failure to make findings under the statutory criteria relating to conditions of soil, topography, or shape is fatal to the variance
How later courts described this case
- failure to make findings under the statutory criteria relating to conditions of soil, topography, or shape is fatal to the variance
Written by the judges who cited it.
The opinion
1. The trial judge correctly ruled that the defendant board of appeals did not comply with G. L. c. 40A, § 10, as most recently amended by St. 1977, c. 829, § 4B, because it failed to make a specific finding concerning the locus 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 . . . to the petitioner or appellant.” The board made no findings at all concerning soil conditions or topography. See Barnhart v. Board of Appeals of Scituate, 343 Mass. 455, 457 (1962). Its references to “shape” lead us to believe that it confused the “shape” of the lot with its “size,” which is a different attribute and a consideration which § 10 does not include. The lot was rectangular like all other lots in the area. In short, the failure to make the necessary finding as to shape is fatal. See Spaulding v. Board of Appeals of Leicester, 334 Mass. 688, 692 (1956). 2. Our affirmance of the judgment is without prejudice to the right of the appropriate parties to test the validity of the 1975 zoning by-law amendment pursuant to the remedy in G. L. c. 240, § 14A, and G. L. c. 185, § 1 (jVá), or under any other law which may permit such a test. See Devine v. Saugus, 5 Mass. App. Ct. 885, 885-886 (1977).
Judgment affirmed.