Geryk v. Zoning Appeals Bd. of Easthampton

• Decision Date: 14 November 1979
• Parties: Henry R. GERYK et al., Trustees, v. ZONING APPEALS BOARD OF EASTHAMPTON et al. 1
• Court: Appeals Court of Massachusetts

Page 733

396 N.E.2d 733

8 Mass.App.Ct. 683

Henry R. GERYK et al., Trustees, v. ZONING APPEALS BOARD OF EASTHAMPTON et al. ¹

Appeals Court of Massachusetts, Hampshire.

Argued Oct. 16, 1979.

Decided Nov. 14, 1979.

Richard M. Howland, Amherst, for Planning Bd. of Easthampton, intervener.

Thomas P. Vincent, Northampton, for plaintiffs.

Before BROWN, DREBEN and KASS, JJ.

KASS, Justice.

From a denial of an application for a variance by the board of appeals of Easthampton, Henry R. Geryk and Rose V. Geryk, the plaintiffs, have appealed pursuant to G.L. c. 40A, § 21, as in effect prior to St.1975, c. 808, § 3. The variance which the Geryks sought would have permitted them to divide a lot into two lots, each of which would have been below the prescribed minimum lot area, and would have permitted the erection on one of those lots of a two- family house in a zoning district where two-family houses were not permitted as of right.

During the course of the proceedings in Superior Court the Geryks opted for a different variance, which would have allowed them to locate one single-family residence on each of the undersized lots, instead of a single-family residence on one lot and a two-family residence on the second lot, as originally requested.

Acting on the basis of a stipulation of facts by the parties, the judge annulled the decision of the board of appeals, and ordered it to grant a variance for the construction of two single-family houses. This grant of a variance, the judge's order provided, was to be made after a hearing, although it is difficult to imagine what benefit would have derived from such a hearing when the board was already under judicial instruction to grant a variance in all events. To reshape in this manner the relief originally sought from the board of appeals is beyond the power of a reviewing court under G.L. c. 40A, § 21, and its successor G.L. c. 40A, § 17, as appearing in St.1975, c. 808, § 3.

Under Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555, 556, 558-560, 120 N.E.2d 916 (1954), and its considerable progeny, a reviewing court may not order the grant of a variance except in the rare case where a variance was denied solely on a legally untenable ground (see e. g. MacGibbon v. Board of Appeals of Duxbury, 369 Mass. 512, 520, 340 N.E.2d 487 (1976), S. C., 369 Mass. 523, 344 N.E.2d 185 (1976)) or because the decision was arbitrary and capricious (see e. g. Lapenas v. Zoning Bd. of Appeals of Brockton, 352 Mass. 530, 533-534, 226 N.E.2d 361 (1967)). A court hearing an appeal from the grant or denial of a variance or a special permit is without administrative discretion. As we said recently in Subaru of New England, Inc. v. Board of Appeals of Canton, --- Mass.App. ---, --- (1979), ^A 395 N.E.2d 880, "a court reviewing a decision of a board denying a permit does not possess the same discretionary power as does the board . . .." By substituting forms of relief different from those originally asked for, the court engages exactly in the sort of administrative intervention which Pendergast warns against. See also Strand v. Planning Bd. of Sudbury, 5 Mass.App.Ct. 18, 21-23, 358 N.E.2d 842 (1977); BOARD OF APPEALS OF DEDHAM V. CORPORATION TIFERETH ISRAEL, 7 MASS.APP. ---, 386 N.E.2D 772 (1979)^B.

The plaintiffs have argued that...