Huntington v. Zoning Bd. of Appeals of Hadley

Decision Date04 December 1981
Citation12 Mass.App.Ct. 710,428 N.E.2d 826
PartiesCatharine HUNTINGTON v. ZONING BOARD OF APPEALS OF HADLEY et al. 1
CourtAppeals Court of Massachusetts

Bradford R. Martin, Jr., Northampton (William E. Dwyer, Northampton, with him), for plaintiff.

Leonard C. Jekanowski, Town Counsel, Northampton, for Zoning Bd. of Appeals of Hadley.

Before GREANEY, PERRETTA and SMITH, JJ.

GREANEY, Justice.

The plaintiff, Catharine Huntington, brought this action in the Superior Court to review a decision of the Hadley zoning board of appeals (board). That decision granted the petition of Joseph F. Wanczyk (defendant) for the removal of a condition imposed on a variance previously granted to him which restricted the duration and transferability of the variance. The Superior Court affirmed the decision of the board. We affirm the judgment of the court.

The defendant owns twelve acres of land in Hadley. Since 1958, the defendant has used a portion of this land adjacent to Route 47 for the operation of a business which manufactures and sells precast concrete products. In 1961, the town adopted a zoning by-law which prohibited manufacturing in the district where the land is located. Following the adoption of the by-law, however, the defendant was allowed to continue his manufacturing operation as a nonconforming use. See G.L. c. 40A, § 5, as in effect prior to St.1975, c. 808, § 3. See now G.L. c. 40A, § 6.

Over the next twelve years, the defendant expanded his business substantially, constructing a new building and outfitting it with specialized heavy equipment at a total investment of approximately $170,000. In 1973, the defendant became concerned that the expansion of the business exceeded that permitted for a nonconforming use, and petitioned the board for a variance.

On May 18, 1973, the board granted the defendant a variance allowing the expanded use subject, however, to seven specific conditions enumerated in its decision. The condition in issue here (number 6) restricted the variance to Wanczyk's "lifetime" and it prohibited the variance from being "transferred to anyone else." The 1973 decision was not appealed, and all parties to this action concede the present validity of the variance and the validity of that condition at the time it was imposed. 2

In 1976, the defendant petitioned the board to remove condition number 6. Since Hadley had not then adopted G.L. c. 40A, as appearing in St.1975, c. 808, § 3 (hereinafter present c. 40A), as permitted by St.1977, c. 829, § 4, amending St.1975, c. 808, § 7, the decision on this petition was governed by the provisions of G.L. c. 40A, as in effect prior to St.1975, c. 808, § 3 (hereinafter former c. 40A). See Casasanta v. Zoning Bd. of Appeals of Milford, 377 Mass. 67, 71-73 & nn. 10, 11, 384 N.E.2d 1218 (1979); Shalbey v. Board of Appeal of Norwood, 6 Mass.App. 521, 524-527, 378 N.E.2d 1001 (1978).

After notice, which the trial court held "proper," including notice to abutters, the board held a public hearing on the defendant's petition. See former G.L. c. 40A, §§ 17-18 (now §§ 10-11). The board also viewed the defendant's property and found that the defendant had erected fences, as required by one of the conditions imposed on the 1973 variance, to prevent the manufacturing operation from being visible to abutters or to the public. Based on its view, the board made a general finding that the defendant was, in the words of the trial court, "in substantial compliance with all the conditions imposed" by the 1973 decision.

On March 15, 1976, the board granted the defendant's petition to remove condition number 6. In support of its action, the board stated that the termination of the variance on the defendant's death would cause substantial hardship because it would render his specialized manufacturing equipment useless, or virtually so, thus causing his investment to be lost to his estate. The decision also stated that even if a subsequent board were willing to grant a new variance for this use, the suspension of operations at the defendant's death would inevitably cause a period of uncertainty and lost income for the defendant's family, and that such needless hardship should be foreseen and avoided. The board concluded that "the continuation of all (the) other restrictions provides assurance that there will be no substantial detriment to the public good and that the intent and purpose of the by-law will continue to be met."

The plaintiff, Huntington, is the owner of land abutting the south side of the defendant's property. Located on her land is a building known as the Huntington House, which is an historic structure visited by tourists. The plaintiff, who lives in Boston, opposed the 1973 petition for the variance by means of a letter to the board, which was read at the public hearing. The grounds of her opposition do not appear in the record, nor does it appear whether she stated any opposition to the 1976 petition. It does appear, however, that the board's primary ground of concern in both proceedings was the visibility of the defendant's operation to visitors to the Huntington House and to the public traveling on Route 47.

Following the board's decision on the 1976 petition, the plaintiff brought this action against the defendant and the board, alleging that the board exceeded its authority in removing the condition because the requirements for a new variance had not been met. See former G.L. c. 40A, § 15 (see now § 10). She did not testify at the hearing in the Superior Court. The trial court found for the defendants, holding that each of the three statutory prerequisites had been met. The court also noted, however, that "as a practical matter" the 1976 decision did not really amount to a grant of a new variance, but rather involved a "modification of an existing variance which had been in effect for ... (nearly) three years."

The plaintiff rejects the suggestion that the board's action constituted merely a "modification" of the original variance, arguing that the board could properly have removed the condition only upon satisfaction of the requirements for a new variance contained in former G.L. c. 40A, § 15. The plaintiff argues further that it was the defendant's burden to make such a showing, Warren v. Board of Appeals of Amherst, Mass.Adv.Sh. (1981) 522, 531, --- Mass. ---, ---, 416 N.E.2d 1382, and cases cited, and that the board and the court both erred in ruling that the statutory requirements had been met here, see Raia v. Board of Appeals of North Reading, 4 Mass.App. 318, 321, 347 N.E.2d 694 (1976).

In our view, it is unnecessary to consider whether the removal of the condition required the same showing necessary for the grant of a new variance. 3 Nor is it necessary to hold that a local zoning board possesses a broad general power to modify substantive conditions attached to an existing variance. 4 Rather, we think that the board's power to remove the condition here is most appropriately analyzed in terms of the nature and effect of the condition itself and in light of the statutory concerns relevant to the grant of a variance.

We look first to the statute. Under the former § 15, the critical factual showing required for a variance was that of unique hardship, i. e., "substantial hardship" which was created by "conditions especially affecting such parcel or such building but not affecting generally the zoning district in which it is located" (emphasis supplied). The exception made available by this statute was a narrow one. At its root is a concern that the grant of a variance be based only upon circumstances which directly affect the real estate and not upon circumstances which cause personal hardship to the owner. "The criteria in the act ... relate to the land, not ... (to) the applicant." Dowd v. Board of Appeals of Dover, 5 Mass.App. 148, 156, 360 N.E.2d 640 (1977) (special permit case). The decisions cited previously (see note 3, supra ) have made this differentiation quite clear by consistently overturning grants of variances predicated only on a showing of personal hardship. The present § 10 continues this emphasis on the land itself and makes the concept even more restrictive by specifying that the special circumstances justifying the grant of a variance must relate to "the soil conditions, shape, or topography" of such land or structures.

In contrast, the condition in issue here bears no relation to any circumstance which affects the underlying real estate. Nor is it aimed at the nature, character, or extent of the use permitted of the estate. 5 Rather, it serves only to limit the duration of the variance itself by tying it to the lifetime and ownership of a particular individual. We view this as inconsistent with the explicit statutory emphasis on the real estate and its use as the basis of the board's inquiry. In effect, such a condition "injects criteria not found in the enabling act." Dowd v. Board of Appeals of Dover, 5 Mass.App. at 156, 360 N.E.2d 640. We further view it as inconsistent with the generally accepted principle that "a variance applies to the land rather than to its current owner, and ... runs with the land when it is conveyed to (another) person." 3 Anderson, American Law of Zoning § 18.64, at 311 & cases cited at n.24 (2d ed. 1977). See 3 Rathkopf, Law of Zoning and Planning § 38.06(1), at 38-61 & cases cited at nn.2, 4, and § 40.02, at 40-2-40-3 & cases cited at n.2 (4th ed. 1981); 6 Rohan, Zoning and Land Use Controls § 43.02(1) & cases cited at n.15 (1981); 5 Williams, American Land Planning Law: Land Use and the Police Power § 133.02 (1975). See also Dowd v. Board of Appeals of Dover, supra. Cf. Colonial Acres, Inc. v. North Reading, 3 Mass.App. 384, 385, 331 N.E.2d 549 (1975).

Personal conditions of the sort presented here are held in disfavor in other jurisdictions. See Fox v. Shriver-Allison Co., 28 Ohio App.2d 175, 181-182, 275 N.E.2d 637 (1971); 3...

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