Section Review

Variance denials and abuse of discretion: Guardione v. Longmeadow

In the summer of 2004, Anthony Guardione built a low drystone wall that wrapped around two sides of his property, located on a busy corner. Everyone loved it except the building inspector, who promptly notified Guardione that the wall violated the town zoning bylaw because it was located within the "primary setback." The inspector suggested that Guardione remove the wall or apply for a variance. Unsurprisingly, Guardione took his case to the zoning board of appeals, where his arguments were met without sympathy and his request denied, the board specifically noting that it found no hardship. Guardione filed an appeal pro se in Superior Court. (He retained counsel a few weeks before the scheduled trial date.)

The governing statute, Chapter 40A, section 10, provides that a variance may be granted only upon certain findings; first, that, owing to circumstances relating to soil conditions, shape or topography of the land or structures ("topography of structures" being very much an undefined term) and specific to the locus, literal enforcement of the zoning bylaw would create hardship; secondly, that relief could be granted without detriment to the public good or derogation from the purpose of the bylaw. Attempting to meet these standards, Guardione proffered the facts that his lot was an odd shape, with the house, built long before zoning, located quite close to the back line, and his options further circumscribed by the presence of a shared driveway. The wall, he argued, was intended to partially enclose a level area of lawn adjacent to the house as a recreational ground for children and adults, so that they would not inadvertently run into the street. Replicating this area would require Guardione to clear and grade a "natural" area presently overgrown with trees and brush. At trial, Guardione presented evidence that this work would cost $10,000.

The town had altered its zoning bylaw in 2003, amending a pertinent article in the general definitions section and adding an article solely devoted to "fences." (The definition of "fences" in the new article was broad enough to include walls.) The apparent intent, at least as stated by the ZBA in its denial of Guardione's application, was to "eliminate fencing of any kind forward of primary setbacks." Guardione's wall ran in an L-shape in front of his house, along the edges of the property bordered by the adjacent streets. The 2003 fences article certainly forbade the construction of "any fence" forward of the "primary setback." The article, however, neither defined "primary setback" nor referred to any other spot in the bylaw where the definition was to be found. The town relied on the 2003 definition article, which laid out "primary setback line" as "[t]he line running parallel … to the street line which includes that part of the building nearest to such street line. In the case of a corner lot, the primary setback requirement shall be observed from all bordering streets." The applicable setback, therefore, moved according to the placement of the house, disadvantaging Guardione, whose house was lopsidedly set on the back lot line. Under this definition, nearly all of his land was forward of the "primary setback," including the area where the wall lay.

However, had one gone to the bylaw article pertaining to "Front Yards and Structure Set-backs" - and one did - logically enough seeking information on setback requirements, one would have found another and contradictory definition. The setback article simply provided that no "structure" (a term that included walls and fences) could be built nearer than 40 feet from the street line. A portion of the setback article specifically referred to the "primary setback line." This article had also been amended in 2003, but not so as to eliminate "fences" from the "structures" governed by the section. The parties had stipulated before trial that Guardione's wall was set back 40 feet or more from each of the bordering streets, and this fact was never challenged. If the setback article rather than the 2003 definition article applied, then why had Guardione ever needed a variance at all?

The bench trial was, predictably, almost entirely devoted to establishing the "uniqueness" of Guardione's property. The town waived any claims that the wall was detrimental to the public good or that its continuance derogated from the purposes of the bylaw in the face of evidence that most of Guardione's neighbors had similar structures and that the two-foot-high wall posed no visual obstacle to traffic. Interestingly, the judge admitted several ZBA decisions granting variances for fences under the 2003 articles for the limited purpose of showing arbitrariness. In these cases, the board, acting under the 2003 articles, had allowed fences for homeowners' recreational uses (a swimming pool, an enclosure for children and dogs) with no showing whatsoever of the required factors. To the disappointment of counsel, the judge did not make any findings regarding these decisions.

The issue regarding interpretation of the term "primary setback" was not fully raised until closing arguments. (Counsel mentioned that she had such an argument to make before closing plaintiff's case in order to avoid waiver; the judge chose to defer it to closing.) The pitch was then made, surprisingly without objection from the town, by which it was clearly unexpected.

Conventional wisdom holds that a board cannot go wrong in denying a variance. The appeal standard is so stringent, calling for a finding of a basis on a "legally untenable ground" or that the decision was "unreasonable, whimsical, capricious or arbitrary," Gulf Oil Corp. v. Board of Appeals of Framingham, 355 Mass. 275 (1969), that no one involved in this case could find more than one Massachusetts appellate decision ordering a board to reverse itself and issue a variance (Lapenas v. Zoning Board of Appeals of Brockton, 352 Mass. 530 (1967)); and in that case, the circumstances - including but not limited to the fact that the subject properties straddled the border between two towns - were so unusual that it is difficult for even the most hardened litigator to argue its application beyond its own facts. See also the very interesting recent Land Court decision in Scalli v. Winberg (Essex Land Court No. 335745-KCL, 2009), where the judge found that the Rockport ZBA denied a variance in an apparent fit of pique caused by the owner's resistance to the board's illegal demand that he create a public easement across the property.

It was therefore a pleasant surprise when Judge Josephson found that Guardione had shown the necessary factors justifying grant of his application and that the board's denial was not reasonable. (The actual order was that the denial was "vacated" and that judgment would enter for the plaintiff, a ruling that did not give Guardione his variance but which certainly seemed to bar the town from taking enforcement action.) The judge made no specific findings on the bylaw argument (memo: next time, give her a brief), but by finding that the wall lay within the "primary setback," she seemed to reject it.

The town noticed its appeal, whereupon Guardione cross-appealed. At oral argument, with Judge Duffly leading the questioning, it was quickly apparent that the panel's primary interest was in the bylaw anomaly. And, indeed, the decision rendered in Guardione v. Town of Longmeadow, 07-P-1780 dismissed the entire issue of the board's decision with a curt "we discern no error in the board's conclusion that the plaintiff failed to satisfy the conditions needed to obtain a variance." As there is no further mention of this issue, the decision provides no guidance on the petitioner's burden; as the board is not required to make specific findings to support the denial of a variance, the ZBA's pronouncement that it found no hardship is in the nature of dicta, and no "rule" that a $10,000 expenditure does not constitute a hardship within the meaning of Chapter 40A should be extrapolated.

The Appeals Court did, however, find that no variance was necessary and that the wall could be constructed as of right, based on Guardione's argument that the setback article, with its 40-foot setback requirement, governed. Writing for the panel, Judge Duffly noted that the board's interpretation of the bylaw is not dispositive, but is subject to the court's review as to whether the board had used the proper standards to ascertain the meaning of the law, citing Britton v. Zoning Board of Appeals of Gloucester, 59 Mass.App.Ct. 68, 73 (2003). The judge then set himself the task of reconciling the Longmeadow bylaw "so as not to render any portion of it meaningless," Adamowicz v. Ipswich, 395 Mass. 757, 760 (1985), no easy job in light of the town's concession that the bylaw was less than clear.

With considerable agility, the judge based his conclusion on a distinction between the terms "primary setback" - the exact language used in the setback article - and "primary setback line" - as used in the 2003 definition article. Because the 2003 fences article used the term "primary setback" and not the term "primary setback line," it was held that the "plain language" of the bylaw made "fences" and other "structures" subject to the 40-foot setback required by the setback article. Thus the two seemingly contradictory terms both survive, although if "structures" are governed by the setback article's "primary setback," it is unclear what remains to be ruled by the 2003 definition article's "primary setback line." Perhaps in reference to this conundrum, the discussion concludes with the somewhat plaintive statement that "[w]e have endeavored to achieve a sensible result, with all parts and words in the bylaw made operative to the extent that task was possible."

Presumably, Longmeadow will clean up its bylaw and this decision will have no lasting precedential value, even for Longmeadow zoning issues. The simple moral is that, in zoning cases, you read the bylaw (however difficult, unpleasant and even dangerous that may be) rather than relying on the letter from the building inspector or the decision of the ZBA or planning board.

Somewhat troubling is the reinforcement of the commonly-held belief that variance denials are bomb-proof. We are no forwarder in understanding what constitutes abuse of discretion in this context. No one is "entitled" to a variance, Bottomly v. Board of Appeals of Yarmouth, 354 Mass. 474, 476 (1968); even when a board finds that the mandatory factors exist, it still must apply its discretion, mindful of the law's exhortation to grant variances sparingly. Still, in the nature of things, there must be times when these largely amateur boards abuse their discretion. This case and the recent Rockport decision suggest that local ZBAs have to go pretty far in order to do so.

*A footnote: in June 2008, counsel and her husband bought a house on a corner in Longmeadow, and put up a fence, in the back yard. Hundreds of feet from the road, really.

The Author

Patricia A. Zak has a general civil law practice in Springfield. She was a law clerk to the Appeals Court and an associate in the late Springfield firm of Cohen Rosenthal. She served for many years on her local planning board, and is a graduate of Western New England College School of Law.

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