NANCY G. DANIEL v. MICHAEL HARRINGTON, JOSEPH KELLEHER, PAUL YOUNKER, ARTHUR VERCOLLONE, and JONATHAN RUSSELL as members of the MARSHFIELD ZONING BOARD OF APPEALS.

Introduction

In 2011, while researching the Multiple Listing Service online, Norman Daniel, an experienced real estate developer and husband of the plaintiff, Nancy Daniel, spotted what he thought might be an excellent investment opportunity: a vacant, foreclosed-upon and now bank- owned lot at 219 Island Street near the ocean in Marshfield listed for $35,000 and assessed by the town for approximately $174,200. Mr. and Ms. Daniel intended to build a house on the lot to either sell or rent. Immediately, however, there were signs that this opportunity was likely too good to be true. Mr. Daniel reviewed town records at the assessor’s office and building department and saw that there had previously been a single-family home on the lot. In 2006, a prior owner, Sean Ford, obtained a variance to raze that structure and build a new single-family home in a more central location on the lot (the lot itself is significantly under-sized, having only 4,465 square feet in a zoning district that requires a minimum of 10,000 square feet). Due to financial difficulties, Mr. Ford never constructed the new home and was foreclosed upon. Mr. Daniel came across a second variance application in the building department’s file that was submitted in 2011 by another developer, Dana Junior, which the Zoning Board had denied on its merits. The building inspector also informed Mr. Daniel that the lot, in his view, was unbuildable.

Mr. Daniel nonetheless went ahead with the purchase, after negotiating a reduced price of $27,000, and Ms. Daniel provided the funds, taking title to the property in her name. In May 2012, Ms. Daniel submitted a variance application to the Zoning Board, requesting relief from minimum lot area, width, frontage and lot depth requirements in order to construct a single- family home of equal size to what had previously existed on the lot. The Zoning Board denied the application in July 2012, reasoning that there were no unique conditions with respect to the lot’s soil, shape or topography, that any hardship was self created since Ms. Daniel and her husband were aware that a similar variance application had been denied in 2011, and relief could not be granted without substantially derogating from the intent and purpose of the zoning bylaw. Ms. Daniel then filed this appeal.

The case was tried before me, jury-waived. Based on the testimony and exhibits admitted into evidence at trial, my assessment of the credibility, weight, and inferences to be drawn from that evidence, and as more fully set forth below, I find and rule as follows: Ms. Daniel’s appeal must be DISMISSED for lack of subject matter jurisdiction because the Zoning Board improperly reached the merits of her variance application in violation of the two year moratorium on repetitive applications imposed by G.L. c. 40A, § 16. For the sake of completeness, however, even if this court had jurisdiction to hear the appeal, the result would be no different since Ms. Daniel failed to present sufficient evidence as to each of the statutory prerequisites necessary to justify a variance.

Facts

The relevant facts begin in 2004 when the previous owner, Sean Ford, purchased the property from an estate sale. It contained a two-story residential dwelling then occupied by tenants. The porch of the house was located less than a foot from the lot’s front property line abutting Island Street. The house also had insufficient side setbacks of 13.5 and 12.4 feet instead of the minimum 15 feet required by the zoning bylaw. The lot itself is also nonconforming with respect to area, width, depth, and frontage. [Note 1] According to Mr. Ford who testified at trial, although the structure was habitable, it was in need of significant repair.

Mr. Ford proposed to tear down the existing structure and build a new, two-story, 1600 square foot single-family home of the same 21’ x 41’ dimensions, and a same-sized front porch (21’ x 8’6”). He proposed to locate to the new structure more centrally on the lot so that it would conform to the front and rear yard setback requirements. Side setbacks, however, remained insufficient. In order to build the new dwelling, Mr. Ford needed zoning relief, and, in February 2006, he applied to the Zoning Board for a special permit and variance from the zoning bylaw’s dimensional requirements. In support of his variance request, Mr. Ford retained Anderson Structural Engineering which conducted soil tests on the lot and concluded that the concrete piers supporting the existing structure were unsound due to repeated exposure to flood waters and unstable underlying soil conditions.

The Zoning Board issued its decision on February 28, 2006, granting Mr. Ford a variance [Note 2] to raze the existing structure and build a new dwelling in a location that would conform to the front and rear setback requirements. In its decision, the Zoning Board found that the soil conditions on the lot were unique and not generally found elsewhere in the zoning district, literal enforcement of the zoning bylaw would involve hardship since retaining the existing structure could pose a hazard to public safety because of the unstable foundation, and relief could be granted without derogating from the purpose of the bylaw because the new structure would be less nonconforming, safer and better maintained. No appeal was taken, and Mr. Ford recorded the variance decision at the Registry of Deeds on March 31, 2006.

Mr. Ford obtained a building permit in June 2006 allowing him to raze the existing structure and build the new dwelling. According to Mr. Ford, this project was not in his “typical line of work,” which focused mostly on residential remodeling and historic renovations. In his words, the Marshfield project was “a side thing [that he] wasn’t aggressively pursuing….” Once he obtained the building permit, he waited approximately another year before razing the existing structure. The existing utility lines—water, sewer and gas—were cut and capped. As an experienced builder, he was aware that the building permit was only valid for six months, but he never sought to extend either the building permit or the variance.

By 2009, in the midst of the recession, Mr. Ford lost about 70 percent of his remodeling and renovation work and could only afford to pay the mortgage on his primary residence, ceasing all payments on the Marshfield property. In 2011, the bank foreclosed on the Marshfield lot, which by then was vacant.

In 2011, another developer, Dana Junior, obtained an option to purchase the lot contingent on obtaining a variance that would allow the construction of the dwelling that Mr. Ford had previously proposed. In that application, Mr. Junior alleged that the lot was entitled to a variance because, among other things, it had an irregular shape and size that was unique to the property.

The Zoning Board issued a decision denying Mr. Junior’s variance application on September 27, 2011, and filed that decision with the town clerk on October 11, 2011. The Zoning Board reasoned that the prior variance allowing Mr. Ford to construct a new dwelling on the lot had lapsed since Mr. Ford never built the new structure and never sought to extend either the variance or the building permit. The Board found that the lot’s residential use had been abandoned because the lot had been vacant for more than two years. It also concluded that the lot did not meet any of the requirements necessary for obtaining a variance. It found that the lot was level with a regular shape and there was no hardship, financial or otherwise, to Mr. Junior since his purchase was contingent on obtaining a variance. Finally, the Board concluded that relief could not be granted without substantially derogating from the purpose of the bylaw since constructing a house on such an undersized lot would increase congestion and reduce open space. No appeal of that decision was ever filed.

After the Zoning Board denied Mr. Junior’s variance application, the lot was put back on the market and listed for $35,000 where Mr. Daniel saw it. Mr. Daniel’s interest was “strictly based on business reasons…[the lot] was available at a very reasonable price and it appeared there was an opportunity to make a profit.” According to Mr. Daniel, the lot’s assessed value at the time was $174,200.

Mr. Daniel is an experienced real estate developer. He began his career in the real estate insurance business and then took courses at Harvard in real estate development. He is currently employed as a property manager, which includes real estate development. He develops primarily rental properties for low income persons and those receiving Section 8 assistance. He focuses on developing smaller scale residential properties, including single-family and duplexes, but has worked on projects as large as a 96 room hotel in Boston. In his job, he is responsible for the permitting, development and approval phases and thus, by his own account, is experienced in researching potential properties for development purposes.

After spotting the listing, Mr. Daniel began his due diligence on the property. He consulted town records and confirmed that there had been a dwelling on the lot, which had been demolished some years back. He then went to the Marshfield building department and spoke with Michael Clancy, the town’s building inspector, who told him the lot was unbuildable because it was undersized and the prior variance granted to Sean Ford had lapsed. Despite this, Mr. Daniel decided to move forward. He negotiated with Fannie Mae (then owner of the lot) and agreed on a reduced purchase price of $27,000. As previously noted, Ms. Daniel contributed the money for the purchase. As she testified, her role was limited to buying the land and then “turn[ing] it over to my husband to take care of it.”

Once the sale was complete, Mr. Daniel started planning for development of the lot. His intent was to construct a single-family home that was consistent with the plan Sean Ford had developed in 2006, and he contacted Mr. Ford’s engineer, Robert Crawford, to prepare an updated plan. Mr. Daniel’s plan shows a structure that is the same size and occupies the same footprint as the structure Mr. Ford proposed to build. Mr. Daniel’s decision to try to build the same structure Mr. Ford had proposed was strategic. As Mr. Daniel testified, he made a business decision, thinking that if the Zoning Board had already granted Mr. Ford a variance to build this structure, it would do so again. He was aware that the Board had denied the more recent variance request (Dana Junior’s), and thus he was also aware of the risk that his application would be denied as well.

Mr. Daniel submitted his variance application in May 2012, listing Ms. Daniel, the record owner of the lot, as the applicant. Like the previous variance applications submitted by Mr. Ford and Mr. Junior, Mr. Daniel sought a variance from the zoning bylaw’s minimum lot area, frontage, lot depth, lot width, and side setback requirements. The proposed 41’ x 21’ home with a 8’6” x 21’ covered porch would comply with the bylaw’s front and rear yard setbacks.

As part of the application, Mr. Daniel submitted the building location plan prepared by Robert Crawford, floor plans for the proposed home, and a foundation pile plan prepared by Rivermoor Engineering, all of which were designed to comply with the state building code’s requirements for flood resistant construction since the lot is located in a flood zone. Mr. Daniel also retained Marc Garrett, a wetlands soil scientist, who performed three shallow soil borings on the property and determined that the majority of the property consists of Aquepts soil, which has a high capacity to hold water and may limit structural capacity on the lot. In his letter to the Zoning Board, counsel for Mr. and Ms. Daniel contended that these findings were consistent with those reached by Mr. Ford who represented to the Zoning Board in his variance application that the soil conditions had led to rot and destabilized the foundation of the structure that had previously existed on the lot (the one demolished by Mr. Ford in 2006). Mr. Daniel contended that his proposed dwelling would be constructed on driven pilings in compliance with the state’s flood resistant construction requirements.

The Zoning Board held a public hearing on June 12, 2012 and issued a decision denying Ms. Daniel’s variance application on July 31, 2012. The Board explained that the variance issued to Mr. Ford had lapsed, and the residential use of the lot ceased since the use had been abandoned for more than two years. The Board noted that it had considered Dana Junior’s variance application in September 2011 and concluded that it had failed to meet the requirements for obtaining a variance. Turning to the merits of Ms. Daniel’s application, the Board found that based on its consideration of other zoning petitions, the lot’s marshy soil conditions were not unique, but rather common throughout the town. The Board also found there was no hardship to Ms. Daniel because her husband had been aware that the Board had recently denied Mr. Junior’s variance application, and the Daniel proposal was essentially identical to Mr. Junior’s. Finally, the Board found that because the lot is significantly undersized, relief could not be granted without overcrowding the land in the R-3 zoning district, a harm which the bylaw is intended to prevent.

Shortly thereafter, Ms. Daniel filed this G.L. c. 40A, § 17 appeal, contending that 1) the Board’s decision was arbitrary and capricious and must be annulled, and 2) seeking a declaration ordering the Board to issue the variance allowing the construction of a home on the lot.

Additional facts are set forth in the Discussion section below.

Discussion

The Zoning Board Had No Jurisdiction to Hear Ms. Daniel’s Variance Application Under G.L. c. 40A, § 16

At trial [Note 3], counsel for the Zoning Board contended that the Board improperly reached the merits of Ms. Daniel’s variance application in violation of the two year bar on reapplications contained in G.L. c. 40A, § 16. The Board asserted that because it lacked the authority to issue a decision on the merits of Ms. Daniel’s application, her appeal is not properly before this court and must be dismissed. The court deferred ruling on this matter during trial. Both parties have briefed the issue in their post-trial filings.

G.L. c. 40A, § 16 provides

No appeal, application or petition which has been unfavorably and finally acted upon by the special permit granting or permit granting authority [in this case, the Zoning Board] shall be favorably acted upon within two years after the date of final unfavorable action unless said special permit granting authority or permit granting authority finds, by a unanimous vote of a board of three members or by a vote of four members of a board of five members or two-thirds vote of a board of more than five members, specific and material changes in the conditions upon which the previous unfavorable action was based, and describes such changes in the record of its proceedings, and unless all but one of the members of the planning board consents thereto and after notice is given to parties in interest of the time and place of the proceedings when the question of such consent will be considered.

The Marshfield zoning bylaw further provides:

No appeal, application or petition to the Board of Appeals with respect to a particular parcel of land or with respect to any structure which has been unfavorably acted upon by the Board of Appeals shall be considered on its merits by said Board within two years after the date of such unfavorable action, except in accordance with M.G.L. Chapter 40A, Section 16.

Marshfield Zoning Bylaw Section 10.09(6). Ms. Daniel submitted her variance application to the Board seven months after the Board denied Dana Junior’s request for a variance. A letter submitted by Ms. Daniel’s counsel as part of the variance application addressed the two year moratorium in § 16. Counsel contended that § 16 did not apply because Ms. Daniel’s application was an entirely new application, submitted by a new property owner, and not a reapplication that § 16 is intended to bar. Further, counsel argued that there were specific and material changes in Ms. Daniel’s application, which specifically contained information regarding soil conditions on the property that was never included in Mr. Junior’s application. To the extent there was a jurisdictional defect, Ms. Daniel contends that it was waived since the Board was fully aware of c. 40A, § 16 and nonetheless decided to hear the application and issue a decision on its merits.

The zoning bylaw and c. 40A, § 16 prohibit the Board from considering the merits of a reapplication unless it finds there are specific and material changes in the subsequent application and obtains the consent of all but one of the members of the planning board. Neither occurred here. The Board made no findings concerning specific and material changes in Ms. Daniel’s application [Note 4] and never obtained planning board consent to reconsider the application.

Chapter 40A, § 16 serves “to give finality to administrative proceedings and spare affected property owners from having to go repeatedly to the barricades on the same issue.” Ranney v. Bd. of Appeals of Nantucket, 11 Mass. App. Ct. 112 , 115 (1980). Although a local board may give weight to relatively minor differences between applications and the court should defer to those local determinations, see id. at 115-16, a reapplication must present at least some evidence of a change in circumstances that would justify reconsideration. Here, there was none. Although Ms. Daniel was a new owner, her variance application sought to construct the same single-family home as Mr. Junior’s application a few months prior. The information relating to the lot’s soil conditions supplied by Ms. Daniel’s wetlands scientist did not constitute a material change in circumstances between the time of Mr. Junior’s denial and Ms. Daniel’s reapplication. At best, the soil information only amounted to a new argument that Mr. Junior could have made but did not. [Note 5] New arguments alone are not sufficient to meet the requirements of § 16. See Whiting v. Learned, 9 LCR 407 , 410-411 (2001) (Lombardi, J.) (finding that a variance reapplication contained only new arguments, not a material change in circumstances and thus annulled variance granted by zoning board).

I am also not persuaded that the Board had the authority to waive the requirements of § 16 and reach the merits of Ms. Daniel’s application. Where the language of a statue is clear and unambiguous, it is conclusive as to the intent of the Legislature and “the governmental zoning power may not be forfeited by the action of local officers in disregard of the statute and ordinance.” Cumberland Farms, Inc. v. Planning Bd. of Bourne, 67 Mass. App. Ct. 67 , 69 n.7 (2006) quoting Ferrante v. Board of Appeals of Northampton, 345 Mass. 158 , 163 (1962). If the Board had the authority to waive the jurisdictional prerequisites of finding specific and material changes and obtaining planning board consent before reaching the merits of an application, then it would plainly defeat the policy behind § 16, which is to relieve neighboring property owners from having to remain on constant alert for repetitive petitions for zoning relief. Because the Zoning Board had no jurisdiction to consider Ms. Daniel’s variance application in the absence of specific and material changes and planning board consent, her appeal of that decision must be DISMISSED. See Cumberland Farms Inc., 67 Mass. App. Ct. at 70 (holding zoning board had no jurisdiction to issue decision and dismissing plaintiff’s appeal of that decision).

Though I need not consider the merits of Ms. Daniel’s c. 40A, § 17 appeal, I do so now for the sake of completeness. Even assuming that Ms. Daniel’s appeal was proper, I find and conclude that Ms. Daniel has failed to meet the requirements needed to obtain a variance pursuant to G.L. c. 40A, § 10.

Even on the Merits, Ms. Daniel is Not Entitled to a Variance

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

The permit granting authority shall have the power… to grant upon appeal or upon petition with respect to particular land or structures a variance from the terms of the applicable zoning ordinance or by-law where such permit granting authority specifically finds that owing to circumstances relating to the soil conditions, shape, or topography of such land or structures and especially affecting such land or structures but not affecting generally the zoning district in which it is located, a literal enforcement of the provisions of the ordinance or by- law would involve substantial hardship, financial or otherwise, to the petitioner or appellant, and that desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of such ordinance or by-law.

The Supreme Judicial Court has “repeatedly held that no variance can be granted unless all of the requirements of this statute are met.” Warren v. Zoning Bd. of Appeals of Amherst, 383 Mass. 1 , 9-10 (1981) (emphasis added). “Since the requirements for the grant of a variance are conjunctive, not disjunctive, a failure to establish any one of them is fatal.” Kirkwood v. Bd. of Appeals of Rockwood, 17 Mass. App. Ct. 423 , 428 (1984) (citing Blackman v. Bd. of Appeals of Barnstable, 334 Mass. 446 , 450 (1956)). Moreover, variances “are to be granted sparingly.” Id. (citing Damaskos v. Bd. of Appeal of Boston, 359 Mass. 55 , 61 (1971)); Dion v. Bd. of Appeals of Waltham, 344 Mass. 547 , 555 (1962).

When a variance is challenged in court, “the burden is upon the person seeking a variance, and the board granting one, to produce evidence that each of the discrete statutory prerequisites has been met and that the variance is justified.” Kirkwood, 17 Mass. App. Ct. at 427. Then:

[u]pon appeal, it is the duty of the judge to hear all the evidence and to find the facts. He is not restricted to the evidence that was introduced before the board. The decision of the board is competent evidence to enable the judge to ascertain what conclusion the board reached in order that he may determine whether upon the facts found by him the decision of the board should stand or be annulled or should be modified. In a word, the matter is heard de novo and the judge makes his own findings of fact, independent of any findings of the board, and determines the legal validity of the decision of the board upon the facts found by the court, or if the decision of the board is invalid in whole or in part, the court determines what decision the law requires upon the facts found.

Bicknell Realty Co. v. Bd. of Appeal of Boston, 330 Mass. 676 , 679 (1953). See also Roberts v. Southwestern Bell Mobile Sys. Inc., 429 Mass. 478 , 485-486 (1999) (citing Bicknell and other cases).

At trial, the parties each presented their respective expert witnesses who testified extensively about soil conditions on the lot and in the surrounding zoning district.

Ms. Daniel presented the testimony of Arthur Allen III, an environmental scientist who specializes in soils and wells. Mr. Allen is a vice president of EcoTec, an environmental consulting firm, where he has worked for 18 years and he regularly consults on soils and wetlands in connection with land development and peer reviews.

Mr. Allen testified that in January 2013, he dug three deep-soil test pits on the property, each approximately 4 feet deep. Based on these samples, he determined that the soil conditions on the property consisted of three feet of rubbly, human-placed fill on top of shallow marsh peat and saturated sand. The sample pits were dug along a line down the center of the property running east to west. He returned to Marshfield in August 2013 and conducted a broader investigation of soil conditions in the R-3 zoning district by taking soil samples at six different locations in the district. He then located these sampling sites on the National Resources Conservation Service (NRCS) soil map, which provides estimates of the percentage coverage of different soil types. Then, by using an online resource called the Web Soil Survey that is made available by the United States Department of Agriculture, Mr. Allen drew a polygon around his areas of interest on the NRCS soil map corresponding to his sampling sites. Based on this, Mr. Allen calculated that approximately 14.7 percent of the soil found in the R-3 zoning district, or 312 acres out of 2123 acres, is buried marshland similar to that found at Ms. Daniel’s lot.

The Zoning Board countered with the testimony of its expert witness, Peter Fletcher. Mr. Fletcher is a certified soils scientist and works as a sole proprietor offering consulting services. He is certified through the American Registry of Certified Professionals in Agronomy Crops and Soils and the Soil Scientist Society of Southern New England and was a soil scientist with the U.S. Department of Agriculture, National Resources Conservation Service for approximately 30 years.

Mr. Fletcher testified that, before visiting the property, he consulted a variety of reference materials including the U.S. Geological Survey geology and topographical maps for the Duxbury quadrangle, the Department of Environmental Protection wetlands map, and data and maps from the National Resources Conservation Service. Using this reference material, Mr. Fletcher identified areas to conduct on-site soil investigations. He did not conduct any soil samples at the property for two reasons: first, he understood that he did not have access to the site, and second, he felt comfortable with Mr. Allen’s interpretation of the property’s soil conditions. Based on his observation of the marshland and the earthen berm behind the property, he agreed with Mr. Allen that the lot had likely been altered by human activity and the addition of fill.

Relying on the reference material, Mr. Fletcher attempted to develop a model that would allow him to predict soil conditions at various locations. His model focused on areas near the tidal marsh, where wetlands or the tidal marsh ended abruptly. He identified these locations by looking at the geology, the topographical maps, the DEP wetlands map, the NRCS soil map and the locations of where Mr. Allen conducted his investigations. He then dug test pits at six different sites in the R-3 zoning district, five of which revealed fill overlaying buried tidal marsh- conditions consistent with those at the Daniel’s property. Given the results of his investigations, Mr. Fletcher testified with a high degree of confidence that he would expect to find fill over buried marshland extending north and south of the Daniel’s property in the areas identified by his model. Based on all this, he concluded that the soil conditions at the property are not unique or unusual. Instead, he concluded that fill over buried marshland is common in the zoning district in areas of low elevation near a tidal marsh. [Note 6] Mr. Fletcher did not dispute Mr. Allen’s percentage figure of approximately 14.7 percent for fill over buried marsh. He testified, however, that given his model, he was confident that these soil conditions were “very predictable on the landscape” and with further investigation could be shown to be higher than 15 percent. (2-195, 197). Having heard both experts, I agree with Mr. Fletcher.

Even assuming, however, that Mr. Allen’s 14.7 percent figure is correct and that it makes the soil conditions on the Daniel’s lot sufficiently unique, I find that Ms. Daniel still failed to sustain her burden with respect to the first requirement needed for a variance. Simply showing that soil conditions on a lot are unique is not enough. There must be a nexus between a lot’s soil conditions that create a hardship for a property owner and the relief that a variance could provide. Here, Ms. Daniel does not seek a variance because her lot consists of man-made fill over buried marshland. She needs a variance because her lot is significantly undersized with respect to area and frontage, and the dwelling she seeks to construct also violates side setback requirements. See Mitchell v. Bd. of Appeals of Revere, 27 Mass. App. Ct. 1119 , 1120 (1989) (denying variance where hardship did not relate to topography but to lot’s small size which rendered it unbuildable). See also Petrosino v. Cunningham, 17 LCR 794 , 796 (2009) (Piper, J.) (finding no nexus between soil conditions and variance for undersized lot). Because there is no connection between the lot’s soil conditions and the desired variance, for that reason alone Ms. Daniel’s appeal must fail. See Kirkwood, 17 Mass. App. Ct at 428 (“Since the requirements for the grant of a variance are conjunctive, not disjunctive, a failure to establish any one of them is fatal.”). While the soil conditions might have contributed to weakening the foundation of the prior dwelling that existed on the lot, they are not the reason why Ms. Daniel now seeks a variance. [Note 7]

Literal enforcement of the zoning bylaw also will not involve substantial hardship to Ms. Daniel. Ms. Daniel purchased the lot with full knowledge that it was likely unbuildable. That knowledge alone does not disqualify her from seeking a variance. See Lamb v. Zoning Bd. of Appeals of Taunton, 76 Mass. App. Ct. 513 , 517-18 (2010). But her alleged hardship is really the loss of an economic advantage. The property was purchased as an investment opportunity. The Daniels never intended to reside there themselves. This is not sufficient to show a substantial hardship. See Kirkwood, 17 Mass. App. Ct. at 431 (“Nor will deprivation of a potential economic advantage to a landowner qualify as a substantial hardship.”). As Mr. Daniel conceded on cross examination, the denial of zoning relief “defeats the profit incentive that was anticipated in the deal.” While the lot is unbuildable, this does not mean it has no value. The lot may have value to abutters or for conservation purposes. Mr. Daniel testified that he has not considered either of these options.

The last element needed for a variance is a showing by the applicant that desirable relief may be granted without nullifying or substantially derogating from the intent and purpose of the zoning bylaw. Ms. Daniel has failed to sustain this element as well. The lot does not simply suffer from minor dimensional deficiencies. It is significantly undersized. It consists of 4,465 square feet in a zoning district requiring a minimum of 10,000 square feet. It has 47 feet of frontage where the minimum required is 80 feet. Given that a stated purpose of the zoning bylaw is to prevent overcrowding of land and the undue concentration of the population, I cannot say on these facts that the Zoning Board’s findings were arbitrary, capricious or legally untenable.

The 2006 Variance Has Lapsed

A few weeks before trial, Ms. Daniel moved for leave to amend her complaint, seeking a declaration that the variance granted to Mr. Ford in 2006 had not lapsed and remained in full force. The parties addressed the motion at trial, but I deferred ruling on it at that time until both parties had the opportunity to fully brief the issue in their post-trial briefs. Having now considered those arguments, I deny the motion for the reason that the claim Ms. Daniel seeks to add is futile. See Mathis v. Massachusetts Electric Co., 409 Mass. 256 , 264-65 (1991) (futility of amendment).

G.L. c. 40A, § 10 provides that, “[i]f the rights authorized by a variance are not exercised within one year of the date of the grant of such variance such rights shall lapse.” Section 10.11 of the Marshfield zoning bylaw essentially mirrors this provision, stating, “[i]f the rights authorized by a variance are not exercised within one year of the date of the grant of such variance they shall lapse, and may be reestablished only after notice and a new hearing….”

Prior to the enactment of G.L. c. 40A in 1975, variances did not expire and only conditional variances were required to be recorded. Variances therefore could be exercised many years later, and this created confusion among purchasers who might be unaware that an abutting parcel had a right to deviate from the requirements of a zoning bylaw. See Grady v. Zoning Bd. of Appeals of Peabody, 465 Mass. 725 , 731 (2013). In Cornell v. Bd. of Appeals of Dracut, 453 Mass. 888 (2009), the Supreme Judicial Court interpreted G.L. c. 40A, §§ 10 and 11 [Note 8] to hold that in order to prevent the lapse of a variance, the variance holder must timely record the variance and exercise the rights granted therein. Id. at 891. The Court noted that “at the very least, [the variance holder] should have recorded the variance and obtained a building permit within one year of being granted the variance to prevent it from lapsing.” Id. at 894.

The Zoning Board does not dispute that Mr. Ford both recorded the variance (March 31, 2006) and obtained a building permit (June 20, 2006) within one year of its issuance. Mr. Ford also razed the existing structure in reliance on the variance. See Grady, 465 Mass. at 729 (holding variance became effective under unusual circumstances where variance holder did not record variance within one year, but substantially relied on the rights granted by the variance). But after that, Mr. Ford did nothing else. He testified that this project was outside his typical line of work, and he “wasn’t aggressively pursuing it.” After receiving the building permit, Mr. Ford recalled that he “sat on it probably—maybe upwards of another year” despite being aware that a building permit is valid for only six months. He never sought an extension of either the building permit or the variance. By 2009, Mr. Ford’s construction business slowed during the recession, and he was unable to pay the mortgage on the property. Salem Five Savings Bank conducted a foreclosure auction in April 2011 and assigned its winning bid to Fannie Mae, which recorded a foreclosure deed at the registry on June 29, 2011 at Book 40072, Page 299. [Note 9]

Ms. Daniel contends that since Mr. Ford recorded the variance and obtained a building permit, the variance never lapsed and remains valid now, some eight years after its issuance. I disagree. G.L. c. 40A, § 10 was intended to remedy situations precisely like the one presented here, where a variance could last in perpetuity and the rights granted therein could be exercised several years after its issuance. See Grady, 465 Mass. at 731. This section “ensures the prompt utilization of duly granted variances.” Cornell, 453 Mass. at 891. Though I need not decide the precise date when Mr. Ford’s variance became no longer effective, the evidence demonstrates that Mr. Ford did not diligently pursue his rights. After five years had passed, the dwelling authorized by the variance had never been constructed, and Mr. Ford, under financial constraint, effectively walked away from the project all together. On these facts, I find that Mr. Ford did not promptly utilize his variance. The rights granted by that variance no longer remain in effect and cannot be revived by Ms. Daniel.

Conclusion

For the foregoing reasons, Ms. Daniel’s complaint is DISMISSED in its entirety, WITH PREJUDICE.

Judgment shall enter accordingly.