MARIO A. PEREZ & another vs. BOARD OF APPEALS OF NORWOOD & another.

MARIO A. PEREZ & another [Note 1] vs. BOARD OF APPEALS OF NORWOOD & another. [Note 2]

54 Mass. App. Ct. 139

February 8, 2001 - March 7, 2002

Norfolk County

Present: GREENBERG, BECK, & RAPOZA, JJ.

Zoning, Variance, Frontage. Subdivision Control, Zoning requirements, Frontage on public way.

A town's board of appeals exceeded its authority with respect to a variance granted a developer as to a particular lot in a proposed subdivision, where insufficient frontage was not a special circumstance creating the need for the variance, where the developer's hardship was self-inflicted, and where the landowner's desire to maximize his profit did not constitute substantial" hardship under G. L. c. 40A, s. 10. [142-144]

CIVIL ACTION commenced in the Superior Court Department on January 6, 1997.

The case was heard by Judith Fabricant, J.

Brian J. Rogal for the plaintiffs.

Louis J. Caccavaro, Jr., for Richard H. Vara.

GREENBERG, J. The question whether variances were properly granted by the board of appeals of Norwood (board), allowing the defendant, Richard H. Vara, to proceed with a proposed residential subdivision on three acres of land, was the main issue argued in this appeal by the plaintiffs, Mario A. and Suzanne M. Perez. A Superior Court judge decided this case in favor of Vara and the board. We reverse. [Note 3]

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The question arises in this manner. Three separate parcels comprise the land that Vara proposes to develop. The development would contain seven new lots and abut an earlier subdivision named Varwood Circle that Vara's father laid out in the 1950's. Vara has since come to own, and now wishes to develop, certain land retained by his father, fronting on Varwood Circle, as well as two other parcels formerly owned by Eva Procopio. Both subdivisions are depicted on a sketch that we have included as an Appendix to our opinion (the land retained by Vara's father is not clearly shown). [Note 4] The remaining two parcels that would comprise Vara's subdivision are depicted as "Old Procopio Lot 1" and "Old Procopio Lot 2." The combined area of land now held by Vara is denoted as the "Vara land."

As shown on the sketch, the Vara land contains a number of deficiencies relative to the current Norwood zoning by-law. The house and detached garage were built prior to the enactment of the current by-law. These structures would remain standing on lot 6 under Vara's subdivision plan, but they encroach into the required front and side yards. Moreover, the Vara land has frontage on Varwood Circle as well as on Rock Street, but the record is unclear on the amount of frontage on Varwood Circle. In addition, the Vara land lacks sufficient frontage on Rock Street under the current zoning by-law.

Prior to the transfer of land from Procopio to Vara, Old Procopio Lots 1 and 2 were held in common ownership with the adjacent parcel at 170 Rock Street, which is also shown on the sketch. Under the existing zoning by-law, 170 Rock Street is an undersize lot that lacks adequate frontage, and the house on that parcel, where Eva Procopio still lives, lacks the requisite

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front and side yards. In selling the rest of her land to Vara, Procopio severed 170 Rock Street from adjacent land that, when combined with 170 Rock Street, afforded compliance in frontage and area under the current Norwood zoning by-law. [Note 5]

The sketch depicts the lots in Vara's proposed subdivision. As a result of Vara's plan, a new, larger 170 Rock Street (shown on the sketch with a dotted back yard line and labeled as lot 7) would contain the necessary 10,000 square-foot minimum area for lots in Norwood. Lot 6 would also contain 10,000 square feet, occupy the portion of the Vara land that fronts on Rock Street, and assume the street address assigned to the house and garage situated on it, 62 Oliver Street. Two proposed lots (lots 1 and 2) would be located, respectively, behind 62 Oliver Street and 170 Rock Street. To provide access to these lots and three others shown on the sketch (lots 3, 4, and 5), Vara proposes to construct a new cul-de-sac perpendicular to Varwood Circle, which would run from Varwood Circle's southeast side and loop around the plaintiffs' property at 14 Varwood Circle.

Vara, the board, and the trial judge suggest that a variance is necessary in this case to avoid the application of § 4110 of the Norwood zoning by-law to 62 Oliver Street. That section of the by-law states, "The erection, extension, alteration, or moving of a structure or the creation of a lot or change in its size or shape (except through a public taking) must meet the requirements set

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forth in Section 4200, Dimensional Regulations Schedules . . . ."

The trial judge based her conclusion on findings that all requirements for a variance had been met. Those requirements, embodied in G. L. c. 40A, § 10, as inserted by St. 1975, c. 808, § 3, are as follows:

"[1] that owing to circumstances relating to the soil conditions, shape, or topography of such land or structures and especially affecting such land or structures but not affecting generally the zoning district in which it is located, [2] 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 [3] 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."

The judge correctly noted that these requirements are conjunctive and that variances may properly be granted only where all three requirements are met. Kirkwood v. Board of Appeals of Rockport, 17 Mass. App. Ct. 423 , 428 (1984). Correspondingly, she found that (1) "[t]he size and configuration of the parcels in issue are substantially distinct from those in the surrounding area"; (2) "[l]iteral enforcement of the by-law would compel the land owner to take wasteful and costly action [razing the buildings at 62 Oliver Street], with no benefit to anyone . . . [and] would be a hardship"; and (3) "[t]he grant of the variance eliminates this hardship without any detriment to the public good, and without any derogation from the intent or purpose of the by-law." Accordingly, the judge affirmed the board's grant of relief. [Note 6]

On our review of the record, we find it insufficient to sustain the trial judge's conclusions that the first and second requirements for the allowance of a variance have been met. Although Vara, the board, and the judge approach this case as if the application

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of § 4110 of the by-law precipitates the need for variances for lot 6, we are not at all certain that this analysis is correct. To the extent that (as Vara appears to argue) the new subdivision plan creates no new nonconformities, but see note 5, supra, the house and garage situated at 62 Oliver Street might enjoy the protection of G. L. c. 40A, § 6, despite the more stringent requirements of § 4110 of the by-law. See McLaughlin v. Brockton, 32 Mass. App. Ct. 930 , 932 (1992). Indeed, the trial judge may have endorsed this possibility in a cryptic fashion, see note 5, supra, without citation to § 4113 of the Norwood zoning by-law, which states, "In certain other cases current regulations are made inapplicable by provisions of Section 6 of Ch.40A, G.L."

Two problems inescapably appear alongside this possibility, however viable it may be on the record. First, the fact that lot 6 has insufficient frontage on Rock Street could not stand as the only ground supporting the variances granted by the board. Warren v. Zoning Bd. of Appeals of Amherst, 383 Mass. 1 , 11 (1981). Tsagronis v. Board of Appeals of Wareham, 415 Mass. 329 , 332-333 (1993) (explaining why insufficient frontage, without more, cannot be special circumstance creating need for variance). Second, Vara's choice to separate lot 6 from available, conforming frontage on his proposed new cul-de-sac means that his hardship is self-inflicted, another fact which cannot support the relief granted. Whelan v. Zoning Bd. of Appeals of Norfolk, 430 Mass. 1009 , 1009-1010 (2000). DiCicco v. Berwick, 27 Mass. App. Ct. 312 , 314-315 (1989). Karet v. Zoning Bd. of Appeals of Worcester, 27 Mass. App. Ct. 439 , 440-441 (1989). Cf. Valcourt v. Zoning Bd. of Appeals of Swansea, 48 Mass. App. Ct. 124 , 130 (1999).

With these problems clear, it appears, as well, that the impetus for the variances here is Vara's desire to create six new lots, rather than five, in his proposed subdivision. [Note 7] Thus, Vara might solve these problems by combining lots 1 and 6 to form a large parcel with sufficient frontage on his new cul-de-sac. Or Vara might attempt to convey 62 Oliver Street and the buildings situated on it back to Procopio -- so that it and 170 Rock Street

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could again rely on each other for compliance -- and he could use the remainder of his land to construct a new cul-de-sac and subdivision (with only five lots). The record is also unclear whether Vara could take advantage of his frontage on Varwood Circle for compliance, without constructing a subdivision. [Note 8] Vara's desire to maximize his profit, however, does not constitute "substantial" hardship under G. L. c. 40A, § 10. Bruzzese v. Board of Appeals of Hingham, 343 Mass. 421 , 424 (1962). Warren v. Zoning Bd. of Appeals of Amherst, 383 Mass. at 12. Guiragossian v. Board of Appeals of Watertown, 21 Mass. App. Ct. 111 , 118 (1985). See Arrigo v. Planning Bd. of Franklin, 12 Mass. App. Ct. 802 , 804 (1981); Karet v. Zoning Bd. of Appeals of Worcester, 27 Mass. App. Ct. at 441. On this record, given the plan before us, we cannot sustain the variances granted for lot 6 as shown on the sketch. [Note 9]

The amended judgment as to 62 Oliver Street is reversed, and a new judgment shall enter that annuls the decision of the board as in excess of its authority with respect to the variances granted as to that lot. As no arguments were addressed to the other variances, see note 6, supra, the amended judgment is otherwise affirmed.

So ordered.

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APPENDIX.

FOOTNOTES

[Note 1] Suzanne M. Perez.

[Note 2] Richard H. Vara.

[Note 3] Although Vara requested (and did not obtain) a ruling from the trial judge that the plaintiffs lacked standing, he does not press the question on appeal. Standing is, nonetheless, a jurisdictional issue. Marotta v. Board of Appeals of Revere, 336 Mass. 199 , 202-203 (1957). Cohen v. Zoning Bd. of Appeals of Plymouth, 35 Mass. App. Ct. 619 , 620 (1993). On our review of the record, we are satisfied that the plaintiffs face direct impact to their property from the variances granted by the board, in the form of increased traffic passing by their front and side lot lines on a new subdivision road, as well as a changed relationship to the surrounding land. See Bedford v. Trustees of Boston University, 25 Mass. App. Ct. 372 , 377-378 (1988). We proceed on the premise that the plaintiffs have standing to maintain this action.

[Note 4] This sketch was not produced by the parties or used in the proceedings below. However, because of certain ambiguities in the existing plans (not the least of which is the location of Vara's original parcel), we have commissioned from the engineering department of the Land Court the sketch as an aid to our decision. The sketch is included only for purposes of analysis and is not intended to be complete and accurate as to the nature of Vara's plans.

[Note 5] As far as appears on the record, at least some of the current nonconformities result from this severance of land, leaving both Vara and Procopio with noncompliant parcels. A settled principle in the zoning context applies here: "A landowner will not be permitted to create a dimensional nonconformity if he could have used his adjoining land to avoid or diminish the nonconformity." Whelan v. Zoning Bd. of Appeals of Norfolk, 430 Mass. 1009 , 1009-1010 (2000), quoting from Planning Bd. of Norwell v. Serena, 406 Mass. 1008 , 1009 (1990). Seltzer v. Board of Appeals of Orleans, 24 Mass. App. Ct. 521 , 522 (1987). Cf. Preston v. Board of Appeals of Hull, 51 Mass. App. Ct. 236 , 238-244 (2001). Prior to the severance of 170 Rock Street from Old Procopio Lot 1, the combined parcel contained compliant frontage on Rock Street. In addition, the structures at 62 Oliver Street and 170 Rock Street, then situated on land in common ownership, did not violate the side yard requirement in their orientation to each other. In adopting Vara's characterization of some of these deficiencies as valid preexisting conditions, the trial judge appears not to have considered the possibility that the frontage and side yard nonconformities arose from an improper severance subsequent to the adoption of the zoning by-law.

[Note 6] The trial judge also concluded that the changes to the lot lines of 170 Rock Street were governed by an exception to § 4110 of the by-law, which states, "Lot line changes to nonconforming lots are allowed provided that they create neither additional lots nor increase in nonconformity." No argument on appeal is addressed to any variance granted with respect to 170 Rock Street.

[Note 7] The new 170 Rock Street constitutes the seventh lot in Vara's subdivision plan, labeled and discussed here as lot 7.

[Note 8] In addition to the lack of clarity on the amount of frontage that Vara currently holds on Varwood Circle, the record does not disclose whether frontage must be contiguous to count toward the requirements in the current Norwood zoning by-law.

[Note 9] For the reasons stated, we also disagree with Vara's contention that this appeal is frivolous under Mass.R.A.P. 25, as amended, 378 Mass. 925 (1979), and G. L. c. 231, § 6F.