Plaintiffs filed their unverified Complaint on December 5, 2007, appealing a decision of Defendant Sutton Zoning Board of Appeals (ZBA) which granted a dimensional variance (the Variance) to Defendants Roseanne LaBarre (LaBarre) and John Scott (together, LaBarre/Scott). A case management conference was held on February 26, 2008. LaBarre/Scott filed their Answer on March 5, 2008.
On July 17, 2008, LaBarre/Scott filed their Motion for Summary Judgment, together with supporting memorandum and Appendix, including Affidavits of Maria Hopkins (licensed appraiser) and Roseanne LaBarre (first), and portions of depositions of Robert E. Marhefka and Roseanne LaBarre. The ZBA filed its Motion for Summary Judgment on July 28, 2008, relying on LaBarre/Scotts memorandum. On August 14, 2008, Plaintiffs filed their Cross-Motion for Summary Judgment and Opposition to LaBarre/Scotts motion and the ZBAs motion, together with supporting brief and Appendix, including Affidavits of Robert E. Marhefka (first) and Robert D. ONeil, Jr. (professional land surveyor), appraisal of Robert Tolland, and a portion of the deposition of Robert E. Marhefka. LaBarre/Scott filed their Opposition to Plaintiffs motion and their Reply to Plaintiffs Opposition on September 17, 2008, together with Appendix, including the Affidavit of Roseanne LaBarre (second). On September 25, 2008, Plaintiffs filed their Reply Brief to LaBarre/Scotts Opposition, together with Affidavits of Robert E. Marhefka (second). On the same day, Plaintiffs filed their Reply to Plaintiffs Statement of Facts. A hearing was held on all motions on October 6, 2008, and on November 12, 2009, this court issued a decision (Decision 1) and Judgment (the Judgment), in which it found that Plaintiffs allegation of harm to their view of the Pond was not a protected interest under the Town of Sutton Zoning Bylaw (the Bylaw), and because the alleged harm of diminution of value was directly tied to views, the allegation of diminution of value was inadequate to confer standing upon Plaintiffs. Plaintiffs appealed Decision 1, and by decision of the Massachusetts Appeals Court dated May 13, 2011, the Appeals Court reversed the Judgment (the Appeals Court Decision), finding that The view injury the plaintiffs have alleged relates to protected density and dimensional interests. The by-law identifies open space and describes yard in such a manner as to make protection of view an implicit interest protected by the density and dimensional provisions of the by-law . . . The disputed degree of the injury renders this case inappropriate for summary judgment. Because the degree of the quantity and quality of the view impairment due to the increased density was not decided by the Land Court judge, we decline to determine whether the plaintiffs have presented sufficient credible evidence of a particularized injury to warrant standing. The Land Court judge must determine, in the first instance, whether the plaintiffs have met their burden to submit credible evidence of the alleged injury . . . The matter is remanded to the Land Court for further proceedings consistent with this opinion. Marhefka v. Zoning Bd. of Appeals, 79 Mass. App. Ct. 515 , 520 (2011)
A pre-trial conference was held on May 21, 2012. A site view and the first day of trial at the Worcester Superior Court were held on July 25, 2012. The second day of trial was held on July 26, 2012, at the Land Court in Boston. At the conclusion of trial, LaBarre/Scott moved for a directed verdict based on the fact that Plaintiffs presented no evidence relating to the issue of density. At that time, this court declined to act on said motion before it could review the trial record. LaBarre/Scott filed their Post-Trial Brief on October 23, 2012. Plaintiffs filed their Post-Trial Brief on October 24, 2012, and at that time the matter was taken under advisement. On January 7, 2013, after notifying the parties, the court took a second site view.
Testimony for Plaintiffs was given by Andrew Liston (Liston) (surveyor), Robert Tolland (Tolland) (appraiser), and Robert Marhefka (Marhefka) (Plaintiff). Testimony for LaBarre/Scott was given by John Andrews (Andrews) (surveyor), Maria Hopkins (Hopkins) (appraiser), and LaBarre (Defendant). There were 105 exhibits submitted into evidence, some in multiple counterparts.
Based on the sworn pleadings, my observations at the site view [Note 1], the evidence submitted at trial, and the reasonable inferences drawn therefrom, I find the following material facts:
1. LaBarre/Scott purchased property located at 20 Pine Point Drive, Sutton, Massachusetts (Locus), on October 17, 2005. Locus is shown on plan titled ZBA Plan of 20 Pine Point Drive in Sutton, MA Prepared for Roseanne C. LaBarre dated September 2, 2008, and prepared by Andrews Survey & Engineering, Inc. (the 2008 Plan). Locus abuts Ramshorn Pond (the Pond) and is located in the R-1 (Residential Rural) zoning district of Sutton (R-1). [Note 2] Minimum lot size in R-1 is 80,000 square feet and Locus consists of .14 acres (approximately 6,098.4 square feet) [Note 3]. R-1 requires minimum frontage of 250 feet and Locus has 87 feet of frontage. R-1 requires minimum setbacks of 50 feet from the front, 20 feet from each side, and 50 feet from the rear lot lines. None of the plans in evidence show the yard setbacks for the existing single family house on Locus, but the house appears to violate the west side yard setback and rear yard setback. [Note 4] Locus has a trapezoidal shape.
2. Plaintiffs purchased property located at 19 Pine Point Drive, Sutton, Massachusetts (Plaintiff Property) on September 20, 1997. A portion of Plaintiff Property is shown on the 2008 Plan and lies directly across the street from Locus, separated by Pine Point Drive. Plaintiff Property includes a parcel of land to the east of Locus with approximately thirty-six feet of private beach along the Pond and a dock jutting out into the Pond. A majority of Plaintiff Property is uphill from Locus and overlooks the Pond in several directions. Both Plaintiffs and LaBarre/Scott access their property via an unimproved, dirt/gravel portion of Pine Point Drive, a private right of way (the Way).
3. On July 13, 2007, LaBarre/Scott filed an application with the ZBA for a variance for front yard setback to allow the construction of a 24' x 24' garage (the Garage), with the closest portion of the Garage being 6.6 feet from the front property line of Locus (along the Way), in the southeastern quadrant of Locus. [Note 5], [Note 6] LaBarre/Scott have a septic system located in the southwestern corner of Locus in front of the side door to the LaBarre/Scott house. LaBarre testified that she would never want to site the Garage directly above the septic system. LaBarre/Scott did not request a variance with respect to any other non-conformities. The Garage will stand 19 feet in height and will have a pitched, Cape Cod style roof. [Note 7] At the present time, LaBarre/Scott park their vehicles in a relatively flat, unimproved area over which the Garage will sit (the Parking Area).
4. By decision dated November 8, 2007 (the Variance Decision), the ZBA unanimously granted the Variance (based on front yard setback only).
Finding #3 of the Variance Decision stated:
The variance is a dimensional variance. The garage to be constructed will be in substantial conformance with other homes in the neighborhood. The variance is necessary due to the size and shape of the petitioners lot as well as the location of the existing [septic] system.
Finding #6 of the Variance Decision stated:
After having viewed the premises and following a duly noticed and held public hearing, the Board finds pursuant to the Town of Sutton Zoning Bylaws and Chapter 40A of the Massachusetts General Laws that the variance should be granted because the Board finds that a literal enforcement of the provisions of the Bylaw would involve a substantial hardship, financial or otherwise, to the Petitioner; that the hardship is owing to soil and shape of the land which especially affects this site but does not affect generally the zoning district in which it is located; and that the variance can be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent and purpose of the Zoning Bylaws. The hardship in this case arises out of:
a. Shape and size of the parcel as it is an existing parcel, and
b. Soil conditions, as there is a substantial amount of ledge located on the parcel.
5. Plaintiffs built their existing house in 2005. There is a screened-in porch on the north side of the house that is oriented so that it looks over the Parking Area and the Pond. Plaintiffs dining room also looks out in the same direction over the Pond. At the present time, Plaintiffs can see the opposite side of the Pond from their screened-in porch.
6. Plaintiffs enjoy a panoramic view of the Pond from Plaintiff Property. Even if the Garage is constructed, Plaintiffs will not lose their entire view of the Pond. There is conflicting testimony relating to the percentage of Plaintiffs view of the Pond that will be lost as a direct result of the Garage. [Note 8] Plaintiffs appraiser, Tolland, testified that Plaintiffs loss of view will result in a $50,000 diminution in value of Plaintiff Property. Hopkins, LaBarre/Scotts expert appraiser, testified that Tollands conclusion relative to diminution in value is based on flawed analysis. Hopkins testified that Tollands conclusion was speculative because Tolland should have compared Plaintiff Property to more than three properties to determine the value of Locus if LaBarre/Scott build the Garage. Moreover, Hopkins testified that Tolland improperly determined the diminution in value of Plaintiff Property based on Plaintiff Property having no view of the Pond rather than a partially obstructed view.
7. Moving in a northerly direction from the Way, across the Parking Area and down to the Pond, the slope of Locus varies in different locales. Beginning at the front lot line, i.e. the boundary line with the Way and Plaintiff Property, Locus has a slope of approximately 8.7%, but then levels off at the Parking Area to a minimum slope of 6.7%. The average slope of the Parking Area is 7-7.5%. Andrews testified that the slope of the Parking Area is reasonably level. The 2008 Plan depicts a dramatic drop in the slope of Locus, at a rate of 44.9%, several feet beyond the Parking Area towards the Pond. Andrews further testified that the slope of Locus falls right off at about 45 degrees and that it would be impractical to site the Garage closer to the Pond because of the topography or slope of Locus in that area. There is an area depicted as landscape timbers on the 2008 Plan, behind the Parking Area and adjacent to a deck on Locus, that is built out over the steep slope of Locus. The western boundary of Locus, where the LaBarre/Scott house sits, slopes at the relatively flat rate of 6%. [Note 9] As depicted on the 2008 Plan, the western boundary of Plaintiff Property (eastern boundary of Locus) gradually slopes down toward the Pond at an average rate of 17%. [Note 10] Unlike Locus, however, Plaintiff Property does not have a dramatic 45% decline towards the Pond. Various photographs in evidence depict Plaintiff Property gradually sloping down to the Pond. [Note 11]
8. There is a substantial amount of subsurface, impervious ledge throughout Locus. LaBarre and Andrews testified that the subsurface ledge exists underneath the Parking Area, which causes accumulation of water and ice over the Parking Area and also causes flooding in the LaBarre/Scott basement. On at least one occasion, LaBarre slipped and fell on the ice and injured herself. The snow and ice build-up often makes it time consuming and difficult for LaBarre/Scott to access their vehicles. [Note 12] Andrews testified that the Garage would divert water from the general location of the Parking Area, but water may still accumulate directly in front of the Parking Area. Liston, Plaintiffs surveyor, testified that even if the Garage is constructed, impervious ledge will still exist in the area surrounding the Garage. According to Liston, therefore, the Garage will not cause a change in the water flow in and around the Parking Area and into the basement of the LaBarre/Scott house.
9. Photographs in evidence and Andrews testimony indicates that ledge exists on both Locus and Plaintiff Property. LaBarre testified that Locus suffers from the unique confluence of an irregularly shaped lot, varying degrees of slope, and impervious ledge, which together contribute to the accumulation of water and snow over the Parking Area.
Plaintiffs assert that they have standing to challenge the Variance and that the decision of the ZBA to grant the Variance was arbitrary, capricious, and unreasonable. Conversely, LaBarre/Scott and the ZBA argue that Plaintiffs lack standing, and that the decision of the ZBA in granting the Variance was valid. I shall address each of these issues in turn.
i. Standard of Review:
Only a person aggrieved may challenge a decision of a zoning board of appeals. Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996); G. L. c. 40A, § 17. A plaintiff is presumed to be a person aggrieved if it is a party in interest pursuant to G. L. c. 40A, § 11. [Note 13] Marotta v. Board of Appeals of Revere, 336 Mass. 199 , 204 (1957); Murray v. Board of Appeals of Barnstable, 22 Mass. App. Ct. 473 , 476 (1986). A presumption of standing is rebuttable. See Watros v. Greater Lynn Mental Health and Retardation Assn, Inc., 421 Mass. 106 , 111 (1995). In order for a defendant to rebut the presumption of standing, a defendant must offer evidence warranting a finding contrary to the presumed fact. Id. If standing is properly challenged, standing is then decided on all the evidence with no benefit to the plaintiff from the presumption. Marotta, 336 Mass. at 204. See also Marashlian, 421 Mass. at 721 (A review of standing based on all the evidence does not require that the fact finder ultimately find a plaintiffs allegations meritorious. To do so would deny standing, after the fact, to any unsuccessful plaintiff). Without the presumption, individual . . . property owners acquire standing by asserting a plausible claim of a definite violation of a private right, a private property interest, or a private legal interest. Harvard Square Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491 , 492-93 (1989). To qualify for that limited class, a plaintiff must 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. Barvenik v. Board of Aldermen of Newton, 33 Mass. App. Ct. 129 , 132 (1992). See also Butler v. City of Waltham, 63 Mass. App. Ct. 435 , 440 (2005) (noting that the plaintiffs injury flowing from the boards decision must be special and different from the injury the action will cause to the community at large). To assert a plausible claim, a plaintiff must put forth credible evidence to substantiate his allegations. Marashlian, 421 Mass. at 721. Credible evidence consists of both a quantitative and a qualitative component . . . . Quantitatively, the evidence must provide specific factual support for each of the claims of particularized injury the plaintiff has made. Qualitatively, the evidence 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. Conjecture, personal opinion, and hypothesis are therefore insufficient. Butler, 63 Mass. App. Ct. at 441.
ii. Presumed Standing
Plaintiffs directly abut Locus and, thus, are parties in interest pursuant to G.L. c. 40A, § 11 and are presumed to have standing to challenge the Variance. As Plaintiffs have presumed standing, the burden shifts to LaBarre/Scott to produce evidence to rebut the harms alleged by Plaintiffs.
In the Complaint, Plaintiffs alleged harms related to diminished view of the Pond and diminution in property value based on such loss of view. The Appeals Court has found that, even though views are not explicitly set out as a protected interest under the Bylaw, the Bylaws language relating to density, dimensional requirements, and open space implicitly recognizes view as a protected interest. The view injury the plaintiffs have alleged relates to protected density and dimensional interests. Marhefka, supra, at 520. The case was remanded to this court to determine whether Plaintiffs have met their burden to submit credible evidence of the alleged injury, the degree of the injury, and whether the injury is particularized to Plaintiffs.
The Appeals Court has tied Plaintiffs harm of diminished view to density concerns, thus this court must first address the issue of density. LaBarre/Scott presented evidence that density concerns are not relevant in this case because R-1 is not an overly dense zoning district and the Garage will not reduce open space on Locus. Marhefka testified that R-1 is not overly populated and LaBarre testified that there is a good deal of land in Sutton. Moreover, as discussed, infra, it appears that the Garage will not reduce open space on Locus, pursuant to the definition of open space in the Bylaw. LaBarre/Scott have therefore rebutted Plaintiffs presumed standing based on density, and this court must now consider all evidence regarding the issue of standing. Once the presumption is rebutted, the burden 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, 447 Mass. 20 , 33 (2006), citing Barvenik, supra, at 132; see also Harvard Square, supra; Bedford v. Trs of Boston Univ., 25 Mass. App. Ct. 372 (1988). As such, Plaintiffs have the burden to persuade this court that they have standing based on density to challenge the Variance.
According to the Appeals Court Decision, view is a protected interest in Sutton because [a]s a matter of common sense, the yard and setback requirements have a purpose to preserve open space, implying the ability to see through open space. Marhefka, supra, at 520. LaBarre/Scott have launched a three prong attack against Plaintiffs alleged harms. First, LaBarre/Scott allege that the density and setback protections of the Bylaw, which confer standing based on view, are inapplicable to the Variance. Second, LaBarre/Scott allege that Plaintiffs loss of view is de minimis. Third, LaBarre/Scott allege Plaintiffs cannot prove a loss of value as a result of such loss of view.
Protection of view [is] an implicit interest protected by density and dimensional provisions of the [Bylaw.] Id. Area and frontage requirements of local bylaws seek to prevent the overcrowding of land, lessen congestion, [and] avoid undue concentration of population. Dwyer v. Gallo, 73 Mass. App. Ct. 292 , 296 (2008). The requirements of lot size, lot width, and side yard are intended to further these interests. Sheppard v. Zoning Bd. of Boston, 74 Mass. App. Ct. 8 , 12 (2009), citing Dwyer, supra, at 296.
It should be noted that at the Summary Judgment stage in this case, Plaintiffs barely addressed the issue of standing as it relates to density. In Plaintiffs Motion for Summary Judgment, they break down their standing argument under two separate categories: A. View and B. Value. At oral argument Plaintiffs made absolutely no reference to increased density as a basis for standing and, in its entirety, Plaintiffs density argument was tangential at best. Under the View heading of their argument, Plaintiffs cite to Standerwick, supra, and Tsagronis v. Bd. of Appeals of Wareham, 415 Mass. 329 (1993). In Tsagronis, the attendant legal interest in the zoning scheme at issue was to prevent further construction in a [zoning] district in which the existing development is already more dense than the applicable zoning regulations allow. Tsagronis, supra, at 58-59 (emphasis supplied) (internal citation omitted).
Provisions in the Bylaw relating to lot coverage and frontage are intended to protect against further construction in a zoning district or neighborhood that is more dense than regulations permit. This principal has been articulated in many cases: See Tsagronis, supra; Dwyer, supra at 295-296 (2008) ([t]he agreed facts reveal that the Dwyers property and Gallos property are located in a neighborhood where construction is already more dense than allowed by the current zoning; Sheppard, supra, at 11-12 (2009) ([a]n abutter has a well-recognized legal interest in preventing further construction in a district in which the existing development is already more dense than the applicable zoning regulations allow... As the trial judge observed, Sheppards neighborhood was already dense and overcrowded) (internal citations omitted); McGrath v. Chatham Zoning Bd. of Appeals, 17 LCR 101 , 103 (2009) ([t]he neighborhood in question is undoubtedly more dense than the bylaw allows). [Note 14]
At trial, Plaintiffs offered no credible evidence that R-1 or the neighborhood surrounding Locus and Plaintiff Property is more dense than applicable zoning regulations allow. In their post-trial brief, Plaintiffs merely state that many lots abutting the Way are dimensionally non-conforming. Plaintiffs do not expound on this contention or give any testimony in this regard. With no further explanation, Plaintiffs cite to an assessors map (the Map) and a plan entitled Plan of Property, dated May 10, 2000 and prepared by Moran Survey, Inc. (the 2000 Plan). The Map depicts Locus, Plaintiff Property, and many other lots of various shapes and sizes in the vicinity of the Pond. The 2000 Plan depicts Plaintiff Property and several surrounding structures and lots, including Locus. There is no testimony relating to either the Map or the 2000 Plan and Plaintiffs presented absolutely no evidence that the structures on the depicted lots violate any open space, building coverage, setback, frontage, or any other density related requirement of the Bylaw. Plaintiffs have provided no facts relative to the Map or the 2000 Plan.
All probative evidence in the trial record relating to the density of R-1 and the neighborhood indicates that density is not a problem. Based on their respective observations, Marhefka testified that R-1 is not over populated. LaBarre testified that R-1 is not overly dense and not overly built and she also stated that there is a good deal of area in Sutton. Accordingly, based on the record before this court, there is no basis for a finding that R-1 or the neighborhood surrounding Locus is overly dense. Because LaBarre/Scott rebutted Plaintiffs presumed standing, Plaintiffs have the burden of persuasion to show a legitimate protected interest pursuant to the Bylaw. See Standerwick, supra; Harvard Sq. Defense Fund, supra. The testimony of LaBarre and Marhefka relating to density is far more probative and credible than an out of context assessors map and the 2000 Plan.
Next, the Bylaw defines open space as [t]he portion of the lot area not covered by any structure and not used for drives, parking, or storage... Similar to frontage and lot size requirements in a bylaw, preservation of open space is another means to prevent overcrowding and overly dense development. The undisputed testimony of LaBarre indicates that the Garage will sit atop the Parking Area and, pursuant to the definition of open space in the Bylaw, the Parking Area, i.e. the portion of Locus used for parking, does not constitute open space. Plaintiffs have not offered any evidence to prove that the Garage will not be sited directly over the Parking Area. As such, it would appear that the Garage will not reduce open space on Locus, as such is defined in the Bylaw.
More to the point, the Garage violates the front yard setback provisions of the Bylaw by a little over three feet at its closest point, as it will be set back from the Way only 6.6 feet (at its closest point). [Note 15] The majority of the front line of the Garage will not be in violation of the front yard setback requirement. As a result, the Variance grants relief for a small encroachment into the front yard setback. It appears that if a small corner of the Garage were eradicated, then LaBarre/Scott would not need the Variance for front yard setback. The front yard setback violation in this case can be best described as de minimis.
The Appeals Court remanded the case at bar to this court to determine, in the first instance, whether the plaintiffs have met their burden to submit credible evidence of the alleged injury. Marhefka, supra, at 521, citing Butler, supra, at 440-442. If density is in fact a legitimate legal interest based on the particular facts of a case, the party claiming standing must prove that such density concerns are (1) not de minimis and (2) particularized to Plaintiffs. See Marhefka, supra, at 521; Dwyer, supra, at 296; McGrath, supra, at 103. It is undisputed that the Variance permits LaBarre/Scott to construct the Garage with less front yard setback than required in the Bylaw. What is disputed, however, is Plaintiffs harm, i.e. whether R-1 or the neighborhood surrounding Locus and Plaintiff Property is more dense than existing regulations allow. Moreover, Plaintiffs have not produced any evidence proving that the Garage will cause a reduction in open space as defined in the Bylaw. Plaintiffs bear the burden of persuasion to show their alleged harm. The simple fact of the matter in this case is that Plaintiffs have not satisfied their burden to prove that density concerns, which have been discussed and adjudicated in many of the cases cited, supra, are legitimate, particularized harms to Plaintiffs.
Based on the foregoing, I find that Plaintiffs do not have standing to challenge the Variance based on density. [Note 16]
This court has found that Plaintiffs lack standing to challenge the Variance. Nonetheless, because there has been a trial on all issues, the court is inclined to give its opinion regarding the validity of the Variance. [Note 17]
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 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.
Judicial review of a local zoning boards denial or grant of a variance involves a combination of de novo and deferential analyses. The trial judge makes his own findings of facts and need not give weight to those the board has found. Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555 , 558-559 (1954). G.L. c. 40A, § 17. The judge then determines the content and meaning of statutes and by-laws and decides whether the board has chosen from those sources the proper criteria and standards to use in deciding to grant or to deny the variance or special permit application. Shirley Wayside Ltd. P'ship v. Bd. of Appeals, 461 Mass. 469 , 475 (2012), citing Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 73-74 (2003).
LaBarre/Scott argue that they have met the requirements of the statute based on the confluence of shape (trapezoidal), topography (slope), and soil conditions (impervious ledge) relating to Locus. LaBarre/Scott maintain that they suffer hardships of (1) having to park their vehicles over snow and ice, thereby causing risk of injury and rust to vehicles, and (2) flooding of their basement, which will be mitigated by the Garage. Plaintiffs allege that LaBarre/Scott have not met their burden of proving each element required by G.L. c. 40A, § 10. Specifically, Plaintiffs argue that LaBarre/Scott need the Variance solely because of Locus size. Plaintiffs, therefore, argue that the ZBA acted in an arbitrary, capricious, and unreasonable manner in granting the Variance.
i. 40A, § 10 Elements
LaBarre/Scott have presented evidence indicating that Locus slopes dramatically downward from Plaintiff Property toward the Pond, that Locus has an irregular, trapezoidal shape, and that the soil conditions of Locus consist primarily of impervious ledge. LaBarre/Scott state that these factors result in accumulation of water, snow, and ice on the Parking Area, which causes LaBarre/Scott hardship. Finally, the siting of the Garage, according to LaBarre/Scott, is controlled by the unfavorable shape, slope, and soil conditions of Locus in addition to the siting of the septic system on Locus.
There is sufficient evidence in the trial record to conclude that the aforementioned factors exist on Locus, cause LaBarre/Scott hardship, and affect the siting of the Garage. Andrews, LaBarre/Scotts surveyor, testified that Plaintiff Property and the Way slope down towards Locus at a rate of approximately 8% from the front lot line of Locus (bordering Plaintiff Property) to the Parking Area. Although not completely flat, the Parking Area is one of the most flat locales on Locus. The leveling slope, together with the impervious subsurface ledge of the Parking Area, causes the accumulation of snow, water, and ice over the Parking Area and directly causes LaBarre/Scott hardship. See Shacka v. Board of Appeals, 341 Mass. 593 , 595 (1961) ( the hardship must be directly caused by topography, slope or shape of lot especially affecting such parcel but not generally the zoning district). LaBarre testified that, in the winter months, LaBarre/Scott have a very difficult time accessing their vehicles because of the accumulation of snow and ice. On at least one occasion, LaBarre slipped on ice that had accumulated in the Parking Area, fell and injured herself. [Note 18] Physical injury caused by shape, soil conditions, or topography can be a basis for hardship. See Campbell v. City of Cambridge Bd. of Zoning Appeal, Mass. Super. LEXIS 495 (2007) (variance upheld based on hardship of low ceilings causing home owners risk of injury by banging head on ceiling). LaBarre suffers a particular hardship as a result of the accumulation of snow and ice because as a doctor, she is often on-call and needs to leave her home quickly and at random hours of the night.
LaBarre/Scott can only site the Garage on the Parking Area. The Parking Area is one of the flattest areas on Locus that is not covered by a structure, and LaBarre/Scott must construct the Garage on the Parking Area to prevent the accumulation of snow and ice. According to Andrews, it would be impractical to site the Garage behind the Parking Area and closer to the Pond because of the steep slope of Locus in that area. Given the topography of Locus and the location of a well and septic system on Locus, there are likely no other alternatives to site the Garage.
With respect to whether the ledge, slope, and shape issues can be especially attributed to Locus poses a more difficult question. LaBarre and Andrews testified that ledge is commonly found within Sutton and LaBarre admits that other lots in R-1 are irregularly shaped. LaBarre/Scott argue, however, that it is not the slope, nor impervious ledge, nor shape of the lot alone, all factors she admits are present within R-1, which give rise to the hardship; it is the confluence of all three factors, which together are unique to Locus and give rise to the particular hardship suffered by LaBarre/Scott.
LaBarre/Scott cite Wolfman v. Bd. of Appeals of Brookline, 15 Mass. App. Ct. 112 , 116 (1983) to support their position. In that case, in upholding a variance, the Appeals Court stated that the trial judge took all the circumstances of the locus, the soil conditions, the reverse L shape, the grade and the adjacent buildings, into account, and we cannot say that he was in error in finding that these circumstances did not affect the zoning district generally. No other property in R-1, according to LaBarre, suffers from the same confluence of factors. The crux is thus whether all the circumstances of Locus affect the zoning district generally. In the case at bar, the combination of slope and impervious ledge gives rise to LaBarre/Scotts specific hardship.
Water flows down the Way and accumulates atop the Parking Area because of the impervious ledge below the surface of the Parking Area. Locus is relatively flat along its western lot line and the property to the west of Locus was observed to be relatively flat. Moving east, Locus becomes more steep on the eastern side of the LaBarre/Scott house, and the slope of Locus becomes extreme to the north of the Parking Area and down to the Pond. To the east of the Parking Area, the slope of Locus becomes a bit more gradual. Even further to the east, at the eastern lot line of Locus and western lot line of Plaintiff Property, the topography gradually slopes down to the Pond. The slope of Locus behind the Parking Area (to the north) is more extreme than the Parking Area, the slope of Plaintiff Property, and the property to the west of Locus.
The 2008 Plan and various photographs in evidence indicate that Plaintiff Property has a gradual slope down towards the Pond rather than the steep, 45% decline of Locus behind the Parking Area. Even though the 2008 plan depicts the eastern lot line of Locus and the western lot line of Plaintiff Property having a similar slope, the slope of Locus is greater than the slope of Plaintiff Property several feet to the west of said lot line beyond the Parking Area. [Note 19] In other words, unlike Locus, which has varying degrees of slope ranging from relatively flat to dramatically steep, the slope of Plaintiff Property to the east of Locus and the slope of the abutting lot to the west of Locus were observed to be more or less consistent throughout the respective lots. See Broderick v. Bd. of Appeals of Boston, 361 Mass. 472 , 478 (1972) (upholding variance based on the extremity of variations of grade that were not comparable to the adjacent environs).
As a result, the evidence indicates that the specific circumstances of the LaBarre/Scott property, i.e. slope leading to the relatively flat Parking Area with subsurface impervious ledge, followed by a steep decline towards the Pond, are unique to Locus and do not affect the zoning district generally, particularly the properties on either side of Locus. Accordingly, it appears that the ledge, varying degrees of slope, and irregular trapezoid shape of Locus, taken together, are especially attributable to Locus.
ii. Decision of the ZBA
A court accords deference to a local boards reasonable interpretation of its own zoning bylaw, with the caveat that an incorrect interpretation of a statute is not entitled to deference. Shirley, supra, at 475. The court then decides whether, based on all of the facts found by the reviewing court, the decision of the ZBA is unreasonable, whimsical, capricious, or arbitrary. Britton, supra, at 74. This court has made its own findings of facts relative to the hardships alleged by LaBarre/Scott. Next, the court must review the Variance Decision to determine whether, based on the facts found by the court, the ZBA acted in an arbitrary or capricious manner in granting the Variance. See Britton, supra.
The ZBA granted the Variance based on hardship arising out of (1) shape and size of Locus, and (2) soil conditions, as there is substantial ledge on Locus. This court has also found that the slope of Locus, and the relatively level Parking Area, are unique to Locus. Based on the foregoing facts, it appears that the Variance Decision was not arbitrary, capricious, or unreasonable. [Note 20]
As this court has found, supra, the slope of Locus and the impervious ledge under the surface of the Parking Area together give rise to LaBarre/Scotts hardship. The Variance Decision similarly found that the subsurface ledge gave rise to said hardship. Moreover, LaBarre/Scott articulated hardship regarding flooding of their basement and accumulation of snow and ice in their Parking Area. The Garage will clearly prevent accumulation of snow and ice on the Parking Area because a structure will exist where gravel had existed. As such, the Garage will mitigate the hardship suffered by LaBarre/Scott with regard to access to their vehicles. [Note 21] Finally, contrary to Plaintiffs contentions, the Variance Decision does not merely recite the standard for a variance without expounding on its reasons for granting the same. See Josephs v. Bd. of Appeals of Brookline, 362 Mass. 290 , 298 (1972). Although the Variance Decision is somewhat vague, the ZBA articulated shape and soil conditions (substantial ledge) as a basis for the Variance. In addition to this courts finding that the unique slope of Locus gives rise to LaBarre/Scotts hardship, this court has similarly found that the substantial ledge on Locus and, to a lesser extent the shape of Locus, contribute to LaBarre/Scotts hardship.
Finally, LaBarre/Scott do not propose an alterative use of Locus. They are merely constructing a detached Garage to mitigate drainage and water accumulation issues on the Parking Area. The Garage, an accessory to a residential home, will not in any way derogate from the intent of the Bylaw. Based on the foregoing, it appears that LaBarre/Scott have met the requirements for the Variance and that the Variance Decision was not arbitrary, capricious or unreasonable. [Note 22]
Judgment to enter accordingly.
[Note 1] A view is not evidence, but it may be used to assist the fact finder in understanding the evidence introduced at trial and in reaching a decision. Commonwealth v. Curry, 368 Mass. 195 , 197-98 (1975); Commonwealth v. Jefferson, 36 Mass. App. Ct. 684 , 688 (1994). A view is extremely helpful in situations where a court must interpret various plans of land and photographs of the site, as in the case at bar.
[Note 2] A large majority of Sutton falls within R-1.
[Note 3] The parties submitted this figure as an agreed-upon fact in their Joint Pre-Trial Memorandum, even though the 2008 Plan shows the lot size of Locus as 5,921 square feet and the 2007 Plan (as hereafter defined) shows the lot size at 5,937 square feet. This discrepancy is not material to this decision.
[Note 4] For further discussion of front yard setback, see, infra, FN 4.
[Note 5] The application for a variance includes a plan depicting a seven-foot front-yard setback. On November 1, 2007, LaBarre/Scott submitted an Amendment to Petition for the Variance (the Amended Petition). With the Amended Petition, LaBarre/Scott submitted a plan entitled Variance Plan of Land, dated October 20, 2007, and prepared by G.E. Smith Land Surveying (the 2007 Plan), which depicts a 6.6 foot front-yard setback at the closest point to the front lot line. LaBarre/Scott maintain that the 6.6 foot front-yard setback is accurate.
[Note 6] The application for a variance (and the Amended Petition) requests relief from Section III.B.3 of the Bylaw (Table 3), which requires a fifty-foot front yard setback. An accessory building is defined in the Bylaw: A detached subordinate building, the use of which is customarily incidental and subordinate to that of the principal building, and which is located on the same lot as that occupied by the principal building. It is clear that the Garage will be detached from the LaBarre/Scott house and will have a subordinate use to said house. The Garage is therefore an accessory structure. Accessory structures must be set back fifty (50) feet from a street and ten feet from other lot lines. At its closest point, the Garage will be set back 6.6 feet from the Way. A street is defined in the Bylaw: A way which is over twenty (20) ft. in right-of-way width which is dedicated or devoted to public use... On the 2008 Plan, the Way does not appear to be more than twenty feet in width, and there is no evidence that the Way is dedicated or devoted to public use. As a result, the Way does not appear to be a Street. Accordingly, the Bylaw requires a ten-foot setback of any accessory structure, e.g. the Garage, from the Way.
[Note 7] Maximum height for a building in R-1 is thirty-five (35) feet.
[Note 8] LaBarre testified that Plaintiffs will lose two per cent of their entire panoramic view of the Pond, but she did not testify to the extent of Plaintiffs lost view over the Parking Area. Liston, Plaintiffs surveyor, testified that Plaintiffs will lose eighty per cent of their view of the Pond over the Parking Area. Liston did not testify to the percentage reduction of Plaintiffs panoramic view.
[Note 9] The court took notice at both site views that Locus is relatively flat along the western lot line, and the property abutting Locus to the west is also relatively flat.
[Note 10] The proposed Garage, the Parking Area, and the area of Locus behind the Parking Area with the 45% slope are approximately 13 feet to the west of the eastern lot line of Locus and western lot line of Plaintiff Property.
[Note 11] The gradual slope of Plaintiff Property compared to the more dramatic slope of Locus, in certain areas, was seen at the initial site view and confirmed at the second site view.
[Note 12] LaBarre is a doctor who is on call every third evening and intermittently on the weekends.
[Note 13] The term parties in interest is defined in G. L. c. 40A, § 11 as: the petitioner, abutters, owners of land directly opposite on any public or private street or way, and abutters to the abutters within three hundred feet of the property line of the petitioner as they appear on the most recent applicable tax list . . . . An assessors certification is conclusive for establishing proof of a party in interest. Id.
[Note 14] The Appeals Court Decision states that [t]he density and dimensional requirements of the [Bylaw] confer standing on [Plaintiffs] to challenge the [Variance] based on the aggravation of the preexisting nonconformity of adjoining lots. There is no evidence to this effect in the trial record.
[Note 15] This violation appears to be only for the closest point of the Garage to the front yard lot-line.
[Note 16] Plaintiffs alleged harms of view and diminution in value were tied to density concerns and, based on the foregoing finding, this court need not address the issue of view or diminution in value. However, based on the Appeals Courts remand to this court for full findings on the standing issue, I will address all of Plaintiffs alleged harms. The next issue was for this court to determine whether the diminished ability to see through open space as a result of the Garage is more than de minimis. See Marhefka, supra, at 520; Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115 , 123 (2011). In this regard, LaBarre/Scott offered testimony that the diminished view of the Pond from Plaintiff Property (caused by the Garage) will be de minimis. Plaintiffs countered, and offered the testimony of Liston to prove that they will lose eighty per cent (80%) of their view of the Pond over the Parking Area. Plaintiffs put a great deal of emphasis on their highly valued view of the Pond, over the proposed Garage, from their dining room and screened-in porch.
LaBarre rightfully pointed out that Plaintiffs enjoy a panoramic view of the Pond from their property; a view that includes much more than Plaintiffs view of the Pond over the Parking Area. LaBarre/Scott presented photographs that tend to show that Plaintiffs enjoy a panoramic view of the Pond, especially in a westerly direction and over another neighbor's property. LaBarre testified that Plaintiffs will lose 2% of their panoramic view of the Pond as a result of the Garage. Plaintiffs offered the testimony of Liston, who was qualified as an expert surveyor. Liston credibly testified that Plaintiffs will lose approximately eighty per cent (80%) of their view of the Pond over the Parking Area (not 80% of the panoramic view) if the Garage is constructed. In support of this conclusion, Liston superimposed a hypothetical structure, similar in dimensions to the Garage, over several pictures depicting views of the Pond from the dining room and screened-in porch in Plaintiffs house.
With due regard to the quantity and quality of evidence presented, it would appear that Plaintiffs view of the Pond over the Parking Area will be diminished as a result of the Garage. It is also quite clear, however, that Plaintiffs enjoy a panoramic view of the Pond, with the view over the Parking Area only a portion of Plaintiffs total view. It cannot be disputed in good faith that the harm of diminished view from Plaintiff Property (e.g. Plaintiffs dining room and screened-in porch) is particularized to Plaintiffs. The pitched roof line of the Garage, however, which Plaintiffs allege will block their view of the Pond, is outside of the setback area. The roof line and the height of the Garage are in full compliance with the Bylaw. As such, the minor setback encroachment giving rise to the Variance does not actually cause Plaintiffs loss of view. As discussed, supra, if the small corner of the Garage were removed, there would be no need for the Variance for front yard setback.
Separate and distinct from view, Plaintiffs allege the Garage will cause a depreciation in the value of Plaintiff Property. Diminution in the value of real estate is a sufficient basis for standing only where it is derivative of or related to cognizable interests protected by the applicable zoning scheme. Kenner, supra, at 123, citing Standerwick, supra, at 31-32. Plaintiffs appraiser, Tolland, testified that Plaintiffs loss of view will result in a $50,000 diminution in value of Plaintiff Property. LaBarre/Scott contend that Tollands testimony is not credible because Tollands analysis improperly compared the value of a home with a view of the water to a home with no view of the water, rather than a partially obstructed view. Hopkins testified that it is nearly impossible to discount the value of a home with a partially obstructed view, thus Tollands testimony in this regard is speculative and mere conjecture. Moreover, Hopkins criticized Tollands appraisal procedure because he only used three comparable sales in his analysis (to determine the value of Plaintiff Property with the Garage on Locus), too few comparables according to Hopkins.
I find Tollands appraisal and corresponding testimony to be speculative at best. First, Tolland admitted that it was very difficult to find a pool of properties as comparable to Locus. Tolland stated, I believe I found two that were even remotely comparable. Tolland therefore admitted that the properties he used as comparisons were far from ideal. More to the point, a third comparable property, used to establish the value of Plaintiff Property without the Garage, was located outside of Sutton. Finally, aside from the fact that Tolland only examined three comparable properties to estimate the value of Plaintiff Property with the Garage, those three properties were not adequately comparable to Plaintiff Property. Two out of the three had no water view at all, and none of the three comparables had a dock or frontage on water. If the Garage is constructed, Plaintiff Property will still have some view of the Pond and Plaintiffs will still have a dock and frontage along the Pond. As a result of the foregoing, it does not appear that Plaintiffs can show a diminution in value of Plaintiff Property as a result of the Variance.
[Note 17] On a number of occasions, various justices of the Land Court have commented on the merits of a zoning appeal even though he or she had found that the party challenging the zoning action lacked standing. See e.g. Deignan v. Jussila, 14 LCR 506 (2006) (Scheier, C.J.); Maloof v. Carroll, 12 LCR 359 (2004) (Long, J.); Schultz v. Blomgren, 15 LCR 551 (2007) (Sands, J.).
[Note 18] LaBarre also testified that the standing water in the Parking Area, under the vehicles, has caused rust damage to LaBarre/Scotts vehicles. There is an issue with respect to causation in this regard.
[Note 19] At both site views, the court also noticed that the slope of Locus is far steeper than the slope of the lot abutting Locus to the west. This differentiation is also noted on the 2008 Plan.
[Note 20] Lot size is not a relevant criteria in determining whether a variance is appropriate. This court has not relied on size to determine the legitimacy of the Variance.
[Note 21] LaBarre presented testimony that the pitched roof of the Garage will mitigate flooding in the basement of the LaBarre/Scott home. This court is not convinced that the Garage will have a significant impact on flooding of the home. Nonetheless, it is clear that the Garage will mitigate the impact of snow and ice accumulation on the Parking Area. It will be much easier for LaBarre/Scott to access their vehicles in the winter months.
[Note 22] This court again notes that it need not reach this issue because of lack of standing. It should also be noted that this court is ruling only on the specific issues before this court, i.e. a variance from front yard setback. This decision is silent as to the extent that any other variance and/or special permit issues might have been raised but were not before this court. For example, in their post-trial brief Plaintiffs allude to the fact that Locus may be in violation of building coverage, as such is defined in the Bylaw, but Plaintiffs do not provide specific facts in this regard and there is no plan in evidence that explicitly indicates Locus is in violation of building coverage restrictions.