Guiragossian v. Board of Appeals of Watertown

• Decision Date: 03 January 1986
• Citation: 485 N.E.2d 686,21 Mass.App.Ct. 111
• Court: Appeals Court of Massachusetts
• Parties: Valentina GUIRAGOSSIAN v. BOARD OF APPEALS OF WATERTOWN et al. 1

Page 686

485 N.E.2d 686

21 Mass.App.Ct. 111

Valentina GUIRAGOSSIAN v. BOARD OF APPEALS OF WATERTOWN et al. ¹

Appeals Court of Massachusetts Middlesex.

Argued Sept. 9, 1985.

Decided Nov. 19, 1985.

Further Appellate Review Denied

Jan. 3, 1986.

F. Joseph Gentili, Lexington, for plaintiff.

John F. Corbett (Mary E. Corbett, Watertown, with him) for Stanley Kruszewski.

Belinda Bean, Watertown, for Board of Appeals of Watertown, was present but did not argue.

Before GREANEY, C.J., and GRANT and FINE, JJ.

GREANEY, Chief Justice.

This is an appeal by an aggrieved landowner (Valentina Guiragossian) from a judgment of the Superior Court. The judgment upheld decisions of the board of appeals of Watertown that granted Stanley Kruszewski use and other variances, and a special permit for the construction of a residential condominium project in an industrial zone. We reverse the judgment.

The pertinent facts are as follows. The parcel is known as 30 Rear Washburn and 53 Rear Franklin Streets, Watertown. It contains 56,800 square feet of land and is located in an I-Industrial district, where any residential use is prohibited.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The shape of the parcel is as depicted on the sketch. It is bounded on one side and part of another by an industrial district and on the remaining margins by a T-Two Family residential district. The parcel has no street frontage. Access to it is provided by two rights of way through the residential district, one from Washburn Street and one from Franklin Street. The right of way from Washburn Street is eighteen feet wide, fourteen feet of which are over Guiragossian's property. The right of way from Franklin Street is twelve feet wide. Guiragossian owns a two-family dwelling at 34 Washburn Street in the T-Two Family residential district. Her lot abuts the parcel.

Four industrial structures are situated on the parcel. The three buildings on the portion of the parcel closest to Guiragossian's property are not currently used. Past users of this portion of the land include a road construction firm, a machine company and, originally, a commercial laundry establishment. The remainder of the land is presently occupied and used by a business (Ross Industrial) that repairs heavy construction equipment, primarily forklift trucks. There is an existing industrial use, Ionics, on a 24,306 square foot lot (lot 10/37), abutting part of the parcel's northeastern boundary, and another industrial use (Swisstronics) abuts the parcel's southern boundary (lot 10/38).

Kurszewski has entered into purchase and sale agreements to acquire the locus, subject to his obtaining necessary variances and a special permit for his project. The project he proposes would involve the rehabilitation of two existing industrial buildings (one of which apparently has some historical and architectural significance) and the construction of two new buildings. The four buildings would be used as twenty-eight residential condominium units. ² Forty-one onsite parking spaces, the minimum number required by the zoning by-law, would be provided. The condominium buildings would be located on the portion of the parcel most distant from the adjoining industrial property but closest to existing abutting residences and would be situated so as to screen the parking and most of the physical activity of the condominium occupants from the view of existing residential abutters. Restrictions requiring one-way traffic circulation were imposed on the project: traffic would enter the parcel over the Washburn Street right of way, and would exit over the Franklin Street right of way.

The board of appeals granted Kruszewski a use variance from § 5.1 of the zoning by-law to allow residential development on the parcel, which, as previously indicated, is a use prohibited in an I-Industrial district. The plans for the project and the narrow rights of way necessitated that the board grant additional variances from the requirements of the by-law for: yard dimensions (§ 5.30 of the by-law); distance between multiple buildings on a single lot (§ 5.0[d] ); parking aisle width (§ 6.10[d] ); and interior landscaping of parking areas with more than twenty spaces (§ 6.10[f] ). Because the parcel has no street frontage, a variance from the by-law's frontage requirements was also granted (§ 5.30). Finally, the board granted a special permit under §§ 9.03 and 9.11 of the by-law, which govern the construction or conversion of buildings designed to have four or more dwelling units.

1. We first restate some general principles governing review of decisions of local zoning boards granting variances.

On appeal to the Superior Court, the judge is required to hear the matter de novo and to determine the legal validity of the board's decision concerning the variance upon the facts found by the judge. G.L. c. 40A, § 17. Josephs v. Board of Appeals of Brookline, 362 Mass. 290, 295, 285 N.E.2d 436 (1972). Garvey v. Board of Appeals of Amherst, 9 Mass.App. 856, 400 N.E.2d 880 (1980). Since review is de novo, the judge is not restricted to the evidence that was introduced before the board, see Bicknell Realty Co. v. Board of Appeal of Boston, 330 Mass. 676, 679, 116 N.E.2d 570 (1953), and the board's decision carries no evidentiary weight on appeal. Devine v. Zoning Bd. of Appeals of Lynn, 332 Mass 319, 321, 125 N.E.2d 131 (1955). Josephs v. Board of Appeals of Brookline, supra.

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 ordinance or 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 [d] without nullifying or substantially derogating from the intent or purpose of such ordinance or by-law." See Warren v. Zoning Board of Appeals of Amherst, 383 Mass. 1, 9, 416 N.E.2d 1382 (1981).

"No person has a legal right to a variance and they are to be granted sparingly." Damaskos v. Board of Appeal of Boston, 359 Mass. 55, 61, 267 N.E.2d 897 (1971), and cases cited. At the hearing in the Superior Court the burden is upon the person seeking a variance, and the board granting one, to produce evidence that each of the discrete statutory prerequisites has been met and that the variance is justified. Warren v. Board of Appeals of Amherst, supra at 10, 416 N.E.2d 1382. The judge, like the board of appeals, may uphold the variance only if it can be expressly found that the statutory prerequisites have been met. Josephs v. Board of Appeals of Brookline, 362 Mass. at 292, 285 N.E.2d 436. Since the requirements for the grant of a variance are conjunctive, not disjunctive, a failure to establish any one of them is fatal. See Blackman v. Board of Appeals of Barnstable, 334 Mass. 446, 450, 136 N.E.2d 198 (1956).

2. In the present case, the principal objections pursued on appeal relate to the judge's conclusions that special circumstances relating to the parcel's shape differentiate the parcel from the rest of the district and give rise to substantial hardship. In reaching this conclusion, the judge noted that the parcel is roughly triangular, that it lacks street frontage, and that access to and from it is over limited rights of way. He found that the "parcel does not lend itself to commercial or retail use as there would be no view from the street or sidewalk" and that the parcel's "intru[sion] into a residential district [makes] the construction of dwelling units ... more in harmony with the surrounding area." The judge further determined that substantial hardship had been established because the parcel's lack of frontage has "discouraged buyers who might contemplate putting the parcel to industrial use," ³ and because "one of the existing buildings is not suited to industrial development" since "[i]t is a multistory frame building which no longer fulfills the practical needs of today's industry." ⁴

Applying the general principles stated above, we do not think the circumstances relied upon by the judge make out the "shape" prerequisite for the grant of a variance. ⁵ The configuration of the parcel is not significantly unusual, particularly when compared, for example, with the unique porkchop shaped lot at issue in Paulding v. Bruins, 18 Mass.App. 707, 708, 470 N.E.2d 398 (1984). As the testimony of Kruszewski's architect makes apparent, this is not a case where the irregular perimeter of a parcel would prevent the siting of a building that conforms to existing zoning. Indeed, if the parcel fronted on Washburn Street, the case would not be here. The real problem is not, therefore, with the parcel's shape. Rather, the problem lies in the parcel's lack of street frontage, the limited access through narrow rights of way, and the necessity of approaching these access points through a residential area. Lack of frontage alone, however, is not generally enought to sustain the grant of a variance. See Warren v. Zoning Board of Appeals of Amherst, 383 Mass. at 11, 416 N.E.2d 1382. Nor is the lack of more convenient or wider access decisive, particularly where the deficiency in access does not arise from the unusual shape of the parcel itself. By way of contrast, again with reference to the Paulding case, supra, the elongated neck of the porkchop shaped lot, as an attribute of the land itself, resulted in such miniscule frontage and access that virtually all practical use of the property was foreclosed without a variance. Compare also Wolfman v. Board of Appeals of Brookline, 15 Mass.App. 112, 444 N.E.2d 943 (1983), where the...