Opinion
No. 04-1575.
May 24, 2007.
FINDINGS OF FACT, RULINGS OF LAW, MEMORANDUM OF DECISION, AND ORDER
INTRODUCTION
The defendant, the Andover Board of Appeals (Board of Appeals) denied the plaintiff, Northeastern Associates Engineers, Inc.'s (Northeastern), request for a variance to use its property at 394 North Main Street, now zoned for residential purposes, for commercial purposes. Pursuant to G.L. c. 40A, § 17, Northeastern appeals. Determining that there was no defect in the Board of Appeals' decision, the court finds for the Board of Appeals.
FINDINGS OF FACT
Based on the evidence presented and reasonable inferences from the evidence, the court makes the following findings of fact:
1. Northeastern owns the home at 394 North Main Street. For more than a decade, whenever there was a heavy rain the basement has flooded.
2. The construction of Route 495, the reconstruction of Poor Street decades ago, and, possibly, long-term environmental changes have raised the water table causing the flooding.
3. Northeastern has made some efforts to control the flooding by, for example, installing a sump pump, and trying to direct water away from the house. However, Northeastern has not invested in serious engineering studies designed to resolve the issue.
4. Nearby public catch basins are clogged by leaves and debris but Northeastern has not made a serious effort to clear the basins or contact the state or other governmental entities to request that the drainage issues be resolved.
5. With the regular flooding in the basement, the property is more suitable for use as a commercial property than as a home, but it remains suitable for use as a home.
6. Appliances located in the basement could be mounted on high pallets, as are the furnace and boiler, or they could be relocated upstairs.
7. The flooding in the basement significantly decreases the rental value of the home, but does not eliminate it.
8. Under the best of conditions, the home's rental value is low. The home is quite small and is located on a very small triangular corner lot, on an extremely busy street on which cars travel at high speeds next to Route 495, and it is situated just down the street from busy ramps to 495.
9. The property is located at a valuable commercial location but a poor residential location; this is Northeastern's motivation for seeking a variance.
10. Northeastern has rented the house fairly regularly up until its application for a variance, but it has been vacant since.
11. The land that the house sits on is quite low and the home is on one of the lowest lots in the immediate area, but it is not unique.
12. The property is one of the more severely flooded lots in the area.
13. The house is suitable for people to occupy and was rented to a man and woman who lived there until 2003.
14. The house can be lawfully occupied.
15. The basement has mold but there is no mold above the basement.
16. The mold is controlled by occasional cleanings and its presence does not pose a threat to the health of persons living in the house.
FINDINGS OF FACT IN RESPONSE TO PLAINTIFF'S REQUESTS
1.-4. Allowed.
5.-11. No action because these are not requests for findings of fact. However, the court finds as follows: The court permitted James W. Bougioukas to testify as an expert based on an implicit finding that he was qualified as an expert in the areas on which he opined. However, he has not expended the resources necessary to complete a sophisticated and credible study of the infiltration of water into the basement. It is true that there are commercial uses in the general area, and that one of the major causes of flooding was the construction of Route 495. However, except since 2003, the house has usually been rented and has provided a steady rental income.
12. Allowed in part and Denied in part. Northeastern has not provided an independent, impartial engineering study that persuades the court as to the precise cause of the flooding, other than that it was caused by the construction of Route 495, the reconstruction of Poor Street and unknown general environmental causes. Allowed as to the claim that the state poorly maintained the catch basin and that the state did not alleviate the drainage problems, but Denied as to the claim that the state was notified on many occasions.
13. No action, as this is not a request for a finding of fact. However, the court finds that the reconstruction of Poor Street was a major cause of the problem. The court also finds that sporadic complaints to the state and the town have not resolved the issue.
14. Allowed as to the claims about the tax abatement procedure and only as to "several" incidents of sewage flooding.
15. Allowed.
16.-17. No action as these are not requests for findings of fact, however, the court finds that Northeastern has not obtained a credible engineering assessment of the precise cause of the water problem. The general causes of the flooding are the construction of Route 495, the reconstruction of Poor Street and possibly long-term changes in the water table. Insufficient engineering efforts have been made to control the water problem.
18. Denied. The building can be used as a dwelling despite flooding at times of heavy rain. Allowed as to the presence of mold in the basement.
19.-22. .No action as these are not requests for findings of fact. However, the court finds that Northeastern has not proven that French drains would not work. The building could be used as an office or home. There is no hardship caused by the topography. Northeastern seeks the variance in order to increase its rental income not because the building is unusable as a home.
23. Allowed.
24.-29. No action as these are not requests for findings of fact. However, the court finds that no one has formulated, or given a serious attempt to formulating a credible engineering solution to the problem. There is standing water and mold in the basement, it is illegal to drain a sump pump into a public sewer, and draining the sump pump onto the lawn drains water onto the land which is supersaturated during heavy rain. The storm drain does not function correctly but Northeastern has not proven the cause of the poor functioning, nor has Northeastern proven a design defect for the storm drain systems located on the exit ramp.
30. Allowed.
RULINGS OF LAW
In this appeal pursuant to G.L. c. 40A, § 17, the court "is required to hear the matter de novo and determine the legal validity of the decision of the board upon the facts found by [this court]."Josephs v. Bd. of Appeals of Brookline, 362 Mass. 290, 295 (1972). See generally Devine v. Zoning Bd. of Appeals of Lynn, 332 Mass. 319, 321 (1955). The Board's decision cannot be disturbed unless it is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary. MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635, 639 (1970).
Northeastern has the burden of providing evidence that substantiates its application for a variance. Section 10 of G.L. chapter 40A delineates three requirements for granting a variance.Spaulding v. Bd. of Appeals of Leicester, 334 Mass. 688, 692 (1956). These requirements are that: 1) enforcement of the bylaw would involve a substantial hardship to the appellant; 2) the hardship is due to the soil conditions, shape, or topography of the lot; and 3) the grant of a variance would not nullify or substantially derogate from the intent or purpose of the zoning bylaw. SeeChiancola v. Bd. of Appeals of Rockport, 65 Mass. App. Ct. 636, 637 (2006). "Even if [a] plaintiff's lot [has] satisfied all the requirements of G.L. c. 40A, § 10, '[n]o person has a legal right to a variance and they are to be granted sparingly.'" Guiragossian v.Bd. of Appeals of Watertown, 21 Mass. App. Ct. 111, 115 (1985), citingDamaskos v. Bd. of Appeal of Boston, 359 Mass. 55, 61 (1971).
Regarding variances, G.L. c. 40A § 10 provides:
"The permit granting authority shall have the power after public hearing. . . to grant upon appeal or upon petition with respect to particular land or structures a variance for the terms of the applicable zoning ordinance or by-law where such permit granting authority specifically finds that owing to circumstances relating to the soil conditions, shape, or topography of such land structures and especially affecting such land or structures 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, financial or otherwise, to the petitioner or appellant, and 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 such ordinance or by-law."
James W. Bougiokas (Bougiokas), the chairman of Northeastern, testified that he sought a variance to change the use of 394 North Main Street (House) from residential to commercial. Bougiokas claimed that severe flooding in the basement made it unusable for residential purposes, but indicated that it was usable for commercial purposes.
Northeastern has failed to meet any of the statutory requirements in G.L. c. 40A, § 10. First, Northeastern has failed to demonstrate that it has suffered a substantial hardship resulting from the enforcement of the zoning bylaw that requires the House to be used for residential purposes. Northeastern argues that it will suffer a substantial hardship when it incurs expenses to fix the drainage problems in the House. Northeastern has also stated that another hardship it has suffered is reduced rents from residential tenants due to flooding in the basement.
These grounds are insufficient to constitute "substantial hardship" under G.L. c. 40A, § 10. The fact that a landowner will have to make expenditures in order to maintain a use is not a "substantial hardship" for purposes of the statute. See City Council of Waltham v.Vinciullo, 364 Mass. 624, 630-631 (1974) (no substantial hardship to permit a variance where there was an expense involved in continuing an existing use, or because a higher profit could have resulted from a nonconforming use). Appellate courts have not found reduced rental income to be a "substantial hardship" under the statute. SeePlanning Bd. of Barnstable v. Bd. of Appeals of Barnstable, 358 Mass. 824, 824 (1971) (no justification for a variance although an apartment was a more economical and practical use than a single family home as permitted by zoning bylaw); Wolfson v. Sun Oil Co., 357 Mass. 87, 90 (1970) (increased profits with variance did not qualify as a hardship justifying grant of a variance); Bicknell Realty Co. v. Bd. Of Appeal of Boston, 330 Mass. 676, 681 (1953) (fact that owner whose property was in an area zoned as residential could not put property to profitable use except by erection of business building did not justify decision of board of appeal granting variance to owner); Simone v. Bd. of Appeals of Haverhill, 6 Mass. App. Ct. 601, 603 (1978) (decrease in market value from $50,000 if variance were granted for retail purposes to $10,000 if property used in accordance with zoning ordinance did not warrant granting a variance).
Northeastern has also failed to demonstrate that its hardship results from the soil conditions, shape, or topography of the lot on which the House sits. See Paulding v. Bruins, 18 Mass. App. Ct. 707, 711-712 (1984) (variance grant justified where lot would have been unbuildable without it). The House is located on one of the lowest lots in the immediate area, however, there is nothing unique about it. Flooding results from of the construction of Route 495, the reconstruction of Poor Street and unknown causes. In an effort to stop the flooding, Northeastern has installed a sump pump to direct water away from the home, however, Northeastern has not yet invested in credible engineering studies to devise a permanent solution to the problem. Northeastern has not cleared the catch basins on the House to remove debris that clogs them; nor has Northeastern contacted the state or other governmental entities, in any systematic way, to request that they assist in solving the flooding problem. Unless an owner's hardship relates to the soil conditions, shape, or topography of the land, a variance cannot lawfully be granted. Bertrand v. Bd. of Appeals of Bourne, 58 Mass. App. Ct. 912, 912 (2003) (landowner's financial hardship from not being able to develop locus with two homes unrelated to soil condition, shape, or topography so variance could not be granted).
Finally, Northeastern has provided insufficient evidence to demonstrate that granting the variance would neither nullify nor substantially derogate from the intent or purpose of the zoning bylaw. The current character of the neighborhood is residential despite the presence of both a funeral home and a church in the neighborhood. SeeBateman v. Bd. of Appeals of Georgetown, 56 Mass. App. Ct. 236, 242 (2002), rev. denied, 438 Mass. 1107 (2003) (variance grant neither nullified nor substantially derogated from purpose of zoning bylaw when the locus exceeded the bylaw requirements in every aspect except frontage and proposed use would maintain the locus's rural character). Here, the grant of the variance to permit a commercial use on the House would derogate from the intent or purpose of the zoning bylaw that permits a residential use.
The Board's decision denying the variance was not unreasonable, whimsical, capricious or arbitrary or otherwise defective.
ORDER
The decision of the Defendants Zoning Board of Appeals and members of the Zoning Board of Appeals for the Town of Andover is affirmed.