Karet v. Zoning Bd. of Appeals of Worcester

• Decision Date: 07 June 1989
• Docket Number: No. 87-1234,87-1234
• Parties: James KARET, et al. 1 v. ZONING BOARD OF APPEALS OF WORCESTER, et al. 2
• Court: Appeals Court of Massachusetts

Page 81

539 N.E.2d 81

27 Mass.App.Ct. 439

James KARET, et al. ¹ v. ZONING BOARD OF APPEALS OF WORCESTER, et al. ²

No. 87-1234.

Appeals Court of Massachusetts,

Worcester.

Argued May 24, 1988.

Decided June 7, 1989.

Beth C. Schuster, Worcester, for plaintiffs.

John W. Spillane, Worcester, for Peter Kyriakakos, et al.

M. Allison Hamm, Asst. City Sol., for Zoning Bd. of Appeals of Worcester.

Before ARMSTRONG, KAPLAN and BROWN, JJ.

ARMSTRONG, Justice.

The Karets are the owners of one of seven house lots on Denison Road in Worcester, the rear (westerly) lot lines of which abut the long (640.20 feet) easterly sideline of a two and one-quarter or two and one-half acre house lot owned by James and Sophie Kaltsas. The Kaltsases' lot fronts on Flagg Street for a distance of 140 feet. The Kaltsases propose to divide their lot in two, keeping the house and a lot with eighty feet of frontage on Flagg Street and a depth of roughly 370 feet. They have given their daughter Christine Kyriakakos and her husband Peter Kyriakakos an option to acquire the rear lot, together with a strip of land forty feet wide connecting the rear lot to Flagg Street. ³ The Kyriakakoses were granted a variance to construct a residence on the rear lot--a variance made necessary by the fact that the zoning ordinance requires frontage of eighty feet for a house lot in the particular zoning district. The Karets, whose rear property line would abut the proposed Kyriakakos lot for a distance of roughly seventy feet, objected before the board of appeals and filed the instant complaint to have the board's decision overturned. ⁴

The variance cannot stand. It is clear now, if it was not at the time the judge heard the 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 under G.L. c. 40A, § 10, as amended through St.1984, c. 195. 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, 537 N.E.2d 1267 (1989). It is equally clear that a lot can not qualify for a variance if the circumstance creating the hardship is itself the result of a transfer that violates in some respects applicable zoning requirements for buildable lots. Raia v. Board of Appeals of North 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, 349-350, 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). DiCicco v. Berwick, supra.

The problem the Kaltsases face is one that recurs in our cases: how to make use of spacious rear land to build a second dwelling where the frontage is insufficient for two dwellings and where the use of the rear land for only one additional dwelling does not justify the expense of road construction and other amenities that are required for subdivisions. See, e.g., Arrigo v. Planning Bd. of Franklin, supra (attempt to put two houses on ten-acre lot with 386 feet of frontage; required frontage per house, 200 feet); Gordon v. Zoning Bd. of Appeals of Lee, supra (attempt to locate a single family house on five acres of primarily rear land with a frontage of 100 feet; required frontage, 125 feet). The Kaltsases, in a residential zoning district that requires only 10,000 square feet of area per dwelling unit, could lawfully use their acreage for a subdivision of perhaps seven or eight dwellings. Planning boards in some towns, to...