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.