of municipal officials, the standards for issuing a variance are more unbending. I do not consider the Appeals Court in this case to have instructed that the Board, in acting on the variance request, had any latitude to dispense with the legal requirements for a lawful variance. And I do not read the Boards decision after remand to indicate that it felt itself under any such obligation.
The Boards decision on remand, granting the variance, must be annulled because, as matter of law, and giving Azzam every reasonable inference, there were no legally proper grounds for the grant. Azzam has not been able to show that valid statutory grounds for a variance might even plausibly be proved at trial. His claimed hardship is personal, financial, and self-created, but is neither owing to circumstances relating to the soil conditions [or] shape of the property, nor unique to his specific land. Azzams variance must be annulled; the Boards grant of the variance cannot be upheld if even one of the statutory requisites is not met. See Josephs, 362 Mass. at 292.
Summary judgment is GRANTED to the Board in the enforcement action appeal by Azzam. The decision of the Board in the enforcement action will be upheld.
Summary judgment is GRANTED to Hoffman in the variance appeal. The Boards decision on remand granting the variance is legally untenable, and will be annulled.
[Note 1] This parcel is the one referred to in the decision of the Appeals Court, see below, as the second parcel and as 220-222 ½ Hurley Street.
[Note 2] Described in the Appeals Court decision as the first parcel, and as 224-226.
[Note 3] Section 5.30.12
[Note 4] The City and its officials, including the Board, at times seem to have taken the view that the locus at 220-226 Hurley Street totaled 7,100 square feet, although the record instruments would put the area of the two parcels combined at 6,500. Whatever the source or even the accuracy of the slightly larger area at times attributed to the site, the difference is immaterial. Under the relevant Ordinance provisions, the number of dwelling units on the site after Azzam completed his work would not pass muster, treating the entire locus as one lot for zoning purposes, whether it contained either 6,500 or 7,100 square feet.
[Note 5] When I first decided this case, I determined that the two lots are to be treated as a single lot for zoning purposes under the common law merger doctrine. I did take up (and emphatically rejected) an argument by Azzam, that, despite the long common ownership of the two lots, the two parcels did not merge because they retained separate identities throughout the period that they were owned by the Gouveias. I explained that separate identities if at all times retained, might in exceptional cases fend off the indicated result of merger for zoning purposes, citing to Lindsay and its progeny, Asack v. Board of Appeals of Westwood, 47 Mass. App. Ct. 733 , 736 (1999). By this reference, I considered the teaching of Lindsay that, with an accommodating local zoning law, particularly one which defined a lot for zoning purposes by reference to its description in the recorded deeds and plans, and preserved rights for lots set out in prior recorded instruments, a court might reach the conclusion that now nonconforming lots separately described in the land records might not have come together for zoning purposes. While Lindsay of course overturned a trial court determination that the lots involved there were not, given their conveyancing history, established as a new [combined] lot for zoning purposes, the Supreme Judicial Court did evaluate whether, on the way the lots had been conveyed and described in the record instruments, they retained their separate identities all along for zoning purposes, in light of the indulgent definition in the local law which rested on the recorded descriptions. This is a close analysis courts at times must undertake when reviewing local zoning decisions where a developer of adjoining parcels contends that they have, under local law provisions, at all times in their conveyancing histories been kept from merging for zoning purposes. Compare Jones v. Zoning Bd. of Appeals of Brockton, 18 LCR 358 (2010) affd (Appeals Ct. No. 10-P-1602) with Dalkouras v. Zoning Bd. of Appeals of Brockton, 20 LCR 10 (2012)(appeal pending Appeals Ct. No. 2012-P-0371). It was only for this limited (and, from Azzams perspective, unavailing) purpose that I considered the Azzam argument that his lots were not merged as a result of any maintenance of their separate identities. Because the record, given the definitions of the Ordinance and the conveyancing history of these lots, did not support a conclusion that there was any separately maintained identity within this narrow exception, I rejected this argument by Azzam. I noted that this exception, which deviates from the ordinary rule favoring merger as a matter of policy, is disfavored and not often justified. I ruled that there was no basis for the claimed exception in this case. The Ordinance did not sufficiently indulge the perpetuation of distinct zoning status for nonconforming lots based on their separate lot conveyancing descriptions and chronology.
When the Appeals Court considered the case at bar, it focused on a further concern about the application of the Cambridge Ordinance to the Azzam land. The Appeals Court addressed the definition of lot in Article 2.000 and the question whether, on what took place here, there might (or might not) have been a designation by a lots owner that it be used, developed or built upon as a unit. The Appeals Court posited that this designation might never have occurred, given the history of the land involved-- first under the Gouveias ownership, and then under Azzams--and that without such a designation, the Ordinance might guard the lots against the usual and favored approach of the common law of zoning--that the two lots be found to have merged for zoning analytical purposes. The Appeals Court directed that the Board take this question up and consider it with more direct attention than the Board earlier had given it. The Board having done so, and having decided that no such designation legally ever has been available to protect the Azzam land from the common law merger doctrine, I now must assess the legal correctness of that decision by the Board.
[Note 6] The Boards interpretation of the designation clause in the lot definition is consistent with the Ordinances own grandfathering provisions--those on which Azzam necessarily depends in arguing that the two parcels have been granted indulgence by the City to protect them against otherwise applicable later adopted zoning rules of increased strictness. Azzam relies on the provision of the Ordinance put in place in 1943 when the minimum lot size became 5,000 square feet. The Ordinance, to indulge those who already had lots of less than the required area... and which have been duly recorded by plan or deed with the Registry... preserved in 1943 certain rights. The 1943 law gave dispensation to such lots as to certain dimensional regulations being tightened up at that time: the lot area and width regulations need not apply.... But this forgiveness was not unqualified. The law went on to carve out an exception to this grandfathering: ... except that the ratio of the gross story area to lot area shall conform. (emphasis added) The current grandfathering section, codified in the Ordinance at Section 5.21.1, does exempt lots on prior recorded deeds or plans which fail to meet newly imposed lot area requirements from compliance with minimum lot size and lot width regulations [--which] need not apply... But this current exemption too comes with a very important caveat: but the floor area ratio and the minimum lot area regulations for each dwelling unit shall be applicable. (emphasis added) The history of grandfathering allowed by the City in its zoning ordinances shows a carve-out from that grandfathering for a particular type of regulationthat which regulates the number of square feet the lot must have for each dwelling unit and for each square foot of living area. This one aspect of dimensional regulation is considered in Cambridge to be of highest importance, and is excluded from the indulgent grandfathering which otherwise may be conferred on prior recorded lots. Given this historic focus of the Ordinance on keeping density under control even as to prior recorded lots, a focus which continues in the current iteration of the grandfathering provisions, it is not plausible that the City Council would have sought to protect prior recorded lots which exceed current density rules in an enigmatic way, merely by use of the designation clause of the lot definition in Article 2.000. The Ordinance, while grandfathering against some dimensional shortcomings, requires earlier created lots to keep up with the newly enacted minima of lot area needed for each dwelling unit. This regulation is the very one which the City contends Azzams project violates. This lot area per dwelling unit requirement, which is central to the dimensional rules in the Ordinance, ought not be vitiated in the case at bar by a strained construction of the designation clause contained in the definition of a lot. The Board correctly refused to read the designation clause to mean that, simply by not making a designation, an owner may build on commonly-owned subsized lots more dwelling units than the ratio allows. The Boards decision, which rejects this interpretation, is consistent with the Ordinances treatment of grandfathering rights and sharp focus on upholding the minimum lot area needed per dwelling unit.
[Note 7] I uphold the Boards determination that the Ordinance does not, as Azzam contends, sanction a situation where prior recorded adjoining undersized lots, once held in separate ownership, keep their separate prior nonconforming lawful status, even as to future new improvement by a common owner, simply because noone has made a overt designation that the parcels be united for use or development. Azzams approach, I conclude, is a reading of the lot definition which would swallow up the dimensional rules of the Ordinance, and keep them from regulating new buildout on the parcels, something the City Council did not contemplate when it put the definition in place. Even were I to accept Azzams construction of this provision, however, I would agree with the Boards decision because there is no way, on these uncontested facts, that I could find that Azzams development plan would qualify for protection under his reading of the designation clause. There is no way that the manner in which Azzam and a representative of his sellers sought permits from the City for his project which could reasonably be seen as consistent with his current position on the meaning of the lot designation language of the Ordinance. While the 220-222 lot historically had been used distinctly for commercial parking pursuant to a long-expired variance granted in 1950, had been fenced off from the land the Gouveias also owned next door, and had been taxed separately, the applications that Azzam made to the City for permits were clear that that pattern of separate use was contemplated to end, and that Azzam planned a unified development for all the land he was acquiring from the Gouveia heirs. The plan was to have a development that was unified, with a driveway and parking spaces straddling the lot lines, the fence now gone. Even crediting Azzams position that the two parcels never before had merged for zoning purposes while long in common ownership under his sellers family, and never previously had been designated for unitary use or development, there is no reasonable view of the way the applications for permits were presented to the City that would support Azzams view that, in the absence of such a formal designation, the two parcels remained as separate zoning lots. While it is true that there were separate applications for permits submitted, the reality on the ground is that what Azzam proposed to build--and did build--was inconsistent with the continuation of any separate zoning status for the two lots, and bespeaks only an intention to have a single development on a single lot which united the two once separately-described parcels. On the uncontested facts, there is no reasonable inference I could indulge in Azzams favor on this point.
[Note 8] In response to an inquiry I made of counsel, the Citys Assistant Solicitor reported, without any objection from Azzam, that the designation clause had been added to the Ordinance in its 1962 version. This chronology makes it even more difficult for Azzam to rely on the lack of a designation to show that the two lots never were merged for zoning purposes. The lots came into common ownership no later than 1950. At that time, this common ownership, given the generally applicable common law principles of merger, would have dictated that the two lots now be treated as a single unit for purposes of analyzing the lands compliance with the dimensional requirements of the Ordinance. It was only in 1962 that the possibility first arose that an owner might designate that land be used, developed or built upon as a unit. By 1962 the two parcels on Hurley Street had been owned in common for a dozen years. It is not plausible that this 1962 amendment of the Ordinance was intended to mean that these two subsized adjoining lots, in common ownership for that long (and during that time subject to common law zoning merger principles) were to be treated going forward as separate zoning lots. There is nothing in the 1962 amendment adding the designation clause to the definition of a lot to show that the change was intended to be retroactive, so as to undo the common law merger of commonly owned lots which already had taken place.
[Note 9] There is nothing more to the shape of the land, on which the Board relied in dispensing the variance to Azzam. Nothing in the record shows that his land is other than a simple rectangle, unremarkable in the neighborhood.
[Note 10] The variance does not even address a situation in which a landowner is kept from all meaningful opportunity to develop his or her land. See Bruzzese v. Board of Appeals of Hingham, 343 Mass. 421 , 424 (1962): The zoning by-law does not deprive the plaintiff of the use of his land. (upholding a boards denial of a variance requested to divide land, already improved with a residence, into two lots to facilitate erection of a second dwelling without meeting dimensional requirements). Having agreed in the appeal of the enforcement action with the Board that the 220-222 and the 224-226 parcels do indeed constitute one lot for zoning compliance purposes, I necessarily must consider that Azzams unified lot does already contain four dwelling units. The variance would effectively allow him to maintain a total of six dwelling units on a zoning lot already permissibly improved with four.