Agenda - Planning Commission - 11/01/2007

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Zoning Bulletin side setbacks, and 100 feet of frontage in order to build on the property without a variance. Aron wanted to raze the existing dwelling on the property and con- struct a two-story residence further to the rear of the lot, outside the ex- isting dwelling's footprint. Because the property did not meet the require- ments in the by-law, Aron applied to the zoning board of appeals for a variance. In relevant part, the board had the authority under general law to grant avariarice if it found that: "owing to circumstances relating to the soil conditions, shape, or topography of such land or structures...a literal enforcement of the provisions of the ordinance or by-law would involve substantial hardship, financial or otherwise, to $e petitioner." The board heard the application and subsequently voted unanimous- ly.to grant the variance. Whittemore, a neighboring property owner, ap- pealed the board's decision to this court, contending that the variance was invalid for failure to meet the requirements for the granting of a variance. Whittemore requested that the court annul the variance. DECISION: Request for annulment granted. The court began its de novo review (meaning that it heard the case as though for the first time) of the board's decision with ari acknowledgment that: 1) the court would generally defer to an administrative board's deci- sion on zoning matters; 2) case law had created a clear precedent that a variance could not be granted unless all of the requirements for variance ) were met; and 3) variances were to be granted SparinglY..' In its decision, the board had stated that there were "conditions espe~ cially affecting this parcel that [did] not affect generally the zoning district within which it [was] located." Specifically, the board found that the lot was "severely sloped" with granite outcroppings, creating a unique parcel that was unbuildable without a' variance. At trial, the board argued that these findings established that Aron's application had met the variance re- quirements and that its decision was not arbitrary, capricious, or an abuse of discretion: However, the court found that the evidence presented at trial, including the judge's own observations made during a visit to the property, did not' support the board's claims. The court noted that at least five of the sur- rounding lots had very similar topography and shape as Aron's property, and that, while Aron's lot presented some "challenging" topography, the challenges were not unique to his property. In addition, there was no evidence that demonstrated that Aron's prop- erty was uniquely shaped, the existing structure on his property was un- usual, or the soil conditions were different from surrounding properties. The court noted that Aron's proposed new house could have been "a more attractive residence, better suited to the neighborhood, and, quite possibly, a better use of the site, but that [did] not entitle Mr. Aron to the variance in light of the failure to meet the statutory requirements." 6 92 ....... )