Case Summary

Factual and Procedural Background

Prior to May 10, 1962, Ronald and Frederika Burrows owned a parcel of land on Bayberry Road in Scituate. Over a period of years they made three conveyances by deed that resulted in a "leftover lot" (the "locus") roughly in the middle of the block they formerly owned. The locus was a rectangle approximately 200 feet long and 100 feet wide. Although the locus met the frontage and minimum area requirements of the Scituate zoning by-law, it did not comply with § 5-A-1, which required a minimum width of 125 feet at points where any part of a dwelling was located on the lot. Read with § 5-A-2 (minimum frontage 100 feet), the by-law permitted lots with a convex vase shape; the locus lacked the requisite bulges.

The Zoning Board of Appeals granted a variance to the Burrowses. The adjacent abutters to the north and south appealed the board's grant under G.L. c. 40A, § 17. After a de novo trial in the Superior Court, judgment was entered declaring that the board acted in excess of its authority and annulling the board's action. The Appeals Court affirmed that judgment.

Legal Issues Presented

Whether the Burrowses' rectangular lot, lacking the minimum 125-foot width where a dwelling would be located, presented the kind of special circumstances (e.g., unusual shape, soil, or topography) that could constitute a hardship under G.L. c. 40A, § 10, justifying a variance.
Whether a nonconformity of width that was produced by the owners themselves through prior subdivision of land can qualify as the "special circumstances" necessary to establish hardship under the statutory standard.
Whether the board's apparent motivation to maximize tax revenue constitutes a legally adequate basis for granting a variance.

Arguments of the Parties

Burrowses' Arguments

The Burrowses argued that the insufficient width of their rectangular lot constituted a special circumstance of the lot's "shape" and thus established a hardship under G.L. c. 40A, § 10, justifying the variance.
They relied on precedent (specifically Paulding v. Bruins) to support their contention that the lot's configuration warranted relief.

Other Parties' Arguments

The opinion does not contain a detailed account of the other parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Warren v. Zoning Bd. of Appeals of Amherst, 383 Mass. 1, 11 (1981)	Governing principles for determining whether lot characteristics constitute a special hardship under G.L. c. 40A, § 10.	The court treated this case as controlling authority relevant to whether the locus was encumbered with a statutory hardship.
Raia v. Board of Appeals of N. Reading, 4 Mass. App. Ct. 318, 322 (1976)	Principles concerning special circumstances and hardship for zoning variances.	Identified as governing precedent for the analysis of whether the locus presented a hardship.
Arrigo v. Planning Bd. of Franklin, 12 Mass. App. Ct. 802, 804 (1981)	Standards applicable to claims of hardship for variance purposes.	Cited with other cases as guiding the court's evaluation of the claimed hardship.
Gordon v. Zoning Bd. of Appeals of Lee, 22 Mass. App. Ct. 343, 351 (1986)	Principles on when a variance is appropriate and the insufficiency of certain motivations for granting variances.	Used both to govern the hardship analysis and to support the conclusion that maximizing tax revenue is an inadequate basis for a variance.
McCabe v. Board of Appeals of Arlington, 10 Mass. App. Ct. 934 (1980)	The distinction that a lot's "shape" is not to be confused with its "size."	Referenced to emphasize that the Burrowses' argument conflating shape and size was unpersuasive.
Paulding v. Bruins, 18 Mass. App. Ct. 707 (1984)	Case involving an unusually shaped ("pork chop") lot; considered by Burrowses as supportive authority.	The court found Paulding distinguishable because that lot was created prior to local zoning and because unusual characteristics beyond frontage/width were found there.
Kirkwood v. Board of Appeals of Rockport, 17 Mass. App. Ct. 423, 432 (1984)	Statement that maximizing tax revenue is not a sufficient reason to grant a variance.	Cited to support the court's conclusion that the board's apparent goal of maximizing tax revenues was an inadequate justification for the variance.

Court's Reasoning and Analysis

The court examined whether there was evidence of special circumstances affecting the locus distinct from the zoning district that would produce a substantial hardship under G.L. c. 40A, § 10. It noted that neither the board nor the Superior Court trial received evidence about soil conditions, shape, or topography of the locus that would establish a hardship unique to that lot.

The court rejected the Burrowses' contention that the rectangular lot's insufficient width constituted a special circumstance of "shape," emphasizing that the width deficiency resulted from conveyances made by the Burrowses themselves when the 125-foot requirement already applied. The court applied the principles of the cited precedents (including Warren, Raia, Arrigo, and Gordon) which guide the inquiry into whether a lot is subject to a hardship warranting variance relief.

The court distinguished Paulding v. Bruins on the ground that the lot in Paulding had been created before zoning and presented additional unusual characteristics besides insufficient frontage/width. The court also held that the board's motivation to maximize tax revenue was an insufficient basis for granting a variance, citing Kirkwood and Gordon.

Finally, the court addressed an asserted misconception by the Burrowses that the judge applied a per se rule precluding relief for self-created nonconforming lots. The court clarified that the judge did not establish such a per se rule; instead, the judge properly considered relevant factors (including Ronald Burrows's experience in real estate and familiarity with survey plans) in determining whether a hardship existed under the statutory standard. The judge also recognized the Burrowses' statutory right to renew a request for zoning relief under G.L. c. 40A, § 16.

Holding and Implications

Judgment affirmed.

Holding: The Appeals Court affirmed the Superior Court's judgment that the Zoning Board of Appeals acted in excess of its authority in granting the variance to the Burrowses; the board's action was annulled.

Implications: The direct effect is that the variance granted to the Burrowses was invalidated and the locus remains nonconforming with respect to § 5-A-1. The opinion applied existing precedent to the facts and did not announce a new legal rule beyond the court's application of those precedents; it further confirms that (1) self-created deficiencies in lot dimensions are not, without more, a sufficient basis for a variance and (2) perceived municipal tax advantages are an inadequate justification for granting zoning variances.

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CLARK B. SHAFER others vs. ZONING BOARD OF APPEALS OF SCITUATE others. Roberta Y. Shafer, Thomas M. Murray, Phyllis B. Murray. Ronald P. and Frederika Burrows.

Zoning, Variance.

Prior to May 10, 1962, Ronald and Frederika Burrows owned a parcel of land on Bayberry Road in Scituate from which, over a period of years, they made three conveyances by deed. Those conveyances produced a "leftover lot" (the "locus") roughly in the middle of a block which the Burrowses had owned in its entirety in 1961. Although the locus, a rectangle 200 feet long (exclusive of minor and immaterial survey deviations) and 100 feet wide, satisfied the frontage and minimum area requirements of the Scituate zoning by-law, it failed to comply with § 5-A-1 of the zoning by-law, which required a minimum width of 125 feet at the points where any part of a dwelling was located on the lot. Read with the minimum frontage requirement of 100 feet prescribed by § 5-A-2, the by-law permitted lots with the shape of a convex vase. The locus did not have the necessary bulges. Following the grant of a variance to the Burrowses by the board of appeals, the abutters to the north and south of the locus took an appeal under G.L.c. 40A, § 17. After trial, a judgment was entered declaring that the board had acted in excess of its authority and annulling the board's action. We affirm.

There was no evidence before the board or at the de novo trial in the Superior Court regarding "soil conditions, shape or topography of [the locus] . . . especially affecting [the locus] but not affecting generally the zoning district in which it is located," which "involve[d] substantial hardship, financial or otherwise, to the petitioner. . . ." G.L.c. 40A, § 10, as appearing in St. 1975, c. 808, § 3. The Burrowses' argument that the insufficient width of their rectangular lot constitutes a special circumstance of "shape" is unpersuasive, particularly as the deficiency is one which they themselves produced through subdivision of the land they originally owned at a time when the 125 foot width requirement pertained. The case is governed by Warren v. Zoning Bd. of Appeals of Amherst, 383 Mass. 1, 11 (1981); Raia v. Board of Appeals of N. Reading, 4 Mass. App. Ct. 318, 322 (1976); Arrigo v. Planning Bd. of Franklin, 12 Mass. App. Ct. 802, 804 (1981); and Gordon v. Zoning Bd. of Appeals of Lee, 22 Mass. App. Ct. 343, 351 (1986). The "shape" of a lot is not to be confused with its "size." McCabe v. Board of Appeals of Arlington, 10 Mass. App. Ct. 934 (1980). Paulding v. Bruins, 18 Mass. App. Ct. 707 (1984), upon which the Burrowses rely, is altogether distinguishable, not only because the "pork chop" shaped lot involved in that case was created in the 1920's, prior to the adoption of any zoning by-law in the town concerned, but also because the board and the trial judge in that case found unusual characteristics of the lot apart from its insufficient frontage and width. Id. at 711.

The board's decision indicates a desire to maximize taxes for the town from potentially prime land, but that is an inadequate reason for a variance. See Kirkwood v. Board of Appeals of Rockport, 17 Mass. App. Ct. 423, 432 (1984); Gordon v. Board of Appeals of Lee, 22 Mass. App. Ct. at 351.

The judge did not, as the Burrowses contend on appeal, make a "per se" ruling that a self-created nonconforming lot cannot constitute a hardship. Under the Warren, Raia, Arrigo, and Gordon cases cited above, the judge's findings that Ronald Burrows was experienced in real estate transactions and familiar with reading survey plans were relevant to an analysis whether the locus was encumbered with a hardship within the meaning of G.L.c. 40A, § 10. Our reading of the judge's "Findings, Rulings and Orders" lends no support to the Burrowses' argument that the judge gave weight to three previous denials of zoning relief by the board concerning essentially the same request by the Burrowses. At trial, the judge expressly recognized the right of the Burrowses to raise anew a request for zoning relief that had previously been unfavorably acted upon. See G.L.c. 40A, § 16.

Judgment affirmed.

SHAFER v. ZONING BOARD OF APPEALS