Feldman v. Board of Appeal of Boston, 89-P-1050

• Decision Date: 27 September 1990
• Docket Number: No. 89-P-1050,89-P-1050
• Citation: 29 Mass.App.Ct. 296,559 N.E.2d 1263
• Parties: Steven FELDMAN et al. 1 v. BOARD OF APPEAL OF BOSTON et al. 2
• Court: Appeals Court of Massachusetts

Page 1263

559 N.E.2d 1263

29 Mass.App.Ct. 296

Steven FELDMAN et al. ¹ v. BOARD OF APPEAL OF BOSTON et al. ²

No. 89-P-1050.

Appeals Court of Massachusetts Suffolk.

Argued June 8, 1990.

Decided Sept. 27, 1990.

Howard P. Speicher, Boston, for plaintiffs.

Thomas P. McCusker, Jr., Westwood, for James McKernan.

Before KASS, KAPLAN and PORADA, JJ.

KASS, Justice.

When the board of appeal of Boston granted James McKernan a variance to divide his property at 57 Mount Vernon Street, West Roxbury, into two undersized lots, the plaintiffs Feldman and McCaffrey sought judicial review. A judge of the Superior Court, acting under St.1956, c. 665, § 11, required the plaintiffs to file in court a surety bond in the amount of $10,000 ³ against which McKernan might recover damages and costs should the decision of the board ultimately be upheld. The plaintiffs, claiming inability, did not file the bond and, upon motion, their action was dismissed. We decide that in view of the zoning issue presented, on which the plaintiffs were virtually certain to prevail, the judge should have required a bond for only a nominal amount. We, therefore, vacate the judgment of dismissal.

1. The underlying zoning case. McKernan owned a lot (the "locus") which contained 15,295 square feet and had frontage of 100 feet. In the S-.5 (single family residence, floor area ratio of .5) zoning district which pertained to the locus, the minimum lot size is 6,000 square feet and the required minimum street frontage and lot width is sixty feet. A two-story house and a two-car garage occupied the westerly portion of the locus. McKernan sought--and received--a variance to divide the lot in two, one of which (to contain the existing structures) would be 51.7 feet wide; the second (on which an additional house and garage would be built) to be 48.3 feet wide. The resulting lots, therefore, were undersized as to frontage and width.

The invalidity of just such a variance was recently the subject of discussion in Karet v. Zoning Bd. of Appeals of Worcester, 27 Mass.App.Ct. 439, 440-441, 539 N.E.2d 81 (1989). We held in that case "that a deficiency in the frontage of a lot is not a 'circumstance[ ] relating to the soil conditions, shape, or topography of such land' that will satisfy one of the several statutory prerequisites for a variance...." See also Warren v. Zoning Bd. of Appeals of Amherst, 383 Mass. 1, 11, 416 N.E.2d 1382 (1981); Guiragossian v. Board of Appeals of Watertown, 21 Mass.App.Ct. 111, 116, 485 N.E.2d 686 (1985); DiCicco v. Berwick, 27 Mass.App.Ct. 312, 314-315, 537 N.E.2d 1267 (1989) (applied Boston's zoning law). The Karet opinion emphasized particularly that a lot cannot qualify for a variance based on subminimum dimensions when the undersized lots were created by transfer of land from a once conforming lot. See, in this regard: Raia v. Board of Appeals of N. Reading, 4 Mass.App.Ct. 318, 322, 347 N.E.2d 694 (1976), and cases cited; Arrigo v. Planning Bd. of Franklin, 12 Mass.App.Ct. 802, 803-804, 429 N.E.2d 355 (1981); Gordon v. Zoning Bd. of Appeals of Lee, 22 Mass.App.Ct. 343, 349- 494 N.E.2d 14 (1986); Shafer v. Zoning Bd. of Appeals of Scituate, 24 Mass.App.Ct. 966, 967, 511 N.E.2d 635 (1987); Karet v. Zoning Bd. of Appeals of Worcester, 27 Mass.App.Ct. at 440-441, 539 N.E.2d 81.

On the merits, therefore, the plaintiffs enjoyed virtually certain prospects of success.

2. The bond provision. A bond provision designed to discourage frivolous and vexatious appeals from the grant of zoning relief and to indemnify persons who have received zoning relief against all damages and losses flowing from such appeals has long been a feature of the special laws relating to Boston zoning. See St.1924, c. 488, as amended by St.1941, c. 373, § 18 (the old enabling act), and St.1956, c. 665, § 11 (the new enabling act).

In the leading case of Damaskos v. Board of Appeal of Boston, 359 Mass. 55, 64, 267 N.E.2d 897 (1971), the court said that the countervailing considerations which are to guide judicial discretion in determining the amount of a bond are: (1) the objective of inhibiting frivolous and vexatious appeals, as already mentioned, versus ⁴ (2) not unreasonably inhibiting meritorious appeals from variances or conditional uses (the Boston act's vocabulary for what under G.L. c. 40A is known as a special permit) which are unlawfully granted.

Without a careful balancing of interests, however, an appellant with a meritorious appeal might be barred from bringing a claim if the appellant is without resources to pay for, and provide collateral for, a substantial bond. Damaskos v. Board of Appeal of Boston, 359 Mass. at 58, 267 N.E.2d 897. See Kargman v. Dustin, 5 Mass.App.Ct. 101, 113, 359 N.E.2d 971 (1977). The Damaskos opinion, at 65, requires the judge who sets the bond amount to investigate carefully whether a substantial bond would preclude a meritorious review unjustly. The judge is to weigh the plaintiff's resources against the potential harm to the beneficiary of the challenged zoning relief. Jack v. Board of Appeal of Boston, 15 Mass.App.Ct. 311, 317-318, 445 N.E.2d 184 (1983). This does not mean a person challenging a grant of a variance or exception need not put up a bond just because that person cannot afford one; ⁵ the resources of...