Gordon v. Zoning Bd. of Appeals of Lee

• Decision Date: 12 June 1986
• Citation: 22 Mass.App.Ct. 343,494 N.E.2d 14
• Court: Appeals Court of Massachusetts
• Parties: Annette GORDON v. ZONING BOARD OF APPEALS OF LEE & others. 1

Page 14

494 N.E.2d 14

22 Mass.App.Ct. 343

Annette GORDON v. ZONING BOARD OF APPEALS OF LEE & others. ¹

Appeals Court of Massachusetts,

Berkshire.

Argued Jan. 23, 1986.

Decided June 12, 1986.

Jessie Doyle Deely, Lee, for plaintiff.

Don C. Hunter, Lee, for William B. Salinetti & another.

Before PERRETTA, CUTTER and SMITH, JJ.

PERRETTA, Justice.

After the defendant board granted a variance so that a house and garage could be built on a parcel of land lacking the frontage required by the zoning by-law, the plaintiff abutter appealed to the Superior Court pursuant to G.L. c. 40A, § 17. ² The judge heard the matter, de novo, and made findings in support of his conclusion that the prerequisites to the granting of a variance, as set out in G.L. c. 40A, § 10, had been met. However, because he also concluded that the board's decision was too conclusory but nonetheless remediable, ³ he annulled that decision and remanded the matter for further proceedings. Upon the board's resubmission of more particularized findings, the judge affirmed the board's decision. Although we agree with the judge that the plaintiff abutter has standing to challenge the granting of the variance, we conclude that his findings setting out the justification for the variance lack evidentiary support. We reverse.

1. The Evidence.

At the Superior Court trial, there was evidence to show the following facts. In 1969, William B. Salinetti (Salinetti) and his three sons, as tenants in common, bought about eight to nine acres of vacant land which, on its westerly side, had well over 600 feet of frontage on Fairview Street in Lee (the town). To the east, the land abuts about thirty acres of land owned by the plaintiff, Gordon. The northern boundary runs along a seventy-five-foot wide right of way which is included in the parcel, and the southern boundary is the Massachusetts Turnpike, to which there is no access from the Salinetti or Gordon properties.

In 1976, when the zoning by-law required residential building lots to have at least 125 feet of frontage, the Brisson Corporation purchased a portion of the Salinettis' land fronting on Fairview Street, leaving the Salinettis with more than five acres (the locus) to the back of the land which abuts the Gordon property. ⁴ According to Salinetti, Brisson first intended to lay out five lots, each having 100 feet of frontage. The planning board supposedly agreed to this proposal because other house lots on Fairview Street had that frontage and that was all that had been required under the earlier zoning by-law. When the selectmen objected, however, Brisson divided the land into lots of which four met the minimum 125 feet frontage requirement.

After the Brisson purchase, the Salinettis' land, the locus, could be characterized as a "double pork-chop." The frontage on Fairview Street retained by the Salinettis is divided into two parts: the seventy-five-foot wide right of way at the northerly end and a twenty-five-foot wide strip of land at the southerly end. Gordon has an easement, from her land to Fairview Street, in part over the strip seventy-five feet in width at the northern end of the locus. The area, after the Brisson purchase, is shown on the accompanying sketch, infra.

When the Salinettis sold their land to Brisson in 1976, Salinetti was aware that the zoning by-law required for residential use a minimum frontage on Fairview Street of 125 feet. However, according to Salinetti's testimony, he "had no further plans for the land" other than to enter upon it occasionally "to get some cordwood," which is the reason the Salinettis retained the southerly twenty-five-foot strip.

Salinetti further testified that some six years later, in 1982, he was approached by the plaintiff's husband about purchasing the locus, the remaining parcel behind the house lots fronting on Fairview Street. The parties, however, could not agree on price. In January, 1983, Roger Scheurer viewed the locus with an eye towards its purchase. A resident to the north of Salinetti's land saw Scheurer and Salinetti inspecting the locus and approached Salinetti about buying the land because he "didn't want any building to go up there, he liked his privacy." Salinetti gave him a week to buy the property, but this resident "backed out." About the same time that Salinetti was negotiating with Scheurer, Salinetti was also approached by a lumber company that "wanted to go in and take the rest of the pine out" but he told the company representative that he "couldn't give him any answer at the present time." ⁵ That could have been because the Salinettis and Scheurer had reached an agreement of purchase and sale subject to the granting of a variance to use the northerly seventy-five-foot strip as access to a single family house and garage that Scheurer intends to build on the northeastern corner of the locus.

Subdividing the locus has never been considered by Salinetti because, as he testified, he had a "reliable figure of $100 a foot" (or between $30,000 to $40,000 in all) as the cost of developing a "town approved roadway along that seventy-five-foot right-of-way." Salinetti stated that he "couldn't afford to do that if I wanted to."

Roger Scheurer, the prospective purchaser of the locus, testified that he had looked for a residential building lot in Lee for about a year. He spoke with real estate agents and drove about the town looking for house lots. He would then approach the lot owners to "see if they had land for sale; and there was very little response, very little land available to purchase." From these events, Scheurer formed the opinion that, for a prospective purchaser of a lot in Lee, there is a shortage of available lots. Scheurer described the shape of the locus as "unique in that it has frontage which is noncontinuous." He, like Salinetti, has no intention of subdividing the locus because the cost of building a town approved road was "underestimated" by Salinetti; it would cost a "quarter of a million dollars to put in a road."

Water drainage in the area is also "unique" according to Scheurer. The land at the northeastern corner, the proposed building site, is relatively level. The slope of the land carries off water from the northeast corner of the locus, creating a water condition at the bottom of the slope nearest Fairview Street. The Gordon property was not as "wet in the same fashion [in] that they were more or less on a top of the hill, until it drops off on the other side." At least three of the houses on the building lots on Fairview Street "have water problems in their cellars."

2. Gordon's Standing.

General Laws c. 40A, § 17, as amended through St. 1982, c. 533, § 1, provides that "[a]ny person aggrieved by a decision of the board of appeals.... may appeal to the superior court." As an abutter entitled to receive notice under G.L. c. 40A, § 11, of the public hearing before the board on the application for a variance, Gordon is presumed to be a person aggrieved. That presumption is rebuttable. See Marotta v. Board of Appeals of Revere, 336 Mass. 199, 204, 143 N.E.2d 270 (1957). Citing Marotta, the trial judge stated: "In the absence of evidence to the contrary, I find that the plaintiff Gordon is an aggrieved party within the meaning of the statute and has a right of appeal."

We see no error in the trial judge's conclusion that Gordon's presumption of standing had not been rebutted. As Salinetti testified, "use of that seventy-five foot right-of-way [is] incorporated in [Gordon's] deed and mine." That it would be necessary to clear and improve part of Gordon's right of way for Scheurer to put in his proposed driveway might appear to him and Salinetti as a benefit to Gordon, but it was not evidence such as to require the trial judge to conclude that Gordon lacked standing to challenge the granting of the variance. "[W]hether a party is 'aggrieved' is a matter of degree [citations omitted]; and the variety of circumstances which may arise seems to call for the exercise of discretion rather than the imposition of an inflexible rule. No abuse of discretion has been shown in this case." Rafferty v. Sancta Maria Hosp., 5 Mass.App.Ct. 624, 629, 367 N.E.2d 856 (1977). See also Paulding v. Bruins, 18 Mass.App.Ct. 707, 709, 470 N.E.2d 398 (1984).

3. The Variance.

General Laws c. 40A, § 10, as amended by St. 1977, c. 829, § 4B, authorizes a board of appeals to grant a variance only where it "specifically finds [a] that owing to circumstances relating to the soil conditions, shape, or topography of such land ... and especially affecting such land ... but not affecting generally the zoning district in which it is located, [b] a literal enforcement of the provisions of the ... by-law would involve substantial hardship, financial or otherwise, to the petitioner or appellant, and [c] 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." On an appeal to the Superior Court under G.L. c. 40A, § 17, the judge hears the matter de novo and determines the validity of the board's decision on the basis of the facts found by the judge. See Kirkwood v. Board of Appeals of Rockport, 17 Mass.App.Ct. 423, 426-427, 458 N.E.2d 1213 (1984), and cases therein cited. All the statutory prerequisites set out in § 10 must be met. Id. at 427-428, 458 N.E.2d 1213.

On the evidence presented in the Superior Court and described in part one of this opinion, the trial judge found as follows. The locus is a "double pork chop" lot having a shape "so unusual that it also differs from most, if not all, of the lots in the zoning district." Moreover, the locus is about ten times larger than the surrounding lots fronting on Fairview Street.

Use of the locus is limited by its topography to the construction of a single family house on the northeastern corner, the "relatively level" portion of the locus. The...