Gordon v. Zoning Board of Appeals of Lee

Cutter, J.

(dissenting). I assume (see part 2 of the majority

opinion) that the trial judge reasonably could find (but was not required to do so) that the now remaining plaintiff, Mrs. Gordon, had standing. I disagree, however, with the determination in part 4 of the opinion that the judge could not decide that the town zoning board of appeals acted within its authority in granting the variance, even under what in Guiragossian v. Board of Appeals of Watertown, 21 Mass. App. Ct. 111, 118 (1985), are described as “new requirements for variances” imposed by the present G. L. c. 40A, § 10, as appearing in St. 1975, c. 808, § 3 (and as later amended by St. 1977, c. 829, § 4B).

The majority’s conclusion that a variance must be denied rests essentially upon the circumstances that, in 1976, the Salinettis (with knowledge of the zoning requirements) sold portions of their frontage on Fairview Street without retaining the zoning minimum of 125 feet of frontage on that street to provide access to the more than five acres of back land of the locus. That back land then could not, and now cannot, be developed for more than one dwelling because of its physical peculiarities. These include a significant slope from north to south, a serious water condition, lack of all access from the south (because of the Massachusetts Turnpike), and the prohibitive cost of constructing a town approved street along the *353 northern part of the Salinettis’ property. 1 Salinetti, faced with these considerations, decided to sell what front lots he could dispose of then and to treat the back land as essentially only a wood lot. By the sale to Brisson, he made the large locus a nonconforming lot.

By 1983, the Salinettis had an apparently unexpected opportunity to sell the locus to Scheurer. This was dependent upon whether a variance from the frontage requirement could be obtained permitting access to the one part of the east portion of the locus on which a residence as a practical matter could be built.

The evidence justified the town board (presumably familiar with local conditions) and the trial judge in concluding that the peculiarities of the locus (and a rising demand in a largely rural community for the large single family house lots) made appropriate some relaxation of the zoning frontage requirement. They reasonably could decide that a variance was a practicable method of relieving the hardship to the Salinettis which existed in 1976, and essentially continued even after the sale to Brisson. The zoning by-law, as applied to the Salinettis’ 1976 holdings, appeared to make it necessary for the owner to choose between (a) having one house lot on the Fairview Street side of his land *354 (and no house on the back land), and (b) retaining approximately one vacant lot on Fairview Street to provide frontage to justify one house on the northern part of the eastern back land of the locus. The possible alternative procedure before the planning board (see note 1, supra) does not appear to have been considered in 1976 and, in any event, has not been shown to have been attempted.

The situation must frequently arise where the somewhat Procrustean inflexibility of certain rural zoning by-laws leads to the development first of the most appropriate land for residences while leaving the owner of essentially unusable and less accessible back land (distant from any laid out street) without financially practicable means of complying with zoning requirements to realize some of its value. 2 In the present case the sensible grant of a variance has not been shown to have caused significant harm to any abutter or to have detracted from the integrity of the residential zoning of the area. It avoids a continuing hardship to the Salinettis and permits the most economic use of the locus.

From the public standpoint the variance turns a partly cut-over wood lot of negligible value into an unusually large lot (more than ten times the applicable minimum lot size of 20,000 square feet) for only one substantial residence, a matter of local tax advantage and in no way inconsistent (except as to the frontage situation) with the basic zoning scheme. Indeed, the permissible removal of the remaining trees from the locus (as seemed a possibility at one time) in all probability might be a substantial harm to the zone. Mrs. Gordon is relying upon the circumstance that the Salinettis in 1976 did not keep 125 feet of frontage (in itself a matter of no intrinsic harm to her with only a right of way to Fairview Street) as a method of preserving privacy (for her thirty acres east of the locus) which she has enjoyed *355 since 1976 essentially because the Salinettis were not then in a financial position to pay for an access street.

I think that the unfavorable physical characteristics of the locus, and the circumstances leading to the grant of the variance, provided the required additional reasons for a variance to satisfy the statement in Warren v. Zoning Board of Appeals of Amherst, 383 Mass. 1, 13 (1981), that the “creation of a nonconforming parcel by ... a conveyance does not without more” (emphasis supplied) entitle the owner of the nonconforming parcel thus created to a variance. In this case there is a good deal “more” in the way of support for a variance than the circumstance that a nonconforming lot was created by the Salinettis. The emphasized words “without more” suggest that the principle in fact applied in the Warren case is not to be regarded as inflexible for all time merely because a present or former owner once possessed enough street frontage to satisfy the zoning by-law.

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The majority opinion (nn. 7 and 8) ingeniously suggests that the original sale in 1976 to Brisson constituted a subdivision and, therefore, should then have been subjected to the town planning board’s scrutiny under the Subdivision Control Law, especially G. L. c. 41, §§ 810, 81R, and 81W. The present record does not reveal what action was sought or taken under the Subdivision Control Law in 1976, or what planning board regulations were outstanding in 1976 and what are now in effect. The town zoning by-law in § 1 defines “Street, Road, Avenue, Terrace etc,” as “A public way, or a way qualifying under the Subdivision Control Law, giving access to a lot or lots” (emphasis supplied). The planning board in 1976 could have relaxed (under c. 41, § 81R) any regulation then in effect to make a simple driveway adequate for access to one single family house and garage on the Salinettis’ back land. The board could have imposed conditions such as forbidding all other houses on the back land, and requiring that the back land be kept as rural space without excessive tree harvesting. The present record suggests no reason why resort to the planning board may not still be had. The case, however, has been argued before us only on the issue of the validity of a variance on the facts shown in this record.

The procedure discussed in nn. 7 and 8 of the majority opinion, and 1, supra, once generally recognized and appropriately applied by planning boards, can avoid many instances of real hardship leading to applications for variance. It seems a reasonable method of affording economical means of access to otherwise unbuildable back land without resort to the variance process.