Wolfman v. Board of Appeals of Brookline

• Decision Date: 01 March 1983
• Citation: 444 N.E.2d 943,15 Mass.App.Ct. 112
• Parties: Bernard WOLFMAN et al. 1 v. BOARD OF APPEALS OF BROOKLINE et al. 2
• Court: Appeals Court of Massachusetts

Page 943

444 N.E.2d 943

15 Mass.App.Ct. 112

Bernard WOLFMAN et al. ¹ v. BOARD OF APPEALS OF BROOKLINE et al. ²

Appeals Court of Massachusetts,

Norfolk.

Argued Sept. 14, 1982.

Decided Jan. 13, 1983.

Further Appellate Review Denied March 1, 1983.

Joseph S. Murphy, Haverhill, for plaintiffs.

Sheldon M. Drucker, Boston (Marilyn D. Stempler and Steven B. Levine, Boston, with him), for Petros Palanjian & another.

Cathleen Cavell, Associate Town Counsel, Brookline, for Bd. of Appeals of Brookline, was present but did not argue.

Before GRANT, GREANEY and PERRETTA, JJ.

PERRETTA, Justice.

The defendant board granted the defendant developers various permits and variances which allow the developers to build a sixty-unit apartment building on a lot situated at the corner of Beacon and Borland Streets in Brookline. These units, if constructed, will be sold as condominiums having off-street parking facilities and certain amenities, such as balconies and a swimming pool. Pursuant to G.L. c. 40A, § 17, the plaintiffs appealed to the Superior Court, where the trial judge concluded that the board had not exceeded its authority in granting the permits and variances. The plaintiffs raise numerous issues on this appeal, but their primary contention is that the board and the trial judge were in error in concluding that a literal enforcement of the Brookline zoning by-law would involve a substantial hardship to the developers. We affirm the judgment.

The lot, consisting of approximately 41,889 square feet, is irregular in shape, similar to a reverse "L," and was described by the trial judge, who viewed the locus, as "an eyesore of a pit with overgrown vegetation in the midst of a thickly settled residential area on an MBTA line next to a medical building whose tenants and patients use the same as a parking lot with access from Borland Street down a steep incline." The grade of the pit is six feet below Beacon Street, thirteen feet below Borland Street, and twenty feet below an adjacent house to the rear of the lot.

The plot is the last undeveloped lot in the M-2.0 district, i.e., a district zoned for multi-family residences. The neighborhood to the back of the site is comprised of big, single-family houses on large lots. As proposed, the building contains about 89,325 square feet of floor area, sits fifteen feet back from the Beacon Street lot line, and is eight stories above grade level. The building is to be situated parallel to, and with the main entrance fronting on, Beacon Street.

1. The Variances.

A. Height of the Building.

Under § 5.31(c) of the Brookline zoning by-law, there must be a "buffer zone" between multiple-dwelling buildings in an M-2.0 district and single-family houses located close to such a district. The purpose of the "buffer zone" is to provide protection for the single-family houses from increased shadowing caused by high-rise buildings. A variance is required in the present instance because the back of the proposed building will intrude upon the "buffer zone" at two points, one by about 176 square feet and the other by about 4.32 square feet. ³

To meet the dimensional requirements necessary to avoid an invasion of the "buffer zone," and thus the need for a variance, the developers would have to reduce the height of the building nearest to the residential zone while increasing the height of the building at the Beacon Street side. That proposal, which adds height and weight to the building on the side adjoining the medical building, would involve a substantial increase in the foundation costs, claim the developers, because of the soil conditions, shape, and topography of the locus. The variance spares the developers this substantial expense. ⁴ In addition to those facts already recited, the trial judge found that the following circumstances give rise to a substantial hardship: (1) the locus "contains an irregular pattern of subsurface soil conditions and materials at varying levels of elevation and a relatively high water table"; (2) these soil conditions "show the locus to be unique as compared to other lots along Beacon Street"; (3) "[a]ny construction on this lot requires extra expenses, amounting to a premium cost, for bracing of the rear slope of the lot adjacent to the existing single-family residence ... and adjacent to the medical office building"; and (4) the developers would be required to spend amounts estimated from $250,000 to $500,000 in premium costs for construction of a foundation on this lot due to the uncertain soil conditions and the need for protective measures for the adjacent structures, which are peculiar to this lot and not generally found in the immediate vicinity.

The plaintiffs contend that two prerequisites which are essential to the granting of a variance and which were found by the trial judge to exist have not in fact been established. First, they claim that there is no evidence to show that the soil conditions affecting the locus did not affect generally the zoning district in which the locus is situated. The record, however, directly contradicts that claim. The results of the boring tests conducted at the site and the testimony of a soil expert, as well as that of one of the developers, Palanjian, who had constructed four buildings within a two mile radius of the locus, fully justify the trial judge's findings that the soil conditions were peculiar to the locus. Even assuming that the soil expert would have testified on cross-examination in a manner consistent with the plaintiffs' offer of proof--that "it is a glacial area and that the deposits vary from site to site but ... there are other similar deposits in the area"--such testimony would not have compelled the conclusion that the soil conditions of the locus also "affect[ed] generally the zoning district in which it is located." See Shacka v. Board of Appeals of Chelmsford, 341 Mass. 593, 595, 171 N.E.2d 167 (1961). Cf. Planning Bd. of Watertown v. Board of Appeals of Watertown, 5 Mass.App. 833, 834, 363 N.E.2d 293 (1977). Moreover, the finding of substantial hardship is not based on the soil conditions alone. The trial judge took all the circumstances of the locus, the soil conditions, the reverse "L" shape, the grade and the adjacent buildings, into account, and we cannot say that he was in error in finding that these circumstances did not affect the zoning district generally. See Dion v. Board of Appeals of Waltham, 344 Mass. 547, 551-552, 183 N.E.2d 479 (1962); Broderick v. Board of Appeal of Boston, 361 Mass. 472, 477-478, 280 N.E.2d 670 (1972); Josephs v. Board of Appeals of Brookline, 362 Mass. 290, 293, 285 N.E.2d 436 (1972). Compare Bicknell Realty Co. v. Board of Appeal of Boston, 330 Mass. 676, 680, 116 N.E.2d 570 (1953); Shacka v. Board of Appeals of Chelmsford, 341 Mass. at 595, 171 N.E.2d 167; Cass v. Board of Appeal of Fall River, 2 Mass.App. 555, 559, 317 N.E.2d 77 (1974).

The plaintiffs' second contention, that there is no evidence showing that the peculiarities of the locus are the cause of a financial hardship, also fails on the record. The soil expert and Palanjian testified that the premium costs of construction, estimated on the low side to be in the range of $250,000 to $500,000, were due primarily to: (1) the grade changes of the land; (2) foundation requirements for constructing a heavy building on a clay and sand subsurface; and (3) the need for bracing to give lateral support to the medical building, the rear slope of the locus, and utilities on Beacon and Borland Streets. These expenses are not personal to the developers but would be experienced by anyone attempting to make a reasonable and permitted use of the locus. See Sherman v. Board of Appeals of Worcester, 354 Mass. 133, 135, 235 N.E.2d 800 (1968); Johnson v. Board of Appeals of Wareham, 360 Mass. 872, 873, 277 N.E.2d 695 (1972). Compare Abbott v. Appleton Nursing Home, Inc., 355 Mass. 217, 220-221, 243 N.E.2d 912 (1969). See generally 3 Anderson, American Law of Zoning § 18.28 (2d ed. 1977). ⁵

B. Front Yard Set-Back.

Under § 5.00 of the zoning by-law, as it applies to this building, the minimum depth of a front yard in an M-2.0 district is fifteen feet, which, as required by § 5.50, "shall be provided between the front lot line ... and the nearest point of any building ... except as may be permitted hereafter." Exceptions which may be permitted under § 5.51 are, among others, "[g]round story bays and porches ... [which] may project into any front yard three and one-half feet" (emphasis supplied).

As proposed, the building is set fifteen feet back from the Beacon Street lot line, and balconies will extend three and one-half feet from the building over the yard. The building commissioner had advised the developers that a variance was required. Upon their application for a variance, the board granted the developers a special permit under § 5.43 of the zoning by-law. That section permits the board to reduce the front yard setback requirements but not below the minimum depth of fifteen feet in M districts. ⁶

The plaintiffs contended before the trial judge that if the balconies are to be constructed, a variance rather than a special permit is required, as the projections will reduce the front yard to a depth below fifteen feet in violation of § 5.43 of the zoning by-law. The trial judge found, however, that the balconies fell within the exceptions permitted under § 5.51. The plaintiffs' contentions before us are that the balconies cannot be permitted under either § 5.43, for the reason previously recited, or § 5.51, as a balcony cannot be viewed as a porch extending into a front yard. Thus, they argue, while a variance is necessary, it is unattainable because the developers failed to show any substantial hardship justifying a variance for the construction of the balconies. For that assertion, the plaintiffs seek support from the uncontradicted testimony of the soil expert to the effect that the already excessive...