ROGER CAMPBELL vs. ROCKPORT ZONING BOARD OF APPEALS and ITS MEMBERS, CHARLES W. CHRISTOPHER, JOYCE P. FOSSA, PETER BERGHOLTZ, JOHN N. REES and LARS-ERIK WIBERG.

Plaintiff filed his unverified Complaint on October 22, 2012, pursuant to G. L. c. 40A, § 17, appealing a decision of Defendant Rockport Zoning Board of Appeals (the “ZBA”) which denied Plaintiff’s application for a variance (the “Variance”) for property located at 38 Jerden’s Lane Extension in Rockport, MA (“Locus”). [Note 1] The ZBA filed its Answer on November 20, 2012. A case management conference was held on November 26, 2012.

Plaintiff filed his Motion for Summary Judgment on June 17, 2013, together with supporting memorandum and Statement of Undisputed Material Facts, and Affidavit of Vaclav V. Talacko, a registered professional engineer with Hancock Associates, Inc. (the “Talacko Affidavit”). Defendants filed their Cross-Motion for Summary Judgment on July 26, 2013, together with supporting memorandum, Statement of Additional Material Facts, and Affidavit of Eric Hutchins, a former member of the Rockport Planning Board and the Watershed Protection Committee (the “Hutchins Affidavit”). Plaintiff filed his Response on August 5, 2013. A hearing was held on all motions on August 7, 2013, and the matter was taken under advisement.

I find that the following material facts are not in dispute:

1. Kenneth Rowe (“Rowe”) divided a large tract of land consisting of approximately 122,708 square feet (the “Larger Parcel”) into three lots shown as shown on plan entitled “Plan of Land Jerden’s Lane Rockport, Mass.” dated December 26, 1989, and prepared by James I. Klopotoski (the “Division Plan”). The Division Plan created Lot 1, consisting of 14,650 square feet; Lot 2, consisting of 13,658 square feet; and Lot 3 (Locus), marked as 2+ acres. Lot 1, Lot 2, and Locus are also shown on an “Approval Not Required” plan of land entitled, “Compiled Plan of Land Jerden’s Lane Rockport Mass,” dated December 10, 1992, and prepared by James I. Klopotoski (the “ANR Plan”). Lot 1 and Lot 2 both contain mostly uplands and these parcels were deeded out by Rowe in 1989 and 1994. [Note 2]

2. Rowe conveyed Locus to Plaintiff by deed dated April 7, 1993, and recorded with the Essex County South District Registry of Deeds (the “Registry”) at Book 11825, Page 201. Locus is a vacant lot located, pursuant to the Rockport Zoning By-law (the “Zoning By-law”), in the “Residential” zoning district and the Water Supply Protection Overlay District (the “Overlay District”). [Note 3] The regulations pertaining to the Overlay District are contained within Section VII of the Zoning By-law. Locus is also located within the Saw Mill Brook Watershed (the “Watershed”).

3. Section VII(6)(d)12 of the Zoning By-law prohibits:

Construction of any building or structure or other permeable surface lying within 100' of areas subject to protection under the Massachusetts Wetlands Protection Act [the “Wetlands Protection Act”], and the regulations adopted thereunder, as amended, and/or resource areas subject to protection under the [Wetlands By-law] as amended, excluding local buffer zone resource area (lands with 100' of any wetland), whichever is more restrictive.

Section VII(6)(d)13 of the Zoning By-law prohibits:

Any disturbance to natural vegetation or soils lying within 50 feet from any area subject to protection under the Massachusetts Wetlands Protection Act and the regulations adopted thereunder, as amended, and/or resource areas subject to protection under [Wetlands By-law], as amended, excluding local buffer zone resource area (lands within 100' of any wetland), whichever is more restrictive.

4. On March 9, 2005, Plaintiff filed a Notice of Intent, pursuant to the Rockport Wetlands Protection By-law (the “Wetlands By-law”), with the Rockport Conservation Commission (the “ConCom”) relative to the construction of a single-family house, deck, gravel driveway and site grading on Locus (the “Project”). [Note 4] The Project will be connected to the municipal sewer in Jerden’s Lane.

5. Locus is also shown on plan titled “Permit Site Plan in Rockport, MA” dated December 9, 2005, and prepared by Hancock Associates (“Hancock”), revised January 10, 2008 (the “2008 Plan”). [Note 5] Pursuant to the 2008 Plan, Locus contains 2.16 acres, and all of Locus except for an approximately 2,500 square foot parcel in the northwest section of Locus adjacent to Jerden’s Lane Extension (where the access road is located) is in the Overlay District.

6. On February 7, 2008, Plaintiff received an Order of Conditions (the “Order of Conditions”), with forty-five conditions, from the ConCom pursuant to the Wetlands By-law for the Project, as shown on the 2008 Plan. [Note 6] [Note 7] The Order of Conditions is recorded with the Registry at Book 29299, Page 121. Due to a sewer moratorium, construction could not proceed. Condition 3 in the Order of Conditions states: “This Order does not relieve the applicant or any other person of the necessity of complying with all other applicable federal, state, or local statues, ordinances, bylaws, or regulations.”

7. On March 29, 2012, Plaintiff applied to the ZBA for the Variance to allow the Project in the Overlay District. The house and deck will be located sixty-five feet from the bordering vegetated wetlands (the “BVW”). The access driveway and utility easement will be located within fifty feet of the BVW. Attached to the application, Mr. Talacko submitted a letter and a stormwater drainage analysis. All dimensional aspects of the Project meet the requirements of the Zoning By-law. By decision dated October 2, 2012 (the “ZBA Decision”), the ZBA denied the Variance, finding that preparation for and construction in the protected area would be a detriment to the public good and substantially derogates from the intent and purpose of the By-law. Such intent and purpose is to maintain the protection of the public water supply by not permitting, as specified in Section VII,6,d,12 of the Rockport Zoning By-law, the construction of any building or structure and, as specified in Section VII,6,d,13, any disturbance to natural vegetation or soils lying within 100 feet from any area resource area subject to protection under the Rockport Wetlands By-law in the Water Supply Protection Overlay District. [Note 8]

The ZBA Decision also stated that “Rockport is more subject to drought than most communities in Massachusetts due to essentially impervious granite underlying the surface soil...For the Town of Rockport, the Sawmill watershed is critical for collection of storm and melt water.”

8. The MA-DEP has recognized in the past that the Town has experienced a deficit in available water supply and has allowed the diversion of the Watershed to ameliorate this situation.

9. The Talacko Affidavit states that the Watershed is considered an emergency water supply only in a drought, and that Locus does not directly touch the Watershed. The Talacko Affidavit also states that any drainage from the wetlands on Locus is carried via an unnamed intermittent stream to the Watershed. According to Talacko, the intermittent stream runs dry during a drought, and therefore any drainage from Locus during a drought could not run from Locus via the intermittent stream and into Saw Mill Brook. The Talacko Affidavit concludes: “[Locus] will not contribute any flow to the emergency water supply intake at Sawmill Brook.” The Hutchins Affidavit does not dispute this statement.

10. The Hutchins Affidavit states that the Overlay District has, amongst its purposes, “the protection of both existing and potential sources of drinking water supplies...Although the Town has a [Wetlands By-law, the Overlay District] serves a separate purpose of protecting existing and potential water supply sources from possible sources of contamination that are not necessarily prohibited or regulated by the [Wetlands By-law].” Hutchins attested that this objective is accomplished through regulations in the Overlay District that are not similarly imposed by the Wetlands By-law or the Wetlands Protection Act. [Note 9] The Hutchins Affidavit also states that Saw Mill Brook has been used on occasion as an emergency water supply during periods of drought.

**************************

Plaintiff argues that the ZBA Decision did not have proper findings of fact required by G.L. c. 40A, § 15. Plaintiff also argues that he is entitled to the Variance because Locus and the Project meet the variance standards pursuant to the Zoning By-law and the state statute (G.L. c. 40A, § 10). Defendants contend that it made all necessary findings of facts. Defendants also argue that the Variance was not warranted and does not meet the requirements of the Zoning By-law or the state statute.

I. Standard of Review:

“[T]he judge is required to hear [an appeal pursuant to G.L. c. 40A, § 17] de novo and to determine the legal validity of the board’s decision concerning the variance upon the facts found by the judge.” Guiragossian v. Board of Appeals, 21 Mass. App. Ct. 111 , 114 (1985). Even if reasonable minds can reach differing conclusions from the evidence, the decision of the board must be upheld. Auburn v. Planning Bd. of Dover, 12 Mass. App. Ct. 998 , 999 (1981). A variance constitutes extraordinary zoning relief. “[A] judge can seldom, if ever, grant a variance which has been refused by a zoning board of appeals.” Burzzese v. Bd. of Appeals of Hingham, 343 Mass. 421 , 423 (1962), quoting Cefalo v. Board of Appeal of Boston, 332 Mass. 178 , 181 (1955). The denial of a variance exceeds a board’s authority only when the variance has been denied solely on a legally untenable ground or when the decision is unreasonable, whimsical, capricious, or arbitrary. DiGiovanni v. Board of Appeals of Rockport, 19 Mass. App. Ct. 339 , 349 (1985).

“Even where a board could grant a variance, it is within the board’s permissible discretion not to do so.” Stewart v. Town of Dracut Bd. of Appeals, 11 LCR 324 , 326 (2003), citing Zaltman v. Bd. of Appeals of Stoneham, 357 Mass. 82 , 484 (1970). Under these circumstances, provided that “any reason on which the board can fairly be said to have relied has a basis in the trial judge’s findings and is within the standards of the zoning by-law and the Zoning Enabling Act, the board’s action must be sustained regardless of other reasons which the board may have advanced.” S. Volpe & Co. v. Bd. of Appeals of Wareham, 4 Mass. App. Ct. 357 , 359-60; Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349 , 356 (2001).

II. Findings of Fact by the ZBA

Plaintiff contends that the ZBA did not make proper findings of fact in the ZBA Decision. Defendants state that the ZBA Decision contains sufficient findings of fact in support of the denial of the Variance. G. L. c. 40A, § 15, states that a board shall make a detailed record of its proceedings and set forth “clearly the reason for its decision and of its official actions.” The specific findings necessary to satisfy the requirements for granting a variance are not met by a ‘mere repetition of the statutory words.’” Wolfson v. Sun Oil Co., 357 Mass. 87 , 89 (1970) (emphasis added). “‘[T]he requirements for findings which support the grant of a variance or special permit are rigorous...’ Gamache v. Acushnet, 14 Mass. App. Ct. 215 , 220 (1982). However, the refusal of a board to grant a special permit...does not require detailed findings by the board.” Schiffone v. Zoning Bd. of Appeals, 28 Mass. App. Ct. 981 , 984 (1990). “Even when a zoning board of appeal cites no particularized reasons or any specific evidence for its denial decision, its action will be upheld...if a rational basis for the denial exists which is supported by the record.” Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349 , 356 (2001).

It is clear that rigorous fact finding standards apply only to the grant, rather than denial, of zoning relief. Even so, the ZBA Decision does not merely mimick the language contained in G.L. c. 40A, § 10. The ZBA Decision notes that the Project is located in the Overlay District and is also subject to the jurisdiction of the ConCom. The ZBA Decision further states that the Project proposes to comply with the fifty foot MA-DEP guidelines but seeks a variance from the 100 foot wetlands buffer imposed by the Zoning By-law in the Overlay District. The ZBA Decision also stated that “Rockport is more subject to drought than most communities in Massachusetts due to essentially impervious granite underlying the surface soil...For the Town of Rockport, the [Watershed] is critical for collection of storm and melt water.”

The ZBA Decision then ruled “that preparation for and construction in the protected area would be detrimental to the public good and substantially derogates from the intent and purpose of the By-law” and quotes language directly from the Zoning By-law. Even though Plaintiff argues that the ZBA did not take the evidence from its expert, Talacko, into consideration, it should be noted that “the [ZBA] was not required to credit the opinion of the plaintiffs’ expert even though it was uncontradicted.” Pollard v. Conservation Commission of Norfolk, 73 Mass. App. Ct. 340 , 349 (2008). The ZBA’s expert, Hutchins, supplied evidence as to legitimate concerns of the Overlay District. Finally, as noted, supra, the ZBA was not required to make rigorous findings of fact to support the denial of the Variance. See Schiffone, supra, at 984.

Based on the foregoing, I find that the ZBA Decision is not facially invalid for failure to make necessary findings.

III. Validity of the ZBA Decision:

G. L. c. 40A, § 10 states the requirements for a variance, as follows:

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 bylaw 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 bylaw 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 bylaw. G.L. c. 40A, § 10.

The burden of proof is on Plaintiff to produce sufficient evidence proving that he meets the statutory and local requirements of a variance. See Warren v. Bd. of Appeals of Amherst, 383 Mass. 1 , 9 (1981). “Since the requirements for the grant of a variance are conjunctive, not disjunctive, a failure to establish any one of them is fatal.” Guiragossian v. Bd. of Appeals of Watertown, 17 Mass. App. Ct. 423 , 427 (1984). Plaintiff contends that Locus has unique soil conditions because Locus consists of primarily wetlands and is located in the Overlay District. Plaintiff further contends that he will suffer a hardship because Locus could not be developed for any use without the Variance. Plaintiff further argues that the issuance of the Variance will not be detrimental to the public good and will not derogate from the purpose of the Zoning By-law. Defendants argue that Plaintiff has not satisfied his burden of proof on any of the elements of a variance.

A. Unique Soil Conditions, Lot Shape, or Topography:

For a variance to be granted, the circumstances related to the soil conditions, shape, or topography of the property much be “peculiar” to Locus. See Bicknell Realty v. Bd. of Appeals of Boston, 330 Mass. 676 , 680 (1953). If there are other properties located within the same zoning district as the subject property that have similar topography, soil, or shape, the first criterion to obtain a variance is not fulfilled. Kirkwood v. Bd. of Appeals of Rockport, 17 Mass. App. Ct. 423 , 426 (1984).

Plaintiff contends that Locus has unique soil conditions and topography because nearly the entirety of Locus consists of wetlands and wetland buffer area. [Note 10] [Note 11] Plaintiff contends that the abutting and surrounding properties do not have the “abundance” of wetlands similar to Locus. As Defendants point out, other than his bare assertion, Plaintiff has submitted no evidence that any abutting or adjacent properties do not consist of wetlands or buffer area. See Stewart, supra, (increase in amount of wetlands on site and reducing amount of usable area does not make locus unique or generally different from zoning district in which it is located); Boyce v. Tracey, 13 LCR 470 , 474 (2005) (although wetlands comprising back half of lot pose serious obstacle to development, plaintiff not entitled to variance as wetlands extend to neighboring lots). The parties have presented little evidence as to whether wetlands extend to neighboring lots or exist within the Residential zoning district. This court is hard pressed to believe that Locus is the only parcel of land in the Town that consists of substantial wetlands. Defendants assert that Lot 1 and Lot 2, as shown on the Division Plan, contain “mostly uplands,” implying that those lots also consist of some wetlands. [Note 12] It is also likely that other lots within the Overlay District contain wetlands as well. Moreover, the burden is on Plaintiff to prove unique soil conditions. It is clear that Plaintiff has failed to meet this burden. Finally, it seems that Plaintiff’s harm relates to the zoning restrictions, i.e. the no-build provisions in the Overlay District. Where the only impediment to building is the zoning by-law, a lot owner should not be entitled to a variance. Stewart, supra, at 326. In any event, I find that Plaintiff has not met his burden to demonstrate that the soil conditions, shape, or topography of Locus are unique or peculiar.

B. Hardship:

With respect to alleged hardship, Plaintiff claims that Locus cannot be developed without the Variance (or any variance for that matter). Defendants claim that any hardship was self imposed by Plaintiff’s predecessor. Locus was originally part of the Larger Parcel. The Larger Parcel was divided into three lots with Lot 1 and Lot 2 consisting of uplands and less wetlands and buffer zone. In this regard, Defendants contend that any hardship was brought about by the creation of the two upland lots and leaving Locus as residual, unbuildable land. “The division of that property into two nonconforming lots did not create a substantial hardship especially affecting the vacant lot, even though the latter could not be built upon, as it could have remained a part of a conforming lot.” Raia v. Bd. of Appeals of North Reading, 4 Mass. App. Ct. 318 (1976). Although the case at bar does not involve two nonconforming lots, the same logic applies. The Larger Parcel may have been subdivided differently, or possibly into only two lots, avoiding any zoning issues relating to frontage (as in Raia) or relating to wetlands (as in the case at bar). As such, I find that Plaintiff has not proven a substantial hardship. [Note 13]

C. No Substantial Detriment to the Public Good/Derogation From Intent of Zoning By-law:

Plaintiff contends that the Variance will not result in a substantial detriment to the public good and will not derogate from the intent and purpose of the Zoning By-law. See G.L. c. 40A, § 10. In this regard, Plaintiff contends that the residential use is consistent with surrounding uses. Plaintiff also relies on the Talacko Affidavit and the Order of Conditions to prove that the Variance will not interfere with the Town’s water supply. Defendants do not dispute that residences are located in the vicinity of Locus. Defendants, however, contend that the Order of Conditions is irrelevant because the Overlay District, within the Zoning By-law, has a different intent and purpose than the Wetlands By-law. Defendants also contend that the Town’s water supply may be put in jeopardy if the Project goes forward.

The ZBA voted to deny the Variance and found that the Project would be a detriment to the public good and substantially derogate from the intent and purpose of the Zoning By-law. The ZBA Decision cannot be annulled if this court can make any finding to support the ZBA Decision in this regard. See S. Volpe & Co., supra, at 359-360. The Order of Conditions issued by the ConCom approved the Project under the Wetlands By-law, with conditions, including the condition that Plaintiff is not relieved from obtaining zoning approval for the Project. The Order of Conditions stated that the Wetlands By-law was more protective of wetland resource areas than the Wetlands Protection Act. The Order of Conditions, however, continued to state that the ConCom “determined that the additional conditions contained in [the Wetlands By-law] are necessary to ensure adequate protection of the resource area...In addition, the proposal calls for buffer zone mitigation in the form of eradication of invasive plant species and replacement with indigenous tree and shrub species with the 25 foot No-Disturb Zone...” It is clear that the Order of Conditions issued under the Wetlands By-law was more focused on mitigating damage to vegetated natural resources rather than the public water supply. The Overlay District regulations in the Zoning By-law do not serve the exact same purpose as the regulations in the Wetlands By-law. If that were the case, then there would have been no separate purpose for the Town to have adopted the Overlay District as part of the Zoning By-law. The Overlay District was enacted to protect existing and potential water supply sources from possible contamination. The Wetlands By-law, however, amongst other things, is intended to protect and regulate wetlands and wetland vegetation within the Town. Therefore, the Order of Conditions is not relevant in determining whether the Project will comply with the intent and purpose of the Zoning By-law. See Boyce, supra (denial of variance upheld even though local conservation commission issued order of conditions based on wetlands).

With respect to protecting the water supply, the Hutchins Affidavit makes clear that the Saw Mill Brook has been used as an emergency water supply in the past. The Talacko Affidavit attested that during a drought, storm water runoff from Locus cannot reach the Watershed because the intermittent stream runs dry. Talacko also attested that drainage from Locus is carried via the intermittent stream into the Watershed. Therefore, it appears that in non-drought conditions storm water runoff may travel from Locus into the Saw Mill Brook via the intermittent stream. This is the exact outcome that the Overlay District intends to mitigate and protect against. As Hutchins attested, the Overlay District intends to protect present and potential water supplies, which may affect emergency water supplies. Based on the evidence presented to this court, I find that the ZBA was within its authority to deny the Variance on the grounds that the Project will be detrimental to the public good and derogate from the purpose and intent of the Zoning Bylaw.

As a result of the foregoing, Plaintiff’s Motion for Summary Judgment is DENIED, and Defendants’ Cross-Motion for Summary Judgment is ALLOWED.

Judgment to enter accordingly.