Opinion
No. 12–P–1149.
2013-05-8
Janice A. LAWLOR, trustee, v. ZONING BOARD OF APPEALS OF TAUNTON & another.
By the Court (KAFKER, VUONO & FECTEAU, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Janice A. Lawlor, appeals from a judgment dismissing her G.L. c. 40A appeal. She contends that the Zoning Board of Appeals of Taunton should not have issued a variance to her neighbor, defendant Kathleen Campaniro (Campaniro). The trial judge ruled that the plaintiff lacked standing and dismissed the complaint on that basis. Anticipating the “possibility that an appellate court may disagree with [his] conclusion as to standing,” the judge went on to hold that even if she had standing, the plaintiff's appeal failed on the merits. We reverse.
Standing. We accept the judge's findings of fact absent clear error, but must independently apply the law to the facts found. See 39 Joy St. Condominium Assn. v. Board of Appeal of Boston, 426 Mass. 485, 488 (1998). As standing is a predicate to reaching the merits, we address the judge's conclusion on that issue first. Any “person aggrieved,” that is, one who “suffers some infringement of [her] legal rights,” has standing to challenge the issuance of a variance, and “the term ‘person aggrieved’ should not be read narrowly.” Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719, 721 (1996). Once Campaniro offered evidence to rebut the plaintiff's presumptive standing, it became the plaintiff's burden to “put forth credible evidence to substantiate” allegations of injury that is “more than speculative.” Ibid. However, the fact finder need not “ultimately find a plaintiff's allegations meritorious. [Such a requirement] would be to deny standing, after the fact, to any unsuccessful plaintiff.” Ibid. The plaintiff argues that the division of Campaniro's lot would result in increased traffic on the narrow passageway between the two lots, because the occupant of the rear parcel would have to use it to access their property.
The judge found that Campaniro, like the plaintiff, has a preexisting prescriptive right to use the passageway. Because this right was not granted by virtue of the variance, the judge held that use of the passageway was irrelevant to the question whether the plaintiff was aggrieved. However, an increase in traffic, even over a public way, can be sufficient to confer standing. See Choate v. Zoning Bd. of Appeals of Mashpee, 67 Mass.App.Ct. 376, 383–387 (2006). Cf. Marashlian, supra at 723 (minimal increase in traffic and decrease in available parking gave rise to standing). At present, it appears that any use of the mobile home as a residence would conflict with the applicable zoning ordinance. See Taunton Zoning Ordinance §§ 6.2, 8.4, 8.4.2 (2007). The 1979 variance has long since expired, and a use pursuant to a variance is not a nonconforming use entitled to protection against zoning regulations. See Mendes v. Board of Appeals of Barnstable, 28 Mass.App.Ct. 527, 528–531 (1990). See also Taunton Zoning Ordinance § 2.1 (2007) (definition of “nonconforming use”). Without the variance at issue, the mobile home could be used perhaps as an accessory structure; with the variance, the rear parcel becomes a lot suitable for a single-family dwelling. Moreover, occupants of the rear parcel could only access it by using the passageway, and so at least some increased traffic would be all but assured. Cf. Choate, supra at 385–386 (“it was a matter of common sense rather than expertise to know that a house on each of the defendants' two lots would generate more traffic than one house on the two lots if combined”). We conclude that the judge erred in denying standing to the plaintiff. See id. at 385–387.
In particular, she testified that when large vehicles like oil trucks or septic trucks come to service the mobile home, her house shakes. The judge made no findings relating to this testimony.
Merits. The judge concluded, as did the Zoning Board of Appeals (board), that Campaniro's parcel has a unique shape, and she would suffer substantial hardship in the absence of a variance by being unable to use the rear parcel, which “appears to have no other use but that of a residential home site.” Paulding v. Bruins, 18 Mass.App.Ct. 707, 711–712 (1984). However, in Paulding, the defendant was seeking not to subdivide a buildable lot, but to build on a single, large but oddly-shaped lot. See ibid. Here, Campaniro owns a single lot that is not only buildable but contains a home,
and she seeks to divide her lot for financial advantage. This does not constitute a substantial hardship warranting a variance. See Raia v. Board of Appeals of N. Reading, 4 Mass.App.Ct. 318, 322 (1976) (“The division of [a single conforming] property into two nonconforming lots did not create a substantial hardship especially affecting the vacant lot, even though the latter could not be built upon, as it could have remained part of a conforming lot”). See also Bruzzese v. Board of Appeals of Hingham, 343 Mass. 421, 424 (1962) (“We may infer that it would be of greater advantage to [the plaintiff] if he were permitted to erect a second house on this lot. However, we do not construe the use of the words ‘financial or otherwise’ in the statute to mean that a deprivation of potential advantage constitutes a ‘substantial hardship’ ”). After all, “[a] property owner cannot obtain a variance by creating [her] own hardship.” Lamb v. Zoning Bd. of Appeals of Taunton, 76 Mass.App.Ct. 513, 515–516 (2010). Neither the judge nor the board identified any other substantial hardship to Campaniro.
Indeed, her lot used to be significantly larger, but Campaniro previously sold an adjacent parcel behind her current lot.
Therefore, the variance cannot stand. The judgment is reversed, and a new judgment shall enter revoking the variance.
Indeed, the board made no findings at all relating to substantial hardship. Cf. Simone v. Board of Appeals of Haverhill, 6 Mass.App.Ct. 601, 604 (1978) (board's decision may be annulled if it gives insufficient reasons for variance).
So ordered.