MISC 11-455757

July 9, 2018

Barnstable, ss.




On November 14, 2011, Plaintiffs John D. Sullivan and Kathleen R. Sullivan ("the Plaintiffs" or "the Sullivans") appealed, under G.L. c.40A § 17, from a decision of the Town of Barnstable Zoning Board of Appeals ("the ZBA") denying the Sullivans' request for modification of a previously granted lot coverage variance. A one-day trial was held in Boston on October 26, 2015. Four witnesses testified: James Milano, the Sullivans' builder; Steven Rumba, a land surveyor; David MacLean, an architect; and Thomas Munsell, an abutter. Twelve exhibits were admitted into evidence. The Parties filed post-trial memoranda on August 8, 2016. Closing arguments were heard on November 15, 2016. Now for the reasons set forth below, I find and rule that the ZBA's decision denying the requested variance modification did not exceed its authority.


Based on the pleadings, the parties' statement of agreed facts, the admitted exhibits, and the trial testimony, I find the following pertinent facts:

The Sullivans own a single-family residential property located at 564 Old Craigville Beach Road in West Hyannisport, Barnstable, Massachusetts [Note 1] (the "Property"). The Property, which is located in the RB Residential Zoning District, has an area of 10,950.91 square feet. When the Sullivans originally purchased the Property in 1984, a one-story, 1,038 square foot single-family dwelling was located on the premises. Lot coverage by the then-existing dwelling was 10.55%.

In 2010, the Sullivans sought to replace the then-existing dwelling with a new, larger one. In the process of developing plans for the new dwelling, the Sullivans discovered that the lot coverage of the dwelling as designed would exceed the maximum coverage allowed under § 240-91 H (1)(b)[1] of the Barnstable Zoning Ordinance ("the Ordinance"), which limits lot coverage by all buildings and structures to 20%, or the existing lot coverage, whichever is greater. As designed, the proposed dwelling would exceed both of those limits. Rather than redesign the dwelling to reduce coverage, the Sullivans elected to apply for a variance to permit a 25.6% lot coverage, based upon the need to have the dwelling be confined on one level to accommodate Mr. Sullivan's disability.

By decision dated December 8, 2010, the Board granted the Sullivans' petition for a lot coverage variance, subject to nine conditions. [Note 2] Relevant here are conditions numbered 1, 2, and 8, which provide as follows:

* Condition 1 states "[t]he location and area of the building shall be substantially in conformity to the land surveyor plan submitted entitled 'Site Plan of Land for 564 Old Craigville Rd., West Hyannisport, MA prepared for John & Kathleen Sullivan' dated 5-19-2010 as drawn by Weller & Associates entitled 'SP-2.'"

* Condition 2 states "[t]he dwelling to be built shall also conform to the house elevation plans submitted that have been initialed and dated by the Chair and entered into the file."

* Condition 8 states "[t]here shall be no increase in the gross area of the dwelling beyond that permitted herein without prior approval from the Zoning Board."

The Site Plan and house elevation plans referenced in conditions 1 and 2 are not entirely consistent. The Site Plan referenced in condition 1 depicts only a general, block outline of the proposed 2,807 square foot dwelling and its location on the Property. The Site Plan notes that the lot coverage is 25.6%, but does not depict the details of the house design. Of special relevance to this case, the Site Plan does not show the front porch or the semi-circular deck located at the back of the house, which are depicted on the house elevation plans referenced in condition 2. [Note 3] Also, the lot coverage calculation noted on the Site Plan does not include the areas of the front porch and the deck.

The Parties do not dispute that the front porch and deck should have been included when calculating the lot coverage. According to the testimony of the Sullivans' architect, David MacLean, if the front porch and rear sun deck shown on the house elevation plans had been included, the lot coverage of the dwelling proposed in 2010 would have been calculated at 27.1% - an additional 1.5% coverage over that indicated on the Site Plan.

Relying on the 2010 variance, the Sullivans proceeded to raze their existing dwelling and build a new one. After construction was completed, the Barnstable Building Inspector conducted a final inspection, at which time he determined that the rear deck was not constructed in accordance with the 2010 variance conditions. More specifically, a 160 square foot deck had been constructed at the northeast corner of the house instead of the 90 square foot deck centered in the back of the house off the breakfast room, as had been shown on the house elevation plans. Determining that the rear deck was constructed in violation of the approved plans – because it had been built in a different location than approved, and increased the lot coverage over that which had been authorized – the Building Inspector refused to issue a permanent certificate of occupancy for the new dwelling.

The Sullivans then proceeded to apply to the ZBA for a modification to the 2010 variance to increase the 25.6% lot coverage authorized under the 2010 variance in order to account for the larger deck constructed. The application includes a statement relative to Chapter 40A, Section 10 findings, asserting that

owing to circumstances related to the topography of the existing structure and the applicants need for a single level dwelling affect the ability of a rear egress to exit rear of building as is required under Ma. State law. Due to the extent of the home owners handicap status an adjacent structure is necessary. . . . [D]ue to the topography and the lot, and the home owners handicap, a patio would not fulfill the needs of the applicant.

The ZBA denied the requested variance modification. The Decision and Notice, dated October 26, 2011 and filed with the Barnstable Town Clerk that same day, records a vote of five members declining to accept a series of six "findings of fact" (including findings which recited verbatim the three statutory variance prerequisites set forth in G.L. c. 40A, § 10.) The affirmative votes of the five ZBA members are then recorded relative to the following "Decision":

Based on the vote that findings as required by M.G. L. Chapter 40A do not exist to justify grant of a variance, a motion was duly made and seconded to deny Appeal No. 2011-041.

The Sullivans' appeal followed.


Zoning variances are waivers of the local zoning ordinance or by-law. No one is entitled to a variance as a matter of right, and they are granted only sparingly. Lussier v. Zoning Bd. of Appeals of Peabody, 447 Mass. 531 , 534 (2006); Furlong v. Zoning Bd. of Appeals of Salem, 90 Mass. App. Ct. 737 , 739-40 (2016). The three statutory prerequisites for the grant of a variance by a local zoning board of appeals are set out in G. L. c. 40A, § 10, and authorize the local permitting authority the power to grant a variance upon a finding that

[a] owing to circumstances relating to 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 a substantial hardship, financial or otherwise, to the petitioner . . . and [c] that desirable relief may be granted without substantial detriment to the public good.

These three prerequisites are conjunctive, and a board may grant a variance only if all three conditions are met. Sheppard v. Zoning Bd. of Appeal of Boston, 81 Mass. App. Ct. 394 , 398 (2012).

Upon appeal, the decision of a local zoning board to deny a variance "cannot be disturbed unless it is based on a legally untenable ground, or is unreasonable, whimsical, capacious or arbitrary." Wendy's Old Fashioned Hamburgers of New York, Inc. v. Board of Appeal of Billerica, 454 Mass. 374 , 381-82 (2009); Furlong, 90 Mass. App. at 739. Judicial review of a variance denial is de novo, and involves two inquiries. The first inquiry requires a legal analysis of whether the board's decision was based upon a legally untenable ground, i.e., whether it was based upon criteria or considerations not permitted by the applicable statute or ordinance. The second inquiry requires a determination of whether any rational view of the facts the court has found supports the local board's conclusion that the applicant failed to meet one or more of the statutory criteria for a variance. Shirley Wayside Ltd. Partnership v. Bd. of Appeals of Shirley, 461 Mass. 469 , 474 (2012); Sedell v. Zoning Bd. of Appeals of Carver, 74 Mass. App. Ct. 450 , 453 (2009); Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 71 (2003). The court makes a de novo finding of the facts to determine the legal validity of the board's decision, without giving weight to the facts found by the board. Shirley Wayside, 461 Mass. at 474. A decision is unreasonable, whimsical, capricious or arbitrary if no rational view of the facts support the board's decision, or if the reasons stated for its decision are "mere pretexts for arbitrary action or veils for reasons not related to the purposes of the zoning law." Id. at 475.


The ZBA denied the Sullivans' requested variance modification after concluding that it could not make any of the required statutory findings under G.L. c. 40A, § 10. At trial, the Sullivans failed to show that there was no valid basis to support the ZBA's decision. In challenging the ZBA's denial of their request for modification of the 2010 variance, the Plaintiffs here had the burden to bring evidence before the court that all of the statutory prerequisites for a variance are met, and that a further modification to the variance from the Ordinance's lot coverage limitations is justified. See 39 Joy Street Condo Ass'n v. Board of Appeal of Boston, 426 Mass. 485 , 488 (1998); Dion v. Board of Appeals of Waltham, 344 Mass. 479 , 555-56 (1962). More specifically, they were unable to demonstrate that literal enforcement of the already varied lot coverage requirements would involve substantial hardship owing to unique soil, shape or topography factors.

The Board granted the 2010 variance specifically conditioned on the new dwelling being built in conformance with the plans submitted to the ZBA by the variance applicants, and incorporated into the variance by reference. The house elevation plans submitted to the ZBA with the Sullivans' 2010 variance application were not preliminary. Those plans showed the deck located at the rear of the dwelling where it could be accessed by double doors off of the breakfast room. The topography of the backyard is shown on the house elevation plans as relatively flat, and the surface of the deck is shown as only slightly elevated from the ground, with at most two steps leading into the backyard.

The conditions of a variance are a substantive part of that variance. When a variance is conditioned on conformance with plans that are not preliminary on their face, strict compliance with the plans is required, at least insofar as the site location and the bulk of the buildings are concerned. DiGiovanni v. Board of Appeals of Rockport, 19 Mass. App. Ct. 339 , 346-47 (1985). A violation of the variance, including any conditions, is a violation of the local zoning ordinance. See Rosenfeld v. Zoning Bd. of Appeals of Mendon, 78 Mass. App. Ct. 677 , 679 (2011) ("The variance furnished relief from otherwise applicable requirements of the zoning by-law, and the conditions imposed by the variances operate as preconditions to the enjoyment of that relief."). Here, rather than either building the dwelling in conformance with the 2010 variance conditions, or seeking prior ZBA approval to make changes to the plans incorporated into the 2010 variance, the Sullivans elected to unilaterally change the location, design, and size of the deck. The increased size of the deck they built exceeded the lot coverage permitted under the 2010 variance. The Sullivans sought a modification of the 2010 variance only after the altered deck had been built and they were unable to obtain a final occupancy permit for their new dwelling.

Now, in challenging the ZBA's denial of the requested variance modification, the Sullivans contend that the ZBA should have found hardship resulting from the Property's unique topography – in particular, a steep slope at the rear of the new foundation wall where the originally proposed sun deck was to be located. The Sullivans assert that, because of the steep slope, they needed to relocate the deck to the northeast corner of the new dwelling where it could be built lower to the ground. The Sullivans contend that requiring the deck to be built as shown on the original plans would mean that Mr. Sullivan, who has physical mobility difficulties, would suffer a substantial hardship in not having practical access to his backyard.

As for the "steep slope," which the Sullivans claim to be the unique topographical condition which necessitated the relocated deck, the evidence is to the contrary. This topographical condition was actually created after the 2010 variance was granted, when the Sullivans had a drainage swale created in connection with the new house construction. No drainage swale was shown on the plans submitted to the ZBA in 2010. Rather, according to the builder, James Milano, the swale was created to satisfy a neighbor, Mr. Munsell. [Note 4] Mr. Milano testified that "under the agreement that we had with Munsell, we weren't allowed to put any more fill there. He wanted a swale. So we weren't going to be able to build the deck with a minimum amount of steps or one step off the deck." Furthermore, the Plaintiffs' claim that they relocated and redesigned the rear deck to provide Mr. Sullivan with easy access to the back yard is belied by the plans and photographs placed into evidence. The plans and photographs plainly show that the deck the Sullivans built is significantly above ground level and has, in fact, been built with several steps leading down to the yard.

Further, the "hardship" that the Sullivans claim they will suffer by having to build the rear deck in conformance with the 2010 variance relates to Mr. Sullivan's physical condition rather than to an inability to use the Property in accordance with the Ordinance. A zoning variance, however, must be based upon circumstances that directly affect the real estate, and not upon conditions personal to the owner. Sheppard, 81 Mass. App. Ct. at 400 & n.9 ("As a general matter, a hardship resulting from a personal condition or characteristic of the owner (rather than from conditions affecting the land itself) is not a valid basis for a variance."); see also, Aronson v. Bd. of Appeals of Stoneham, 349 Mass. 593 , 595 (1965) (hardship finding not justified by the poor health of the owner). [Note 5] Thus, Mr. Sullivan's inability to maneuver stairs cannot, in any event, be a proper basis for a finding of substantial hardship that satisfies the variance prerequisites of G.L. c. 40A, § 10. [Note 6]

Any other hardship that the Sullivans might incur if they are required to conform to conditions of the 2010 variance (whether owing to the presence of the drainage swale or the fact that the new deck has already been built) is entirely self-created, and therefore is otherwise not a proper basis for a variance. See Lamb v. Zoning Bd. Of Appeals of Taunton, 76 Mass. App. Ct. 513 , 515-16 (2010) ("A landowner cannot obtain a variance by creating his own hardship.").

Because the Sullivans have failed to establish any hardship justifying the grant of a variance modification or new modification, I need not address whether the other two variance prerequisites have been met in order to conclude that the ZBA did not exceed its authority in denying the Sullivan's requested variance modification. See DiGiovanni, 19 Mass. App. Ct at 349 (The fact that the applicant's subsequent plans and construction violated the variance "was sufficient explanation for denial of a variance, especially on a record which falls well short of establishing facts which would have authorized the board to grant the variance.").

Finally, the Sullivans clearly violated the terms of the 2010 variance when they built a 160 square foot deck on the northeast corner of the new dwelling instead of the 90 square foot deck off the breakfast room as indicated on the plans incorporated into the 2010 variance. The Sullivans are misguided in relying upon footnote 14 in the DiGiovanni case to argue that the dimensional violation created by building the altered rear deck is "trivial" and should not have necessitated a variance at all. The additional 70 square feet of ground coverage created by the larger new deck is not "a matter of inches" and is not trivial, particularly when viewed in light of the altered location, which is closer to the neighbor's yard. When, as in the instant case, a variance both specifies the percentage of ground coverage allowed and the footprint dimensions of the subject structure, anything beyond that percentage and that footprint exceeds the scope of the variance, thus necessitating a variance modification or a new variance. [Note 7]


In view of (1) the 2010 variance which was granted to eliminate their claimed hardship; (2) the Sullivans' violation of the conditions imposed upon that variance, and (3) the Sullivans' failure to establish any valid hardship justifying a modified or new variance to further increase lot coverage, I find that the ZBA's denial of the Sullivans' variance modification application was neither legally untenable, nor unreasonable, whimsical, capricious, or arbitrary. Accordingly, judgment shall enter that the ZBA's decision did not exceed its authority.


[Note 1] West Hyannisport is a village of the Town of Barnstable.

[Note 2] The 2010 variance was recorded at the Barnstable Registry of Deeds in Book 24904, Page 194.

[Note 3] The house elevation plans show the sun deck located directly off the breakfast room at the rear of the dwelling, and accessed by double doors. It appears from the plans that there are, at most, two steps leading from the deck to the yard.

[Note 4] The Sullivans entered into a private written agreement with the Munsells dated September 24, 2010, which stated in relevant part that the Sullivans would build a drainage swale "along the back wall of the new building on the Sullivan property to keep water flow moving northerly along the Sullivan property, rather than to the east."

[Note 5] Although the 2010 variance was based upon a hardship due to the owner's physical limitations, the validity of the 2010 variance decision was never challenged through a timely appeal, and is now beyond judicial review. See Bonfatti v. Zoning Bd. of Appeals of Holliston, 48 Mass. App. Ct. 46 , 50 (1999) and cases cited therein (recognizing that there is no right to challenge a zoning board's decision once the G.L. c. 40A, § 17 appeal limit has expired).

[Note 6] To the extent that the Sullivans have any hardship justifying a variance from lot coverage limits, such hardship no longer exists by virtue of the fact that the Sullivans have already obtained a lot coverage variance. DiGiovanni, 19 Mass. App. Ct. at 348 ("The hardships justifying the grant of a variance no longer exist precisely because a variance has been granted" (emphasis in original).) The hardship claimed by the Sullivans as a basis for the 2010 variance was the need to build a single story, wheelchair accessible house that provided access to the backyard. Insofar as the ZBA granted the 2010 variance to relieve such a "hardship," the Sullivans can no longer rely on that same hardship to justify a variance modification to permit a further increase in lot coverage.

[Note 7] I decline to address the Plaintiffs' alternative arguments that the ZBA should have overturned the Building Inspector's refusal to issue an occupancy permit, as the application to the ZBA was plainly one for a variance and not an appeal from the Building Inspector's determination.