GUARANTEED BUILDERS, INC. v. DANIEL HENEY, PAMELA HOLMES, and SEAN HOLLAND, as they constitute the Zoning Board of Appeals of the Town of Douglas AND JOSEPH BYLINSKI, Intervenor

Guaranteed Builders, Inc. (Guaranteed) filed its complaint on July 5, 2012. Guaranteed’s complaint is an appeal pursuant to G.L. c. 40A, § 17, of the defendant Zoning Board of Appeals of the Town of Douglas’s (ZBA) denial of Guaranteed’s application for a variance on the property at 103 Shore Road, Douglas, Massachusetts (the Property). The Motion of Joseph Bylinski to Intervene was allowed on August 2, 2012. Intervenor Bylinski filed his Motion for Summary Judgment, along with his Statement of Material Facts, Memorandum in Support of Joseph Bylinski’s Motion for Summary Judgment, Affidavit of Joseph Bylinski, and Appendix, on November 5, 2012. On November 30, 2012, counsel for the ZBA filed a letter stating, in part, that the “Board supports any judgment by this Court which upholds the Board’s denial of the Variance at issue in this matter. Nonetheless, the Board does not intend to file a brief or other papers supporting Mr. Bylinski’s Motion.”

On December 3, 2012, Guaranteed filed Plaintiff’s Memorandum in Opposition to Joseph Bylinski’s Motion for Summary Judgment, Guaranteed Builders, Inc.’s Response to Defendant’s Statement of Material Facts, Plaintiff’s Additional Facts, and Appendix of Plaintiff. On December 12, 2012, Bylinski filed Joseph Bylinski’s Supplemental Memorandum in Support of his Motion for Summary Judgment, and his Motion to Strike the Response of Guaranteed Builders and Developers, Inc. to Statement of Material Facts (Motion to Strike). Guaranteed filed its Opposition to Motion to Strike Responses of Guaranteed Builders and Developers, Inc. on December 15, 2012.

I heard argument on the Motion for Summary Judgment and the Motion to Strike on December 18, 2012, and took both motions under advisement. For the reasons set forth below, the Motion to Strike is DENIED, and the Motion for Summary Judgment is ALLOWED.

Motion to Strike

Bylinski has moved to strike Guaranteed’s responses to paragraphs 7, 8, 13, and 16 of Bylinski’s Statement of Material Facts. Bylinski argues that those responses make assertions of fact which are not responsive to the statements on the paragraphs and for which there is no support in the record. Guaranteed has submitted the Affidavit of Louis Tusino, with exhibits. The affidavit and exhibits provide support for the assertions in Guaranteed’s responses. While these assertions are disputed, they are sufficiently supported by affidavit so as to survive the Motion to Strike. See Mass. R. Civ. P. 56(c), 56(e). The Motion to Strike is denied.

Motion for Summary Judgment

Summary judgment may be entered if the “pleadings, depositions, answers to interrogatories, and responses to requests for admission . . . together with affidavits . . . show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Mass. R. Civ. P. 56(c). In viewing the factual record presented as part of the motion, I am to draw “all logically permissible inferences” from the facts in favor of the non-moving party. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). “Summary judgment is appropriate when, ‘viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.’” Regis Coll. v. Town of Weston, 462 Mass. 280 , 284 (2012), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991). Where the non-moving party bears the burden of proof, the ”burden on the moving party may be discharged by showing that there is an absence of evidence to support the non-moving party’s case.” Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 711 (1991); see Regis Coll., 462 Mass. at 291-292.

Undisputed Facts

The court finds that the following facts are undisputed.

1. The Property is owned by Louis C. Tusino, by a deed dated October 23, 1989 and recorded in the Worcester County Registry of Deeds (registry) at Book 12415, Page 325 on October 24, 1989.

2. The Property consists of approximately 6,684 square feet. It is roughly rectangular in shape, with 47.5 feet of frontage on Shore Road to the north. It slopes gradually from Shore Road to its somewhat irregular rear lot line along Wallum Lake. It is similar in size and width to adjoining lots on Shore Road.

3. Under the Town of Douglas Zoning By-Law and zoning map, the Property is located in the Rural Agricultural (R-A) zoning district.

4. Single family dwellings are a permitted use in the R-A district. The dimensional requirements for residential dwelling uses are as follows: minimum lot area, 90,000 square feet; frontage on a public way, 200 feet; front yard setback, 50 feet; side yard setback, 25 feet; rear yard setback, 25 feet.

5. The Property, like the adjoining lots on Shore Road, does not meet the minimum lot size or frontage requirements in the R-A district.

6. On July 8, 2008, Guaranteed, on behalf of Tusino as the owner of the Property, obtained a building permit to construct a house on the Property. At some time afterward, Guaranteed poured a concrete foundation for the house. The foundation is located twenty-five feet from Shore Road, eight feet from the side property line to the north, and fourteen feet from the side property line to the south.

7. In February 2009, Bylinski sent an enforcement request to the Town of Douglas Building Commissioner, seeking revocation of the building permit. That request was denied, and on February 23, 2009, Bylinski appealed the denial to the ZBA.

8. The ZBA failed to act on Bylinski’s appeal within 100 days. Bylinski claimed a constructive approval of his appeal, i.e., that the building permit was revoked.

9. Guaranteed brought an action in Worcester Superior Court, Guaranteed Builders, Inc. v. Colin H. Haire, Harold Davis and Joseph Fitzpatrick as they constitute the Zoning Board of Appeals of the Town of Douglas and Joseph Bylinski, civil action no. WOCV2009-02052, challenging the constructive approval (the Superior Court action). Judgment was entered in the Superior Court action on January 31, 2012, affirming the constructive revocation of the building permit. That judgment is final.

10. At some time between Bylinski’s enforcement request and the entry of judgment in the Superior Court action, Guaranteed constructed the house on the Property on behalf of Tusino.

11. On February 15, 2012, Guaranteed, on behalf of Tusino, filed with the ZBA an application for a variance from the minimum lot size, frontage, and front, side and rear yard setback requirements of the R-A district (the variance request).

12. After publication and notice, the ZBA held a hearing on the variance request on March 7, 2012. The hearing was continued to April 4, 2012, May 2, 2012, and June 6, 2012, when it was closed. Guaranteed agreed to extend the time for the ZBA’s decision to June 7, 2012, with an additional fourteen days for filing of the decision by June 21, 2012.

13. On June 6, 2012, the ZBA voted unanimously to deny the variance request. The ZBA’s decision was filed with the Town Clerk on June 19, 2012 (the denial).

Discussion

An appeal of a zoning board of appeals decision is de novo; that is, in an action under § 17 the “court shall hear all the evidence pertinent to the authority of the board . . . and determine the facts, and, upon the facts as so determined, annul such decision if found to exceed the authority of such board . . . or make such other decree as justice and equity may require.” G.L. c. 40A, § 17. In this action, Guaranteed has appealed from the ZBA’s denial of its variance request. Because no one has a right to a variance, “[r]arely can a court order the granting of a variance when the board has denied the petition.” Ferrante v. Board of Appeals of Northampton, 345 Mass. 158 , 161 (1962); see Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555 , 559 (1954). The burden for overturning a denial of a variance request is therefore very high: the plaintiff must prove that the variance was denied solely on a legally untenable ground or that the decision was arbitrary or capricious. DiGiovanni v. Board of Appeals of Rockport, 19 Mass. App. Ct. 339 , 349-350 (1985); Geryk v. Zoning Appeals Bd. of Easthampton, 8 Mass. App. Ct. 683 , 684 (1979); see Pendergast, 331 Mass. at 559-560. Thus, while the Court must review the denial de novo, see 39 Joy St. Condominium Ass’n v. Board of Appeal of Boston, 426 Mass. 485 , 488 (1998), it does not concern itself with the wisdom of the denial, but only with whether any of the grounds for denial had any legal validity and a substantial basis in fact. DiGiovanni, 19 Mass. App. Ct. at 349; Wolfman v. Board of Appeals of Brookline, 15 Mass. App. Ct. 112 , 119 (1983).

To grant a variance, a board is obligated to find that

owing to circumstances relating to the soil conditions, shape, or topography of [the Property] but not affecting generally the zoning district in which it is located, a literal enforcement of the provisions of the . . . by-law would involve substantial hardship, financial or otherwise, to [Guaranteed], and . . . 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 . . . by-law.

G.L. c. 40A, § 10. All of these conditions must be met to issue a variance. Planning Bd. of Springfield v. Board of Appeals of Springfield, 355 Mass. 460 (1969); Ferrante, 345 Mass. at 161; Spaulding v. Board of Appeals of Leicester, 334 Mass. 688 , 692 (1956). Thus, the ZBA could only grant Guaranteed’s variance request if it found that the request demonstrated each of the three conditions for a variance: (a) that the Property has soil conditions, shape or topography that are different from the other properties in the zoning district, (b) that because of these unique conditions enforcement of the zoning bylaw would create a hardship, financial or otherwise, and (c) that the requested variance can be granted without substantial detriment to the public good and without derogating from the intent or purpose of the bylaw.

The ZBA found that Guaranteed’s request did not satisfy any of these conditions, and issued the denial. The ZBA made four findings. First, it found that the “Property is not unique with respect to soil, shape or topography. It is relatively flat, and has no demonstrably unique soil conditions. It is also of a similar shape and size as most other lots in the area. That is, it is a small rectangular parcel.” Second, it found that the

Applicant was unable to demonstrate any hardship flowing from any unique conditions. Although the Board was cognizant of the fact that the results of litigation may have left the Applicant with a non-conforming structure, such hardship was largely created by the Applicant itself. The Applicant chose to construct the house, notwithstanding the abutting property owner’s challenge to the building permit.

Third, the ZBA found that a variance cannot be granted without derogating from the intent of the bylaw. The Bylaw requires substantially more lot area, frontage and setbacks than the Property exhibits. Allowing an exception in this case would hinder the Town’s ability to enforce its bylaws, especially given the large number of existing undersized lots that are not otherwise entitled to exemptions under the Zoning Act and the Town’s Zoning Bylaws.

Fourth and finally, the ZBA found that it considered a novel interpretation of a unique aspect of G.L. that potentially relates to the granting of a variance for a unique structure. However, a motion (by member Sean Holland) to grant a variance under this provision failed in a vote of 1-2 (with members Dan Heney and Pam Holmes voting “no”). After consultation with Town Counsel on this issue, the Board found that the interpretation of the statute in this manner was not applicable, that no uniqueness existed, and that granting of the variance would derogate from the intent of the bylaw.

The ZBA was not obligated to set forth in detail the reasons for its denial, although it did so. If any of its reasons for denying any of the conditions is supported by the evidence, the denial must be affirmed. Ferrante, 345 Mass. at 161; Cefalo v. Board of Appeal of Boston, 332 Mass. 178 , 181 (1955); Gamache v. Town of Acushnet, 14 Mass. App. Ct. 215 , 220 (1982). Based on the undisputed facts and Guaranteed’s own statement of its disputed facts, which I credit for the purposes of this motion, I find that there is sufficient evidence to support the ZBA’s first finding that the Property’s shape and topography is not unique and that Guaranteed has presented no evidence or claim to challenge the ZBA’s finding that the Property’s soil conditions are not unique.

The undisputed facts before me disclose that there is nothing unique about the Property’s shape. It is rectangular, with its rear border abutting Wallum Lake. It is similar in shape to abutting properties (even if it is somewhat larger). That it does not meet the frontage or minimum lot size requirements of the R-A district does not constitute a unique lot shape that would support a variance. Tsagronis v. Board of Appeals of Wareham, 415 Mass. 329 , 332 (1993); Mitchell v. Board of Appeals of Revere, 27 Mass. App. Ct. 1119 , 1120 (1989). The undisputed facts also disclose that there is nothing unique about the Property’s topography. Like the other lots in the area, the Property slopes gently toward the lake.

The ZBA also found that the “Property is not unique with respect to soil” conditions. As discussed, it is Guaranteed’s burden to present evidence to support its claim that the ZBA erred in not granting the variance application. One essential element of its burden is to prove that the ZBA’s finding with respect to the Property’s soil conditions is not supported by the evidence or is arbitrary and capricious. In its response to Bylinski’s statement of material facts, in its own statement of additional facts, and in the materials supporting those statements, Guaranteed presented no evidence that the Property’s soil conditions are unique. Guaranteed instead stated that the Property is unique for the following reasons:

Uniqueness as to: private community road, state forest, lake single family residence . . . structure was already erected under a legally issued building permit-hardship unique conditions exist similar to all other substandard lots in area. Zoning Board did not act under own free will. Town counsel intervened by directing and instructing board on how to vote. Board should be able to make own decision. The Board consisted of a contractor, housewife, and practicing attorney. Town Counsel was debating with zoning board member acting attorney over issuance of variance. Board may grant a variance if current condition not detrimental to neighborhood. The building permit was issued during the appeal period and was properly granted. Five year appeal period was over where no other lots could be built upon. Prior owner deeded to daughter before rest of land was taken for a state park to ensure one lot for his family in row of similar lots, size, shape, topography of similar single family homes. . . .

The property is unique in the fact that the building was already constructed pursuant to a building permit that was issued by the Town of Douglas. Construction of the building and the potential non use of the lot constitutes the hardship. Attorney Sean Holland, appeal board member pointed out during the meeting the particular financial hardship but was rebuffed by town counsel at the meeting. Also the lot owned by Mr. Tusino is larger in square footage than the adjacent lot which was issued a building permit for construction of a new home with the same frontage. The issuance of a variance for construction of the intervenor’s new home set precedence which the board now says it is concerned with.

None of these various, allegedly unique aspects of the Property relates to its soil conditions. Guaranteed has presented no evidence that the ZBA erred or acted arbitrarily or capriciously in finding that the soil conditions of the Property are not different from “the zoning district in which it is located.” G.L. c. 40A, § 10. Therefore, “there is an absence of evidence to support” an essential element of non-moving party Guaranteed’s case, and summary judgment should enter. Kourouvacilis, 410 Mass. at 711; see Regis Coll., 462 Mass. at 291-292.

The ZBA’s finding that there is nothing unique about the Property’s shape and topography is supported by the evidence. There is no evidence presented by Guaranteed to suggest that the ZBA was not justified in finding that the Property’s soil conditions are not unique. Guaranteed’s evidence of and arguments concerning its hardship need not be addressed. “Unless circumstances relating to the soil conditions of the land, the shape of the land, or topography of the land cause the hardship, no variance may be granted lawfully.” Tsagronis, 415 Mass. at 331. Nor do I need address whether the ZBA erred in finding that the requested variance would derogate from the intent of the bylaw. The ZBA’s finding that the Property is not unique in soil condition, shape, or topography is supported by the evidence and, because it is so supported, is not arbitrary or capricious. This single finding is sufficient to support the conclusion that the ZBA’s denial of the variance application is legally tenable, had a substantial basis in fact, and is not arbitrary or capricious. [Note 1] Pendergast, 331 Mass. at 559; DiGiovanni, 19 Mass. App. Ct. at 349-350; Gamache, 14 Mass. App. Ct. at 220. Summary judgment shall enter dismissing Guaranteed’s appeal.

Conclusion

For the foregoing reasons, the Motion to Strike is DENIED, and the Motion for Summary Judgment is ALLOWED. Judgment shall enter dismissing this action with prejudice.

Judgment accordingly.