Zoning – Variance – Standing

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Where a Superior Court judge has denied the plaintiff abutters’ appeal of a variance grant allowing a defendant landowner to build two houses on his property, the denial decision must be vacated, as (1) the plaintiffs had standing to bring their appeal and (2) no lawful justification existed for the variance grant.

Analysis

“Whether characterized as a misapplication of the law, or as a ‘clearly erroneous’ finding of fact, the judge’s decision cannot stand. … The plaintiffs’ objections to the variance were based upon the incremental impact upon their property of two houses being built directly behind them, rather than one. They articulated concerns about increased noise, increased artificial light, and decreased backyard privacy. In addition, because of problems they had experienced with their own septic system, they expressed concerns about the environmental implications of two nearby septic systems instead of one.

“As confirmed by the testimony of the building inspector, the grounds for the plaintiffs’ objections related directly to the objectives of the density regulation at issue. Especially given the close quarters involved here, the plaintiffs’ concerns cannot reasonably be characterized as ill-founded or speculative. Accordingly, it was error for the judge to conclude that the plaintiffs lacked standing. …

“[In addition, t]here was no lawful justification for the grant of the variance. The board’s stated rationale was that the locus was the only instance in this subdivision of two contiguous, nonconforming lots; that a 40,000 square foot lot would be unusually large in the area; that [defendant Joseph] Gibbons had paid taxes on two lots; and that he would suffer financial hardship unless the locus could be developed with two houses. However, unless the owner’s hardship relates to soil conditions, shape, or topography of the land, a variance cannot lawfully be granted. … The size of a lot does not qualify as ‘shape of the land’ grounds for the grant of a variance. …

“The judgment upholding the board’s decision granting the variance is reversed, and judgment shall be entered in the Superior Court vacating the board’s decision granting the variance.”

The full text of this decision can be found on Lawyers Weekly’s website, malwdev.wpengine.com.

Bertrand, et al. v. Board of Appeals of Bourne, et al. (Lawyers Weekly No. 11-178-03) (2 pages) (Rescript) (Appeals Court) Case heard by Connon, J., in the Superior Court. Donald J. Bertrand for the plaintiffs; Matthew R. Tobin for defendant Joseph Gibbons; Robert S. Troy submitted a brief for the defendant Board of Appeals of Bourne (Docket No. 01-P-1477).