Opinion
No. 00-845
December 30, 2002
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER FOR JUDGMENT
This zoning appeal was tried before me, jury waived, on December 16-17, 2002. Having considered the evidence presented, along with my observations of the site during a view; certain facts that were stipulated by counsel before trial; and the arguments of counsel, I find and conclude as follows.
FINDINGS OF FACT
1. The defendants, Paul M. Walsh (hereinafter "Walsh") and his parents, Paul F. and Beverly Walsh, jointly own the property known as 27 Howard Street, Braintree. The property, as it was configured before any of the events that led to this appeal, consisted of some 44,067 square feet of land, in a deep, narrow rectangle, with approximately 106 feet of frontage on Howard Street. The property slopes in a diagonal direction, with the street end higher than the back, and the right side, as one looks from the street, generally higher than the left, although toward the back of the property the contour changes somewhat. On inspection at the view, the slope feels quite gentle from side to side, especially nearer to the street, so that most of the land is nearly level from side to side. The slope from front to back is more noticeable but still fairly gentle for about the front two-thirds of the property; walking from the street to that area presents no difficulty. About two-thirds of the way back from the street there is a steep slope going backward, especially on the left side, with a more gentle slope going backward on the right side. Behind that area the land levels out again to the end of the property, where the property abuts a lot that fronts on Shaw Street.
2. One single family house sits on the Walsh property. The house dates to the late nineteenth century, and is located in the front right corner of the property, as one looks from Howard Street, at a slight angle to the street. The nearness of the house to the front property line results in part from a taking of land by Norfolk County for widening of Howard Street, pursuant to a 1951 plan. As it existed prior to August of 2002, the house was 11.8 feet from the front property line at its closest point, which was the corner of the porch.
A copy of the plan is in evidence as Exhibit 10. The exhibit does not indicate — at least to this untrained viewer — how much of what is now the Walsh property was taken.
3. The Walshes bought the property in 1990. They selected the property in part because of their understanding that its size and configuration was such as to permit the construction of a second house on the rear part of the property; their plan was that the younger Walsh would continue to live in the existing house, and his parents would live in a new house to be constructed for them at the back of the property.
4. Next to the Walsh property, to its left as one looks from the street, is 41 Howard Street. That lot is much smaller, ending at a point about a third of the way into the Walsh lot. Behind it, abutting the left side of the Walsh lot, is the Bonfiglioli property, as will be further described.
5. The plaintiff, Barbara A. Bonfiglioli, owns the property known as 53 Howard Street. She occupies that property with her husband, Stephen Bonfiglioli. The Bonfiglioli lot consists of a large triangle located behind four smaller lots known as 41, 47, 59, and 61Howard Street, with a narrow strip of land running between 47 and 59 Howard Street. The Bonfiglioli property has 45 feet of frontage on Howard Street, at the end of that narrow strip; a driveway runs from the street at that location to the house, which sits behind 41 and 47 Howard Street. The other part of the Bonfiglioli property, behind 59 and 61 Howard Street, is undeveloped wetlands. One side of the triangle abuts the side of the Walsh property, at the left side of the Walsh property as one looks from the street. The Bonfiglioli property contains a single house and attached garage, situated such that the back of the house and garage face the side of the Walsh property.
6. The Bonfiglioli lot was created pursuant to a variance granted in 1976 for the forty-five foot street frontage. In 1989, the Braintree Conservation Commission issued an order of conditions authorizing construction of the house; its jurisdiction apparently arose from the existence of the wetlands on the lot. Barbara Bonfiglioli purchased the property in May of 1999.
7. Barbara Bonfiglioli's predecessor in title graded a portion of the lot so as create a level area for construction of the house and yard. That necessitated a retaining wall, which was built near the lot lines with 41 and 47 Howard Street and near part of the lot line with the Walsh property. The result is that a person looking out a back window of the Bonfiglioli's house would see a high wall to the right, at the lot line with 41 Howard Street, and to the back, at the lot line with the Walsh property. From that position the existing Walsh house would not be visible because of the height of the wall and the distance across the Walsh property to the location of the house. The houses at 41 and 47 Howard Street are considerably closer. From a position in the Bonfiglioli back yard, the existing Walsh house is not visible, but the houses at 41 and 47 Howard Street are. A high stockade fence runs along the property line behind the houses at 41 and 47 Howard Street, and a post and beam fence runs along the property line between the Bonfiglioli and the Walsh properties. Thick brush, trees, and tree stumps also obscure the view toward the Walsh property.
8. The Bonfigliolis have arranged a number of areas on their land for outdoor recreational use. Immediately behind their house and garage is an area arranged as a yard, with play equipment for their grandchildren. This area, as already described, is substantially lower than the abutting parts of all neighboring lots, and has high retaining walls at the side and back, with the house to the front. Next to this area (to the left from a position with one's back to the house, straight back if one were walking from the street) is an area with benches, a brick wall, and a stone walkway. At this location, the neighboring Walsh property slopes downward, and the retaining wall tapers off. Also at this location, the Bonfigliolis currently experience a drainage problem; water comes down the hill from the Walsh property, through the retaining wall, and pools on the grass and stone walkway, but does not affect the house or the play area behind it. Further in the same direction (away from the street, and further beyond the house), is a paved area with a basketball hoop. At this location, the land is essentially level with the Walsh property. From this area, the existing Walsh house is visible but distant. Also visible but distant are the houses at 41 and 47 Howard Street, and houses fronting on Shaw Street. The only house that is near this location is the one known as 390 Shaw Street; that house is near the back of a lot located behind 392 Shaw Street.
From the assessor's map, in evidence as Exhibit 6, it appears that 390 and 392 Shaw Street result from a subdivision similar to the one proposed by the Walshes; one lot is behind the other, with a narrow strip running to the street.
9. The immediately surrounding neighborhood consists primarily of relatively modest single family homes, most on lots much smaller than those of both parties. Within close proximity are a number of commercial facilities, including a shopping mall, a large apartment complex, and an automobile dealership. The Quincy Shipyard is nearby, and is visible from the higher Walsh lot and other higher areas in the neighborhood, but not from the lower elevation of the Bonfiglioli lot.
10. Both parties' properties are zoned as Residential B. Requirements of the Braintree Zoning By-Law for lots in that zone include lot size of 15,000 square feet, lot width of 100 feet, frontage of 50 feet, front setback of 20 feet, and side setback of 10 feet.
11. In the fall of 1999, a surveyor engaged by the Walshes prepared a plan for subdivision of their property into two lots. The plan, dated November 9, 1999, in evidence as part of Exhibit 2, provided for a sixty-foot wide rectangular area including the existing house to be designated as lot one, with 15,413 square feet, sixty-five feet of street frontage, and running from the street to a location about halfway to the back of the property. Lot two would include the entire width of the property at the back, and a forty-foot wide strip alongside lot one, with forty feet of street frontage. For illustrative purposes, the plan showed a 50 foot by 60 foot "building area," located twelve feet from the lot line with the Bonfiglioli property. The location of the "building area," as shown on the plan, is at the location on the Walsh property where the land slopes steeply, and is approximately adjacent to the location of the basketball area on the Bonfiglioli property. The plan also showed the existing driveway and parking or turnaround area, which would be mostly on lot two. As it presently exists, the driveway is located near and approximately parallel to the existing house, with a parking or turnaround area to its left, near the lot line with 41 Howard Street.
12. The Walshes' intention was and remains to build the second house on the area shown on the plan as the "building area," but to build a smaller house than would fit on that area. They have selected a Cape Cod style design, with a footprint of 42' by 28', with an attached sun room at the back of 12' by 15'. They plan to place the house in the front right corner of the building area, as one looks from the street, with the sun room placed on the right side of the back. The house as so situated would be approximately seventy feet from the Bonfiglioli house at its nearest point. They plan to build the house using the natural contour of the land, so that the entrance to the first floor at the front of the house would be at ground level, and the basement would be at ground level at the back, with a basement door that would exit directly to ground level. The Walshes plan to extend the existing driveway straight back to the new house, so that the two houses will share the driveway at the street end, and the entire length of the driveway will run adjacent to the property line between lots one and two, and as far as possible from the property line with the Bonfiglioli lot. They plan the driveway to be approximately fifteen feet wide for its primary length, widening to about twenty-four feet immediately in front of the new house, so as to accommodate two parked cars. At its widest point, the driveway would be twelve feet from the lot line with the Bonofiglioli property; for most of its length the driveway would be twenty-one feet from the lot line. They plan a turnaround area extending from the driveway into lot one near the back of lot one, well behind the existing Walsh house. They also plan a nine inch curb along the left side of the entire driveway, with a six foot stockade fence atop or next to the curb, and a row of arborvitae along side the fence and the house.
13. The two lots as drawn on the plan would deviate from the requirements of the zoning by-law in two respects: lot one would have less than the required 100 foot width, and lot two would have less than the required 50 feet of street frontage. Accordingly, the Walshes applied to the Zoning Board of Appeals for variances from these requirements, submitting the plan in support of their application. After a public hearing, the board granted the variances in a decision dated February 11, 2000, making the following findings:
Petitioner's lot is irregularly shaped, being long and narrow, there exists a slope on a portion of the lot and the existing dwelling thereon is located obliquely to the boundary lines. The residential dwelling is pre-existing and nonconforming due to a deficiency in the front yard setback. The proposed division of this lot into Lot 1 and Lot 2 will create a lot width nonconformity in Lot 1 and a frontage nonconformity on Lot 2. However, neither of these nonconformities will be substantially more detrimental than the existing nonconforming structure to the neighborhood. The Board finds that owing to the aforementioned site specific irregular shape of the lot, the slope thereon and the location and shape of the structure on Lot 1, a literal enforcement of the dimensional regulations of the ByLaw would involve substantial hardship to Petitioners, financial or otherwise and that these hardships do not generally affect the zoning district in which Petitioners property is located. We find 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 the ByLaw. It is our opinion that the public welfare and convenience will be substantially served and the status of the neighborhood will be improved.
No one appealed from that decision within the statutory time limit, and the Town Clerk so certified on March 3, 2000.
The plaintiff contends that she did not receive proper notice of the Board's hearing on that application. The Board's decision recites that the hearing was held "[p]ursuant to notice duly published in the Braintree Forum and duly posted within Town Hall, and by written notice
. . . mailed to all abutters deemed by the Board to be affected thereby." Evidence at trial indicated that Walsh had personally told Stephen Bonfiglioli of the plan in October of 1999, and that notice was sent to owners of record as of the previous January, at the address of each property. Since Barbara Bonfiglioli had purchased her property in May of 1999, notice would have gone to the property address in the name of the previous owner. She makes no claim of lack of notice of the hearing on the second request, which is the subject of this appeal.
14. The Walshes then approached the Braintree Planning Board, requesting an endorsement of "Approval Not Required" ("ANR"). The planning director informed Walsh that the endorsement could not be granted under the Planning Board's rules because of the non-conforming frontage on Lot 2, despite the variance; the variance satisfied zoning requirements, but the Planning Board would nevertheless subject the plan to full subdivision review. The Planning Director advised that elimination of the frontage non-conformity would render the plan subject to ANR endorsement.
15. The Walshes, apparently deeming subdivision review the more burdensome course, made a second application to the Zoning Board of Appeals, based on a revised plan dated March 16, 2000. This plan reallocated a triangular sliver of land from Lot one to Lot two, at the front of the property; the result was that both lots would have more than fifty feet of frontage, but that the angled part of the lot line would be approximately eight feet from the existing house at its nearest point, the corner of the porch. The application, as described by the Board, was "to modify the Lot 2 frontage . . . and to approve such relief relating to Lots 1 and 2 as necessary to modify Lot 2 frontage." After a second public hearing, the Board approved the application in a decision dated May 9, 2000, making the following findings:
Petitioner's original single lot is irregularly shaped, being long and narrow, there exists a slope on a portion of the lot and the existing dwelling thereon is located obliquely to the boundary lines. The residential dwelling is pre-existing and nonconforming due to a deficiency in the front yard setback. The prior relief granted by this Board allowed a division of this lot into Lot 1 and Lot 2 which created a lot width nonconformity on Lot 1 and a frontage nonconformity on Lot 2. A modification of the prior decision by allowing an increase in the frontage of Lot 2 from 40.02' to 50' in compliance with the ByLaw would maintain the lot width nonconformity on Lot 1and would create a sideyard setback deficiency and intensify the front yard setback deficiency of the existing dwelling on Lot 1. However, we find that non[e] of these nonconformities will be substantially more detrimental than the existing nonconforming structure to the neighborhood. We further find that pursuant to the provisions of M.G.L. Ch. 40A, Sec. 14, we have the requisite authority to modify our prior decision as requested.
The Board further ruled that its "prior decision, in all other respects, continues in full force and effect." On May 26, 2000, Barbara Bonfiglioli filed this action for review of the May 9, 2000, decision.
16. In August of 2002, while this case was awaiting trial, Walsh removed the corner of the porch of the existing house and rebuilt it at an angle; as a result, the house is now 12.3 feet from the street at its closest point, 11.8 feet from the angled part of the lot line at its closest point as shown on the revised plan dated March 16, 2000, and 11.6 feet from the straight part of the lot line at its closest point as shown on Exhibits 12 and 13.
17. The modification approved by the Board in its May 9, 2000, decision, considered in and of itself, has no effect on Barbara Bonofiglioli. The subdivision of the Walsh lot, and construction of a second house on the Walsh property, would affect Barbara Bonfiglioli, as follows.
18. A house constructed at the proposed location will be visible from part of the Bonfiglioli property, particularly the area where benches are located and the basketball area, and probably also from some upstairs windows of the Bonfiglioli house. I do not credit the testimony that such a house will appear to tower over the Bonfiglioli property; that characterization is not consistent with the contours of the land as observed during the view. Nevertheless, the proposed house will tend to increase the sense of density, and reduce the sense of privacy and isolation, that presently exists in those areas of the Bonfiglioli lot. The fence and shrubbery that the Walshes intend to install would tend to mitigate this effect.
19. A paved driveway leading from the street to the proposed house, if constructed according to the existing contour of the land, or if constructed so as to be flat, would tend to exacerbate the existing drainage problem on the Bonfiglioli land by covering some permeable land with impermeable material, so as to concentrate runoff. The Walshes have engaged an engineer to devise a plan to address this concern. The plan devised by the engineer is that the driveway will be graded so as to tilt slightly toward lot one. A swale will be constructed along the line between lots one and two, and then around the new house, to its right side as one looks from the street, and then around its back, leading to where the land naturally slopes down toward the back of the lot, and then toward the back of the Bonfiglioli property. The swale will channel water from the entire Walsh property to its back end, and then into the back end of the Bonfiglioli property, where it will flow naturally into the wetland area. If constructed according to this plan, the house and driveway would not only avoid any exacerbation of the existing drainage problem, but actually improve the existing drainage situation, reducing by ninety percent the amount of water that presently flows from the Walsh property to the non-wetlands part of the Bonfiglioli property.
20. Barbara Bonfiglioli has expressed concern that the construction of the proposed house and driveway will create a safety hazard from vehicles traveling along the driveway; she fears that in winter weather such vehicles may miss the edge of the driveway and fall down the embankment toward her yard. This fear is based on an assumption that the driveway will run immediately along the property line, that it will follow the existing grade of the land, which is angled slightly toward her property, and that it will have no curb or other obstruction to guide vehicles. I find this fear completely without foundation in the facts. I credit Walsh's expressed intention as to where and how he intends to build the driveway, and further note that, even if he were to abandon some of the mitigating aspects of plan, for reasons of expense or otherwise, no advantage to the Walshes would arise from building the driveway immediately along the property line, where it would serve neither house as well as it would if built in the planned location. Further, even if the driveway were to be built in the manner Barbara Bonfiglioli assumes, the risk that a stray vehicle would fall into her yard, getting past trees, stumps, shrubs, and the existing fence, is extremely remote.
21. Barbara Bonfiglioli has expressed concern that construction of the second house on the Walsh property will impair the value of her property. In support of this concern, she offered the testimony of real estate broker Norman Tuttle, who is a longtime friend and customer of her husband, and who had visited the property on occasion. His testimony, in substance, was that the "retreat" character of the Bonfiglioli property is a positive factor in its value, and that construction of the proposed house would tend to reduce that quality, thereby impairing market value. His testimony did not reflect any detailed examination of the Walshes' construction plan, or analysis of the market, and he acknowledged that any effect would depend on the market at the time of an attempted sale. In response, the Walshes offered two experts, real estate broker Michael Morello and appraiser Steven Elliot. Morello generally tended to agree with Tuttle as to the marketing value of a "retreat" setting, but emphasized setback from the street as the primary factor in characterizing a setting as "retreat," and also emphasized the tendency of new construction, particularly if attractively done, to raise property values in the surrounding area. On this basis, he expressed the view that the proposed plan would not impair the value of the Bonfiglioli property, and might even enhance it. These two experts, in my view, essentially cancel each other out, and I give neither any weight. Appraiser Steven Elliot examined town records to identify other locations in the area where a single lot had been subdivided and a new house built, and then looked at subsequent value of adjacent properties. All but one of his comparisons relied on assessed value, rather than actual sales price after the new construction. I find that only one of his comparisons, the one reflected by Exhibit 40, is actually analogous, in the sense of reflecting actual sales of an adjacent property, not part of the subdivided lot, both before and after the construction. One, in my view, is not enough to support a conclusion either way. Thus, the experts add little or nothing to the issue of effect on property value, and I am left to rely on common sense. Common sense suggests that, at least for some potential buyers of the Bonfiglioli property, with all other things being equal, more woods and fewer houses in the area would be positive factors, and an additional house nearby would be a negative factor, although quality building and landscaping might outweigh any negative effect. How these factors would affect value depends on the market at the time of any sale, and simply cannot be predicted. Accordingly, I do not find that the proposed subdivision will impair the value of Barbara Bonfiglioli's property.
CONCLUSIONS OF LAW AND DISCUSSION
1. Standard of Review.
General Laws c. 40A, § 17, provides for judicial review of a decision to grant or deny zoning relief. The Court's role in such an action is to "hear all evidence pertinent to the authority of the board . . . and determine the facts, and, upon the facts as so determined, annul such decision if found to exceed the authority of such board or . . . make such other decree as justice and equity may require." G.L.c. 40A, § 17. See Guiragossian v. Bd. of Appeals of Watertown, 21 Mass. App. Ct. 111, 114 (1985); DiGiovanni v. Bd. of Appeals of Rockport, 19 Mass. App. Ct. 339, 348 (1985).
Upon review of a zoning board's decision pursuant to G.L.c. 40A, § 17, the Court is required to hear the matter de novo and make findings of fact independent of any findings of the board. See Guiragossian v. Bd. of Appeals of Watertown, 21 Mass. App. Ct. at 114. The decision of the board has no evidentiary weight on appeal, and the Court determines the validity of the decision based on the facts found by the Court. See Josephs v. Bd. of Appeals of Brookline, 362 Mass. 290, 295 (1972); Needham Pastoral Counseling Center, Inc. v. Bd. of Appeals of Needham, 29 Mass. App. Ct. 31, 32 (1990).
Once the facts have been found, the Court's task is to determine whether, on those facts, the Board's action was within its authority under the statute. A reviewing court does not possess the same discretionary power as does the Board, and the decision of the Board can only be disturbed "if it is based 'on a legally untenable ground' . . . or is 'unreasonable, whimsical, capricious or arbitrary.'" Old Colony Council — Boy Scouts of America v. Zoning Bd. of Appeals of Plymouth, 31 Mass. App. Ct. 46, 49 (1991), quoting Subaru of New England, Inc., v. Bd. of Appeals of Canton, 8 Mass. App. Ct. 483, 486-487 (1979).
2. Standing.
The Court is empowered to review the action of a zoning board only upon complaint of one or more "person[s] aggrieved" within the meaning of G.L.c. 40A, § 17. Such a person is one who suffers some infringement of legal rights or of interests protected by the zoning law. See Circle Lounge Grille, Inc. v. Board of Appeal of Boston, 324 Mass. 427, 430 (1949). The injury must be more than speculative, see Tsagronis v. Board of Appeals of Wareham, 415 Mass. 329, 335 (1993) (Abrams, J., dissenting), citing Boston Edison Co. v. Boston Redevelopment Authority, 374 Mass. 37, 46 (1977), but the term "person aggrieved" should not be read narrowly. See Marotta v. Board of Appeals of Revere, 326 Mass. 199, 204 (1957).
Abutters entitled to notice of zoning board of appeals hearings enjoy a rebuttable presumption they are "persons aggrieved." See Watros v. Greater Lynn Mental Health Retardation Ass'n, Inc., 421 Mass. 106, 111 (1995). If standing is challenged, however, the jurisdictional question is decided on "all the evidence with no benefit to the plaintiffs from the presumption." Id. See also Barvenik v. Aldermen of Newton, 33 Mass. App. Ct. 129, 131 (1992), partially overruled on other grounds in Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719, 721(1996).
Determination of standing based on all the evidence does not require that the factfinder ultimately find the plaintiffs' allegations meritorious. See Marashlian v. Zoning Board of Appeals of Newburyport, 421 Mass. at 721. The plaintiffs must, however, put forth credible evidence to substantiate their allegations. Standing then becomes a question of fact for the trial judge. Id. See Bedford v. Trustees of Boston Univ., 25 Mass. App. Ct. 372, 377 (1988). Credible evidence, for this purpose, is evidence sufficient to show that the plaintiffs likely will suffer injury to their legal rights or their property interests. See Marashlian v. Zoning Board of Appeals of Newburyport, 421 Mass. at 723. Plaintiffs must establish their injury by direct facts and not personal opinion; speculative or remote fears are insufficient bases for aggrievement. Id.
The plaintiff in this case is an abutter to the Walsh property in its entirety prior to the subdivision, and to lot two after the subdivision. The decision that is the subject of this appeal affects both lots one and two of the Walsh property. Accordingly, the plaintiff has presumptive standing, subject to rebuttal. Since the Walshes have offered evidence to rebut the plaintiff's standing, the Court must decide as a factual matter whether the Board's decision is likely to affect legally protected interests of the plaintiff such as to render her a person aggrieved. For this purpose, the Court does not confine its evaluation to the modifications made in the decision that is presently under review, but looks to the proposed project as a whole, as authorized and facilitated by both the first and second decisions of the board. See Chambers v. Building Inspector of Peabody, 40 Mass. App. Ct. 762, 768 (1996).
When the facts found are viewed in this light, it is apparent that the plaintiff is a person aggrieved by the decision presently under review. Although the Court has rejected some of the plaintiff's claims of aggrievement, particularly those relating to safety and property value, the Court has found factual support for others of the plaintiff's concerns, particularly those relating to privacy, density, and the effect on drainage if the driveway were to be constructed without the planned mitigating measures, as the Walshes would be free to do under the Board's decision. Accordingly, the Court concludes that the plaintiff is a person aggrieved within the meaning of G.L.c. 40A, § 17, and has standing to bring this appeal.
3. Scope of Decision Under Review.
The next question to be addressed is what aspects of the Board's decision are properly before the Court for review. The decision itself granted relief in two forms: (1) modification of the lot line, so as eliminate the previously approved variance as to street frontage; and (2) the grant of one or more variances as to setback necessitated by the nonconformance of the existing house to current zoning requirements with the lot line so modified. The plaintiff takes the position that both forms of relief are before the Court for review, and that the burden is on the Walshes to justify the grant of variances based on facts in existence as of the time of the Board's decision. This, the plaintiff contends, the Walshes cannot do, both because the facts do not meet the legal requirements for grant of variances, and because the Board failed to make the findings necessary to exercise its discretion to do so even if the facts warranted. See G.L.c. 40A, § 10; Josephs v. Bd. of Appeals of Brookline, 362 Mass. at 295; Kirkwood v. Bd. of Appeals of Rockport, 17 Mass. App. Ct. 423, 428 (1984).
The decision explicitly grants a variance as to side yard setback, and may also be understood as granting a variance for "intensification" of the pre-existing front yard setback nonconformance. Upon review of the By-Law, the Court has failed to identify any provision relating to front yard setback that would be triggered by movement of a lot line running diagonal to the street; nothing in the change of lot line brings the house closer to the front property line, or the street closer to the house. Nevertheless, for purposes of this decision, the Court reads the Board's decision as granting two variances, one for side yard setback and one for front yard setback.
The Walshes counter that whatever variances may have been granted in the decision under review have become moot by the physical modifications made to the existing house in August of 2002. After removal of the corner of the porch, the house fully conforms to all setback requirements in relation to the new lot line, with the exception of the pre-existing nonconforming front setback, which is now less than it was before either of the Board's decisions. Accordingly, rather than review aspects of the Board's decision that have become moot, the Court should merely vacate those aspects and limit its review to the modification of the lot line.
The Walshes also contend that the variances are valid, based on adequate findings with adequate factual bases. As will be seen, the Court will not reach that contention.
In support of this argument, the Walshes rely on the established rule that the Court's review is de novo, so that it may hear evidence that was not in existence or was not presented to the Board at the time of its decision. See Josephs v. Bd. of Appeals of Brookline, 362 Mass. at 295 ; Bicknell Realty Co. v. Bd. of Appeal of Boston, 330 Mass. 676, 679 (1953) ; Needham Pastoral Counseling Center, Inc. v. Bd. of Appeals of Needham, 29 Mass. App. Ct. at 32; Guiragossian v. Bd. of Appeals of Watertown, 21 Mass. App. Ct. at 114. This rule is not precisely on point; de novo review remains review of the Board's exercise of discretion, so that it must be based on the facts that the Court finds to have existed at the time of the Board's action, even if those facts were not presented to the Board. Here, what the Walshes seek is not de novo review, but no review at all. Having changed the underlying facts, the Walshes now call upon the Court to proceed based on a new set of facts, and on that basis to decline to review the grant of variances on the ground of mootness.
The Court concludes that the basic doctrine of mootness dictates the approach the Walshes seek. Courts do not ordinarily engage in the theoretical exercise of deciding moot issues, in the absence of substantial justification to do so. See International Marathons, Inc. v. Attorney General, 392 Mass. 376, 380 (1984); Reilly v. School Committee of Boston, 362 Mass. 689, 695 (1972). Although Massachusetts courts have discretion to decide moot questions under proper circumstances, particularly where an issue has broad application and may otherwise evade review, International Marathons, Inc. v. Attorney General, 392 Mass. at 380, citing Karchmar v. Worcester, 364 Mass. 124, 136 (1973), an action for judicial review of such discretion does not a discretionary decision of a local regulatory board does not present such circumstances. See International Marathons, Inc. v. Attorney General, 392 Mass. at 380 ("[t]he mootness doctrine applies to judicial review of administrative decisions"). The grant of the variances in issue here has no broad application or general significance beyond this site and these parties. Accordingly, the Court concludes that it cannot properly review the grant of variances in the Board's decision, as that action of the Board has become moot by the Walshes' modification to the existing house in August of 2002. The proper relief, under the circumstances, is to annul the decision of the Board insofar as it granted one or more variances. See Reilly v. School Committee of Boston, 362 Mass. at 696.
The plaintiff seeks to characterize the Walshes' mootness argument as an effort to change their proposed plan after the Board's decision based on that plan. She suggests that they must return to the Board for new action on a newly revised plan, seeking approval of the lot line modification based on the revised structure of the existing house. She relies on Pendergast v. Bd. of Appeal of Barnstable, 331 Mass. 555, 558-560 (1954) (reversing Superior Court order requiring Board to grant variance, as usurpation of Board's discretionary authority); Chambers v. Building Inspector of Peabody, 40 Mass. App. Ct. at 766 (planning board exceeded authority by approving site plan with significant details, including size and location of building, delegated to building department for later determination without submission of revised plan to planning board); DiGiovanni v. Bd. of Appeals of Rockport, 19 Mass. App. Ct. at 343-350 (reversing as usurpation of Board's discretion District Court decision annulling Board decision affirming stop work order, and denying modification of variance, where construction did not conform to plan that had been incorporated into grant of variance); Ranney v. Board of Appeals of Nantucket, 11 Mass. App. Ct. 112, 113 (1981) (project proponent submitted second application for special permit, based on revised plan, after rejection of first; second plan held sufficiently different to escape two year bar on resubmission); and Board of Appeals of Dedham v. Corp. Tifereth Israel, 7 Mass. App. Ct. 876, 876 (1979) (reversing Superior Court decision vacating condition of special permit as invasion of Board's discretionary authority to fashion conditions).
These cases are inapposite. This case involves neither a special permit with conditions nor approval of a site plan, nor did the Board purport to incorporate into either of its decisions any plan fixing the dimensions of the existing house. The Court's annulment of moot variances, that are not being used and have no prospect of being used, does not usurp any discretionary authority of the Board. Rather, such action on the part of the Court reflects appropriate deference to the authority of the Board, by declining unnecessary and unwarranted review of its exercise of discretion.
The parties also encourage the Court to rule on another issue: whether the lot width variance granted in the Board's first decision has lapsed for lack of use within one year. See G.L.c. 40A, § 10. See generally Lopes v. Board of Appeals of Fairhaven, 27 Mass. App. Ct. 754, 756 (1989) (construing G.L.c. 40A, § 10). The Plaintiff argues that it has, so that the only basis for the lot width variance is the second decision, which continued the first "in full force and effect" except as modified. On this basis, the plaintiff attempts to characterize the second decision as a grant of a lot width variance, subject to review in this action, despite the plaintiff's failure to appeal from the first decision. The Walshes, on the other hand, contend that the one year period for exercise of the variance as granted in the first decision is tolled by this appeal from the second, since they could not exercise the variance granted in the first without the additional relief granted in the second. They also urge the Court to rule on this issue, so as to provide assurance that a favorable outcome here will permit them to proceed with the project.
In the Court's view, the issue of lapse exceeds the scope of the present appeal, and exceeds the Court's authority to rule at this time. Whether a variance has lapsed is a decision for the building inspector in the first instance, to be made upon application for a building permit based on the variance, and is then subject to review by the Board of Appeals. See G.L.c. 40A, §§ 7, 8. After such review, any person aggrieved may appeal to this Court pursuant to c. 40A, § 17, just as the plaintiff has done here. Upon such review, as in this action, the Court would find the facts de novo, but would then defer to the Board's exercise of discretionary authority upon the facts found. For this Court to short circuit that process so as to decide the issue now would be to usurp the discretionary power of the local authorities, in exactly the manner that the plaintiff has argued it should not do.
4. Review of Lot Line Modification.
What remains for review, then, is the Board's action in modifying its previous decision so as to change the lot line, thereby eliminating the previously granted variance for inadequate street frontage. The Board's authority to make such a modification is express. See G.L.c. 40A, § 14. It may do so even without a hearing merely to correct a clerical or technical error, but must hold a hearing, as it did here, to make a substantive modification. See Selectmen of Stockbridge v. Monument Inn, Inc., 8 Mass. App. Ct. 158, 164 (1979).
The plaintiff argues that the modification requires the same justification as would the grant of a variance: the Board must make the findings required by statute, and the proponent must prove the facts necessary to justify those findings. She offers no authority for that contention, and no sensible rationale appears for it. The effect of the modification in issue here is not to grant a variance, but to withdraw one, bringing the frontage of both lots into conformity with the By-Law. The purposes underlying the strict requirements for variances have no application to this situation. The Court concludes, therefore, that the appropriate standard of review for this modification is abuse of discretion. Nothing in the record suggests any such abuse. Accordingly, the Board's decision was within in statutory authority, and must be upheld.
CONCLUSION AND ORDER FOR JUDGMENT
Based on the foregoing findings and rulings, the Court hereby orders entry of JUDGMENT as follows:
The decision of the Braintree Zoning Board of Appeals, dated May 9, 2000, is annulled insofar as it granted variances, on the ground of mootness and not on the merits. The decision is affirmed insofar as it modified the Board's February 11, 2000, decision with respect to the location of the lot line between lots one and two of the Walsh property.
________________________ Judith Fabricant Justice of the Superior Court December , 2002