Furlong v. Zoning Board of Appeals of Salem

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15-P-1174 Appeals Court
MICHAEL F. FURLONG & another1 vs. ZONING BOARD OF APPEALS OF
SALEM & another.2
No. 15-P-1174.
Suffolk. October 7, 2016. - December 12, 2016.
Present: Hanlon, Sullivan, & Blake, JJ.
Zoning, Variance, Setback. Practice, Civil, Zoning appeal.
Civil action commenced in the Land Court Department on
February 17, 2012.
The case was heard by Robert B. Foster, J.
Dana Alan Curhan (Lawrence A. Simeone, Jr., with him) for
the plaintiffs.
Leonard F. Femino for BHCM Inc.
BLAKE, J. The defendant, BHCM Inc., doing business as
Brewer Hawthorne Cove Marina (Brewer), sought and received a
dimensional variance from the defendant, zoning board of appeals
of Salem (board), allowing it to build a new boat repair
1
Delores T. Jordan.
2
BHCM Inc., doing business as Brewer Hawthorne Cove Marina.
2
facility outside of the setback requirements of the local zoning
ordinance. The plaintiff abutter, Michael F. Furlong, filed a
G. L. c. 40A, § 17, appeal in the Land Court. Following a jury-
waived trial, the judge affirmed the board's decision,
concluding that strict enforcement of the zoning ordinance would
create an unnecessary safety hazard, and that Brewer accordingly
had demonstrated a hardship sufficient to merit the allowance of
a variance. We agree and affirm.
Background. We recite the facts found by the judge, which
are undisputed by the parties. Brewer owns a nonrectangular
parcel of property3 with frontage on White Street and Turner Rear
Street in Salem (property) that it operates as an active marina.
The property consists of a large, open, paved area with about
115 parking spaces and several structures, and is bordered by
Salem harbor, residential dwellings, and a municipal parking
lot. The structures include a combination shower, bath, and
laundry house, a pressure wash shed, an approximately 1,500
square foot temporary Quonset hut located in the center of the
property, a small dock house, and a "marine travel lift" hoist
(travel lift). As part of its marina operation, Brewer conducts
boat repairs on the property, either outdoors or inside the
Quonset hut.
3
The lot has at least twenty-five sides, five of which
border the water.
3
By application dated October 26, 2011, Brewer submitted a
petition for a variance to the board seeking to construct a new
building on the northern edge of the property, outside of the
setback requirements of the local zoning ordinance. The
proposed building would serve as the marina's boat repair
facility, allowing the removal of the Quonset hut from the
center of the property, and would also serve as the new location
for the office. Brewer seeks to place the proposed building at
the edge of the property in order to provide adequate room for
the safe operation of the travel lift,4 and to reduce the noise
and fumes generated by the boat repairs presently occurring in
the Quonset hut. As part of the building plan, the width of the
entrance to the marina from White Street also would be widened,
which would provide better access, including for emergency
vehicles.
4
The judge found: "The travelift is used year-round. It
lifts boats from the water and carries them to where they will
be repaired. It repeats the process to put the boats back in
the water. These operations require the travelift to turn in a
radius equal to 1.4 times the length of the boat. Because there
are significant blind spots for the operator of the travelift, a
certain amount of open area is required for its safe operation,
especially given that marina members also use the marina to
access their boats. Locating the Building on the northern edge
of the Property would provide an open area for operation of the
travelift away from where cars are parked."
4
Following a duly noticed public hearing on Brewer's
application,5 the members of the board voted to approve the
application and filed a decision dated February 1, 2012, with
the local city clerk's office. The board's decision notes that
in so deciding, the board found that "impacts to the
neighborhood were shown to be less substantial if sited as
proposed rather than where it would be allowed by right."
Furlong, who lives in a condominium unit approximately one
hundred feet from the northern property line of the property,
filed a complaint in the Land Court pursuant to G. L. c. 40A,
§ 17, challenging the decision of the board as legally
untenable, arbitrary, and capricious.
In a comprehensive and thoughtful memorandum of decision,
the judge ruled that Furlong is a person aggrieved by the
variance and, accordingly, has standing to bring the present
action.6 On the merits of the variance, the judge found that the
evidence established that, owing to the shape of the property,
strict enforcement of the zoning ordinance would result in a
risk of physical harm. Finding that the safety risk constituted
a substantial hardship to Brewer, the judge affirmed the board's
allowance of the variance. This appeal followed.
5
An initial public hearing was held on November 16, 2011;
the hearing was continued to January 18, 2012.
6
Furlong's status as a person aggrieved is not challenged
on appeal.
5
Standard of review. When a decision of a zoning board of
appeals is appealed, "the judge is required to hear the matter
de novo and determine the legal validity of the decision of the
board upon the facts found by him." Josephs v. Board of Appeals
of Brookline, 362 Mass. 290, 295 (1972) (Josephs). See G. L.
c. 40A, § 17, inserted by St. 1975, c. 808, § 3 ("The court
shall . . . determine the facts, and, upon the facts as so
determined, annul such decision if found to exceed the authority
of such board"). "Judicial review is nevertheless
circumscribed: the decision of the board 'cannot be disturbed
unless it is based on a legally untenable ground, or is
unreasonable, whimsical, capricious or arbitrary.'" Roberts v.
Southwestern Bell Mobile Sys., Inc., 429 Mass. 478, 486 (1999),
quoting from MacGibbon v. Board of Appeals of Duxbury, 356 Mass.
635, 639 (1970). In our review of the judge's decision, we
accept his findings of fact unless clearly erroneous, but
independently review his determinations of law. Shirley Wayside
Ltd. Partnership v. Board of Appeals of Shirley, 461 Mass. 469,
475 (2012).
Discussion. By their very nature, variances "are
individual waivers of local legislation" that permit
nonconformity. Mendoza v. Licensing Bd. of Fall River, 444
Mass. 188, 207 (2005). For that reason, they "are not allowed
as a matter of right, but, rather, should be 'sparingly
6
granted.'" Lussier v. Zoning Bd. of Appeals of Peabody, 447
Mass. 531, 534 (2006), quoting from Barron Chevrolet, Inc. v.
Danvers, 419 Mass. 404, 408 (1995).
Consistent with these principles, the statutory
requirements that must be met for an individual seeking a
variance are rigorous. Josephs, supra at 292. General Laws
c. 40A, § 10, inserted by St. 1975, c. 808, § 3, authorizes a
board of appeals to grant a variance from the local zoning
ordinance only where it:
"specifically finds [a] that owing to circumstances
relating to the soil conditions, shape, or topography
of such land . . . and especially affecting such land
. . . but not affecting generally the zoning district
in which it is located, [b] 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 [c] that desirable
relief may be granted without substantial detriment to
the public good and [d] without nullifying or
substantially derogating from the intent or purpose of
such ordinance or by-law."7
Each of the requirements of the statute must be met before a
board may grant a variance. Warren v. Zoning Board of Appeals
of Amherst, 383 Mass. 1, 9-10 (1981).
Here, the judge found that each of the statutory
requirements had been met based on the evidence presented at
7
The zoning ordinance at issue here essentially tracks the
statutory requirements of G. L. c. 40A, § 10, with the exception
of the language of prong [a], supra, which appears to be more
lenient. The difference does not affect the outcome of this
case.
7
trial. As to the first two requirements, the judge found that,
because of the peculiar shape of the property, hardship in the
form of safety hazards would result if the building were
constructed within the setback requirements. The safety
hazards, likely to cause "injury to people and property," would
be caused by the building interfering with the operation of the
travel lift, which requires a large, open turning radius free of
blind spots. See note 3, supra. Placement of the building at
the northern edge of the property would eliminate the safety
risks associated with strict enforcement of the setback
requirements. As to the final two requirements under the
statute, the judge agreed with the board that the proposed
placement of the building would neither be of substantial
detriment to the public good, nor nullify or substantially
derogate from the intent or purpose of the ordinance, as the
proposed placement of the building would limit interference with
neighbors' views, and limit the perception of increased density
in the area by maintaining as open an area as possible.8
8
Furlong argues that Brewer has failed to meet its burden
of showing no substantial detriment to the public good because
his view would be affected by the granting of the variance. The
claims fails, if for no other reason, because the building would
affect Furlong's view even if built by right. Contrast, e.g.,
Chiancola v. Board of Appeals of Rockport, 65 Mass. App. Ct.
636, 637-638 (2006) (upholding denial of variance to build
residential structure on lot because poor emergency vehicle
access is substantial detriment to public good).
8
On appeal, Furlong argues that the safety concerns found by
the judge do not constitute a hardship under the statute. The
question whether a safety concern, ameliorated by the granting
of a variance, qualifies as a hardship under § 10 has not been
extensively analyzed in our case law. Indeed, the only case to
have so held is Josephs, supra. In Josephs, the Supreme
Judicial Court examined a variance allowing a developer to
construct a loading bay with a reduced height in a high-rise
commercial and residential building. The Superior Court judge
in that case found that if the zoning ordinance were strictly
applied, one alternative would result in a safety hazard to
persons using the excessively steep ramp, while the other would
result in an economic loss due to interference with the
configuration of the building. Id. at 293. On these facts, the
court concluded that the judge was warranted in finding that a
"hardship, financial or otherwise" had been demonstrated. Ibid.Like the developer in Josephs, the facts here demonstrate
that if Brewer adjusted its plans to fit within the requirements
of the local zoning ordinance, a significant risk of harm for
the people and property near the travel lift would result. We
agree with the judge that "[w]here a variance diminishes the
Furlong also argues that the variance substantially
derogates from the intent or purpose of the zoning ordinance by
increasing density. The argument likewise fails, as the judge's
finding that the proposed placement of the building would limit
the perceived density in the area is supported by the record.
9
risk of an existing harm or where it prevents a greater risk of
harm that would result from compliance with a zoning ordinance,
such a hardship may merit a variance." We also agree that the
unique circumstances in this case, and the degree of danger that
would result from compliance with the zoning ordinance, support
the judge's finding of a hardship. Accordingly, where the
unchallenged evidence, found de novo by the judge, satisfies all
of the requirements of the statute, the decision of the board
must be affirmed.9
Judgment affirmed.
9
Citing Warren v. Zoning Bd. of Appeals of Amherst, 383
Mass. at 12-13, and Arrigo v. Planning Bd. of Franklin, 12 Mass.
App. Ct. 802, 804 (1981), Furlong argues that relief in the form
of a variance is not warranted in this case because any hardship
Brewer is facing is of its own creation. Warren and Arrigo are
inapposite, as they concern the knowing division of a lot for
the purpose of creating multiple smaller, nonconforming lots,
rather than the placement of a building within a single lot that
could be built by right. Finally, the alternative options
offered by Furlong to address the safety concerns are either
speculative or were implicitly rejected by the judge as
inadequate.