Paulding v. Bruins

• Decision Date: 29 October 1984
• Citation: 470 N.E.2d 398,18 Mass.App.Ct. 707
• Parties: Peter R. PAULDING et al. 1 v. Charlotte Heavens BRUINS et al. 2
• Court: Appeals Court of Massachusetts

Page 398

470 N.E.2d 398

18 Mass.App.Ct. 707

Peter R. PAULDING et al. ¹ v. Charlotte Heavens BRUINS et al. ²

Appeals Court of Massachusetts,

Plymouth.

Argued Sept. 18, 1984.

Decided Oct. 29, 1984.

Edward T. Angley, Plymouth, for plaintiffs.

David Hern, Jr., Boston, for Charlotte Heavens Bruins et al.

Before PERRETTA, CUTTER and FINE, JJ.

FINE, Justice.

The Pauldings, whose lot is adjacent to the locus on the northwest side, appeal from a decision of the Superior Court upholding the grant by the Plymouth zoning board of appeals to Howard J. Heavens of a variance from the frontage and width requirements in the town's zoning by-law. ³ The lot for which the variance was granted is a "pork chop" lot. Somewhat larger than most of the surrounding developed lots to the east of the locus but only ninety feet wide, it has a fifteen-foot wide strip, four hundred feet in length, running from the street to the main portion of the lot. The bulk of the lot is well back from any street nearby. The frontage required by the town by-law on a public way is thirty feet, fifteen feet more than the lot provides. The width requirement is one hundred fifty feet. See the accompanying sketch. The lot was created in its present form in the 1920's, as far as appears prior to the adoption by the town of any zoning by-law.

Bruins contends on cross-appeal that the Superior Court was incorrect in ruling that the Pauldings, the only individuals objecting to the variance, have standing to appeal from the board's decision. Because, in our view, the findings of the board and the trial judge are adequate to justify the grant of the variance, we deal only briefly with the standing issue.

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 ... whether or not previously a party to the proceeding ... may appeal to the superior court department...." There is a rebuttable presumption that the Pauldings, as abutting property owners entitled to receive notice of the public hearing (G.L. c. 40A, § 11), were persons aggrieved. Marotta v. Board of Appeals of Revere, 336 Mass. 199, 204, 143 N.E.2d 270 (1957). The judge decided that the plaintiffs' fears of erosion, flooding, and damage to trees on their lot, should a driveway be built as planned, were not unreasonable. "[W]hether a party is 'aggrieved' is a matter of degree ... and the variety of circumstances which may arise seems to call for the exercise of discretion rather than the imposition of an inflexible rule." Rafferty v. Sancta Maria Hospital, 5 Mass.App. 624, 629, 367 N.E.2d 856 (1977). A trial judge's findings concerning whether a person is aggrieved should not be reversed unless they are clearly erroneous. Mass.R.Civ.P. 52(a), 365 Mass. 816 (1974). Waltham Motor Inn, Inc. v. LaCava, 3 Mass.App. 210, 217, 326 N.E.2d 348 (1975). Here, there was ample evidence in the record to support the judge's finding that the Pauldings, as abutters concerned about harm to their property, were aggrieved persons entitled to appeal. Compare Circle Lounge & Grille, Inc. v. Board of Appeal of Boston, 324 Mass. 427, 86 N.E.2d 920 (1949).

The Pauldings contend that the board exceeded its authority in granting the variance.

The first paragraph of G.L. c. 40A, § 10, as appearing in St.1975, c. 808, § 3, states in part that [18 Mass.App.Ct. 710] a board may grant a variance with respect to particular land only where it "specifically finds 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, a literal enforcement of the provisions of the ordinance or by-law would involve substantial hardship, financial or otherwise, to the petitioner" (emphasis added). The Pauldings rely exclusively on Warren v. Zoning Board of Appeals of Amherst, 383 Mass. 1, 416 N.E.2d 1382 (1981), in maintaining that the first part of this required finding, made by the board in conclusory terms, was not adequately supported by the facts. In Warren, the court noted that the only circumstance especially affecting the lot in question was its lack of adequate frontage. It stated, "If the Legislature intended the mere fact of a deficiency in the required frontage of a lot to be sufficient, without more, to satisfy this particular prerequisite for a variance, it is difficult to believe that they would not have said so in this statute. They did not do so, and we believe that they did not intend that result." (Emphasis added.) Id. at 11, 416 N.E.2d 1382.

The lot involved in the instant case has significant special characteristics beyond the lack of conformity with zoning requirements. The board noted in its findings that it has a "pork chop" shape. The assessor's map of the area, which was before the board, reveals that no other lot in the immediate neighborhood has a similar shape. In fact, that map reveals a shape that is so unusual that one would have to conclude that it also differed from most lots in the zoning district. In addition, the board stated that the size of the lot "exceeds that of most surrounding lots by a significant amount," and that the existing topography would accommodate a driveway from the public way to the main portion of the lot. The special circumstances as to the shape, when considered with the other characteristics of the lot which have been referred to, are sufficient in our view to support the board's required finding of special circumstances relating to the land but not affecting generally the zoning district in which it is located. Broderick v. Board of Appeal of Boston, 361 Mass. 472,...