Kirkwood v. Board of Appeals of Rockport

• Decision Date: 24 January 1984
• Citation: Kirkwood v. Board of Appeals of Rockport, 458 N.E.2d 1213, 17 Mass.App.Ct. 423 (Mass. App. 1984)
• Parties: Ora F. KIRKWOOD et al. 1 v. BOARD OF APPEALS OF ROCKPORT et al. 2
• Court: Appeals Court of Massachusetts

Page 1213

458 N.E.2d 1213

17 Mass.App.Ct. 423

Ora F. KIRKWOOD et al. ¹ v. BOARD OF APPEALS OF ROCKPORT et al. ²

Appeals Court of Massachusetts Essex.

Argued Dec. 15, 1983.

Decided Jan. 24, 1984.

Robert J. Muldoon, Jr. (Paul R. Gupta, Boston, and Peter J. Cahill, Gloucester, with him), for John C. Wrightson.

David E. Babson, Gloucester, for plaintiffs.

Before GREANEY, CUTTER and PERRETTA, JJ.

GREANEY, Justice.

This is an appeal by John Wrightson from a judgment of the Superior Court annulling a decision of the board of appeals of Rockport granting him a use variance from the zoning by-law to construct a four-unit condominium in a single residence district. We affirm the judgment.

The pertinent facts and proceedings may be summarized as follows. On December 28, 1979, Wrightson purchased a parcel of vacant land in a single residence district of Rockport ostensibly to build a single family house. This district is the town's most severely restricted zone and permits of right single family dwellings, and certain limited religious, educational, and professional uses. The land in question consists of a ledge of rock containing approximately 43,000 square feet which forms a promontory which is surrounded by the Atlantic Ocean or sand on three sides. Sometime around the turn of the century a large mansion was built on the lot. By the time Rockport adopted zoning in 1951, the mansion had become an inn, first known as "The Beaches" and later as "The Sandpiper", which had guest units and a restaurant. "The Sandpiper" was destroyed by fire in 1976 or 1977, and all that remains on the lot are its stone foundation and a large underground septic system.

Shortly after purchasing the property, Wrightson investigated the cost of constructing a single family residence and apparently determined that such a residence was not financially feasible. The principal cost in Wrightson's calculations appears to have been the expense of building an elaborate sea wall, estimated at $150,000, to protect any building on the site from the force of the elements and the ocean. He then decided that the property would be better suited for a condominium consisting of eight units and began planning that project. Later, on the suggestion of area residents, Wrightson reduced the size of his proposed condominium project from eight units to four units.

On May 30, 1980, Wrightson applied for a variance from the town's zoning by-law to permit construction of a four-unit condominium in the single residence zone. ³ On August 12, 1980, the board, by a vote of four to one, granted the variance, subject to certain conditions not material here. In giving its approval, the board made the findings required by G.L. c. 40A, § 10, and stated specifically that Wrightson would suffer substantial hardship due to circumstances which especially affected his land but did not affect the zoning district in general. ⁴ Thereafter, the plaintiffs appealed the grant of the variance to the Superior Court. A trial de novo was conducted which lasted five days. The trial judge heard extensive lay and expert testimony, received numerous exhibits, and took two views of the locus (one by land and one by sea) and the residential district of which it is a part. After considering the evidence, the judge made findings of fact which were diametrically opposed to those made by the board. The judge found: (1) that the oceanfront area in which the locus is situated is substantially confined to single residences and includes a number of "substantial" houses near the ocean; (2) that there also exist in the district a small number of widely separated nonconforming uses established prior to 1951; (3) that the locus as a building site is not unique but shares the advantages and disadvantages of other oceanfront property in the approximately two-mile single residence district; (4) that with the exception of one seawall protecting a cesspool on the locus, there was no visible decomposition of any other seawall; (5) that "construction of a single family residence on the site will not be cheap, but obviously can be made less expensive by placing the construction as far back from the edge of the ocean as the locus will permit, viz., a distance of about ninety feet;" (6) that it would not be necessary to protect a single family residence so placed on the lot with an extravagant series of newly constructed or reconstructed seawalls; and (7) that the "remarkable septic system" presently on the locus could easily serve a single family residence. Based on the findings the judge concluded that the locus was not unique in the district, that literal enforcement of the terms of the by-law would not produce substantial hardship, and that the construction of a four-family condominium upon the site would "undermine the existing by-law upon which many owners obviously have relied in purchasing single family residences on the waterfront."

Wrightson argues that the board was warranted in granting him a use variance to build his condominium project, that the judge applied an incorrect legal standard in reviewing the board's decision, and that the judge's critical findings of fact lack support in the record.

1. Before coming to grips with the trial record, it is useful to restate some general principles governing review of decisions of local zoning boards granting variances.

On an 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 to grant a 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 which 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. ⁵ 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 without nullifying or substantially derogating from the intent or purpose of such ordinance or by-law." See Warren v. 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, 383 Mass. at 10, 416 N.E.2d 1382. Knott v. Zoning Bd. of Appeals of Natick, 12 Mass.App. 1002, ---, 429 N.E.2d 353 (1981). The trial 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. Much of the evidence at trial was directed to the questions whether the locus was unique and whether it was encumbered by special hardship sufficient to justify relief by way of a use variance. We shall likewise concentrate on these two elements of the test, doing so from the familiar perspective that the trial judge's findings of fact on the statutory elements must stand unless they are determined to be clearly erroneous. Mass.R.Civ.P. 52(a), 365 Mass. 816 (1974). Broderick v. Board of Appeal of Boston, 361 Mass. 472, 477, 478, 280 N.E.2d 670 (1972). Cavanaugh v. DiFlumera, 9 Mass.App. 396, 397, 401 N.E.2d 867 (1980).

There is a little over two miles of ocean frontage in the residence district in which the locus is situated. Ledge (hard rock), similar to that at the locus, comprises frontage of many houses on the waterfront. Most of the dwellings near the water incur similar exposure to the force of the elements and the ocean. Moreover, there is some other property in the district with topography generally like that of the locus. The only characteristic which really distinguishes Wrightson's land is that it extends further into the ocean than the other waterfront property. The fact that inland property in the zoning district is not precisely identical to the locus in topography or shape is not controlling, however, since "a condition need not affect all property in a district in order to be regarded as a condition generally affecting the district as a whole." Planning Bd. of Watertown v. Board of Appeals of Watertown, 5 Mass.App. 833, 834, 363 N.E.2d 293 (1977). See also Shacka v. Board of Appeals of Chelmsford, 341 Mass. 593, 595, 171 N.E.2d 167 (1961).

At Wrightson's urging we have examined the exhibits in the case to see if they contravene the judge's disposition of the uniqueness question. This evidence does not clearly contradict the judge's finding that the land is not unique. Nor does it plainly undermine the judge's...