Commonwealth of Massachusetts County of Suffolk

The Superior Court

CIVIL DOCKET# SUCV2006-04842

Marcia BLaden, E Molly Laden, Jonathan S Dietz, Anne J Miller,

Wong Ee Win Kwok,

John M Flaherty (As Amended), James P Keady (As Amended), Thomas A O'Donohoe (As Amended) vs

Christine Araujo, member, Angelo Buonopane, member, Peter Chin, member,

Benito Tauro, member, Michael Monahan, member, Beth Worell, member,

Robert Shortsleeve, member, Carlo Tramontozzi

JUDGMENT

This action came on before the Court, John C. Cratsley, J., presiding, and upon consideration thereof,

It is ORDERED and ADJUDGED:

that the decision of the City of Boston Board of Appeal is ANNULLED.

October 26, 2009

Michael Joseph Donovan Clerk Magistrate

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COMMON\VEALTH OF MASSACHUSETTS

SUFFOLK, ss.

SUPERIOR COURT CIVIL ACTION NO. 06-4842-D

MARCIE B. LADEN & others!

vs.

CHRISTINE ARAUJO, as member of City of Boston Board of Appeal, & others/

FINDINGS OF FACT, RULINGS OF LAW, AND ORDER FOR JUDGMENT

Pursuant to the Boston Zoning Enabling Act, the plaintiffs appeal a decision by the

defendants, members of the City of Boston Board of Appeal ("Board"), granting three zoning

variances to defendant Carlo Tramontozzi ("Tramontozzi"). The Court, in the company of

counsel, took a view of the subject property and held an evidentiary hearing on the matter. For

BACKGROUND

the reasons discussed below,judgment for the plaintiffs shall enter, and the Board's decision is

vacated.

The Court held a jury-waived trial on March 19,20,23, and 24,2009. Based on the

evidence adduced at trial, including the testimony of various witnesses and exhibits admitted, the

Court makes the following findings of fact:

Tramontozzi is the owner of a vacant parcel of land located at 63 Tremont Street in

Brighton, Massachusetts ("subject property") within an area known as the Presentation Hill

1 E. Molly Laden, Jonathan S. Dietz, Anne J. Miller, Wong Ee Win Kwok (who, at trial, went by the name of Michelle Kwok), and James P. Keady.

2 Angelo Buonopane, Peter Chin, Benito Tauro, Michael Monahan, Beth Worell, and Robert Shortsleeve in their capacity as members of the City of Boston Board of Appeal; and Carlo Tramontozzi.

neighborhood.' The parcel is 14,759 square feet in area and is located in a one-to-two family

residential subdistrict under the Boston Zoning Code ("Code").4 The parcel is an undeveloped

plot of land surrounded by the rear, or backyard area, of the plaintiffs' properties and is nearly

landlocked except for a narrow entryway leading to Tremont Street. Because of the unusual

shape and situation of the lot, it is aptly described as a "keyhole lot."

Tramontozzi's first application for a permit to the Inspectional Services Department to

construct a seven-unit apartment building with underground parking for fourteen vehicles was

denied. Seeking the necessary variances for his proposed development, Tramontozzi appealed

the denial of his application to the Board. Prior to the hearing, Tramontozzi revised his

development plan to instead construct a five, two-bedroom unit apartment building, three stories

and 34 feet high with a frontage of 30 feet, with nine off-street, above-ground parking spaces;

four of the units were designed to have outdoor patios and the fifth unit an outdoor roof deck.'

2

Within the particular zoning subdistrict of the subject property, however, the Code forbids multi-

family uses and mandates that buildings be no higher than 35 feet and 2 ~ stories and have a

minimum frontage of 50 feet." On September 26, 2006, Tramontozzi appeared before the Board

for a public hearing on his variance application and presented his revised development plan.

Following the hearing, the Board granted Tramontozzi three variances for excessive height,

3 Tramontozzi also owns 664 Washington Street, which contains a two-family home in which he resides and also a three-unit, residential carriage house ("Carriage House"), which is rented to three tenants. This property is adjacent to the subject property on 63 Tremont Street. In addition, Tramontozzi owns a two-family residence at 15 Tip Top Street.

4 The Code also allows includes other uses immaterial to this matter. All uses not expressly or conditionally allowed are forbidden under the Code. See Code, Art. 51, § 8, Tables A-D.

5 The five-unit building will be constructed over 6,575 square feet of building area, resulting in a Floor Area Ratio ("FAR") of .45, which is smaller than the FAR of .60 maximum under the Code. See Code, Art. 51, Table D . FAR is defined as "the ratio of gross floor area of a structure to the total area of the lot." See Code, Art. 2A-l (definitions applicable in neighborhood districts).

6 See Code, Art. 51, § 8, Tables A-D.

inadequate frontage, and multi-family use. In response, the plaintiffs filed this action challenging

the Board's decision.

The Presentation Hill neighborhood is generally comprised of one and two family homes,

though adjacent to Tramontozzi's proposed development are two six-unit, residential buildings

flanking the entryway to the keyhole 10t.7 The plaintiffs are landowners whose properties

surround Tramontozzi's lot. At trial, they testified as to the nature of the injuries they believed

would result should Tramontozzi be permitted to construct the five-unit condominium complex

Plaintiffs Marcie Laden ("Marcie") and E. Molly Laden ("Molly") co-own and have

with off-street parking."

resided at 9-11 Tip Top Street for over twenty years. Their property directly abuts the

Tramontozzi lot, and their home is a little over 100 feet from the proposed building. Marcie

testified that she has numerous concerns about the increased population density resulting from

the development which she claimed would negatively impact traffic, parking, exhaust, noise,

privacy, and the value of her home. The bedrooms of her home are located in the rear and she

stated that there would be an increase in noise from (1) the coming and going of residents and

3

visitors as well as from individuals utilizing the roof deck and patios, and (2) the provision of

various delivery, trash removal, and plowing services to the proposed development. She

explained that she was already able to hear noise, music, and conversation from the tenants living

at the three-family Carriage House owned by Tramontozzi at 664 Washington Street and

expressed concern that the issues she has had with noise and lights shining from the Carriage

House onto her property would be exacerbated by the development. While Marcie conceded that

7 Unlike the proposed development, these six-unit buildings have no roof decks or patios, and they provide no offstreet parking.

8 Although he did not testify at trial, John P. Keady's deposition testimony regarding his standing in this matter is admitted into evidence.

the nine off-street parking spaces in the development would add parking to the neighborhood, she

worried that the curb cut needed for the entryway would decrease two to three spaces of off-street

parking on Tremont Street and that visitors to the proposed development would exacerbate issues

with limited off-street parking available in the neighborhood." Marcie's sister, Molly, offered

essentially the same testimony regarding the impact of the Tramontozzi development.

Wong Ee Win Kwok ("Kwok") owns and has resided in the two-family home on 660-662

Washington Street since October 2005. Although Kwok does not appear to be a direct abutter,

her home is about 150 feet from the proposed building and her property line is about 60 feet from

the property line of the subject development. At trial, Kwok expressed her concerns that the

proposed development would negatively impact parking in the neighborhood. She also stated

that the development would result in lights shining onto her lot from the headlights of cars

parking in the spaces on the development, and that the increase in cars would result in a

diminution of air quality due to increased exhaust output. Because of the increase in people

coming and going, Kwok testified that there would be a decrease in the level of privacy she

4

currently enjoys and that the increased human traffic could negatively affect safety, since there

would be more strangers coming into the area. Additionally, with more people living in the

proposed development, Kwok submitted, there would be more noise resulting from the cars, car

alarms, and from people talking. Kwok maintained that she experiences some of these

disturbances from the Carriage House and expected that they would worsen with "the addition of a

five-unit residential building.

9 She also stated that people tended to seek parking on Tip Top Street when parking was unavailable on Tremont or Washington Streets.

Anne J. Miller ("Miller") owns and has resided in a single-family home at 668 Washington Street since August 2005. Her property does not directly abut the subject property, however her home is about 130 feet away from the proposed building on a diagonal and the view from her home to the development is partially obstructed by the Carriage House. Miller stated her belief that the development would increase the density of people living behind her home, which would decrease her privacy, increase noise, possibly pose a threat to her safety from possible intruders, and reduce her property's value. She also voiced her concerns that on-street parking would be-diminished on her street and on Tip Top and Tremont Streets, especially with the added parking that visitors to the development might require. Miller added that she already heard music, voices, and other noise from the tenants in the Carriage House. She gave this testimony in support of her view that she would have similar issues due to noise and lack of privacy with the two patios on the proposed building facing her property, despite the fact that they would be situated at ground level. In particular, Miller stated that the roof deck on the proposed building would be problematic for her, since it overlooked her property and since the large size of the roof deck could lend itself to use for keg parties.

Jonathan S. Dietz ("Dietz") owns and has resided in a single-family home at 19 Tip Top Street since May 2002. He is a direct abutter to the subject property and his home is approximately 70 feet from the proposed building. Dietz testified that the parking area for the proposed development will be adjacent to his property and that parking for about five cars will be situated directly behind the fence in his backyard about 25 feet from his residence, although due to a retaining wall the parking will be below the grade of his backyard. Dietz explained that the proximity of the parked cars causes him to be concerned with noise from the cars - from car

5

alarms, car doors opening and closing, and car motors. He also stated that he was concerned that car exhaust might exacerbate his son's asthma. Noise also from the development's patios and rood deck, Dietz asserted, would also be problematic for him. In addition, Dietz worried that his safety and privacy would be affected by the coming and going of various individuals from the parking area and also from individuals peering out of the proposed building's windows facing his home and yard. He also stated that lights on the proposed building might shine on his property, as occurs from the lights on the Carriage House which is about 120 feet away from his home.

James P. Keady ("Keady") owns, but does not reside in, a two-family home on 21-23 Tip Top Street. Like Dietz, Keady is a direct abutter to the development and his home is approximately 64 feet to the proposed building. Keady expressed concerns related to parking, emergency access to the area, the number of individuals the proposed development would bring in and the noise they would create, and the increased traffic. He also stated that he believed there were too many units in the proposed building.

While some of the plaintiffs expressed a concern that the proposed development would decrease their property values, two real estate appraisal experts, Eric Klein ("Klein") and John Bowman ("Bowman"), actually testified on this issue. On behalf of the plaintiffs, Klein expressed his opinion that allowing construction of the proposed development would result in a 5-10 % reduction in the plaintiffs' property values. Klein reached this conclusion utilizing a sales comparison approach, which he stated was almost exclusively used by banks underwriting asset values, and for valuing collateral for loans, refinances, and purchases, among other things. Klein explained that utilizing the sales comparison approach involved conducting an external walkthrough and inspection of the site as well as examining comparable properties that have

6

been sold. In addition, Klein utilized various "externalities" - i.e., factors affecting a property's marketability such as density, parking, traffic, noise, open space, zoning requirements, exisiting permits and variances, etc. - to determine their impact on property value. Klein admitted that none of the comparables he used involved structures facing an empty lot, however he explained that he was not able to do so due to the limited availability of open lots at the time he did his appraisals. Furthermore, Klein reiterated that he concluded that the proposed development would have a negative impact on the value of the plaintiffs' properties due to "the heavy concentration of population to be placed on a small lot in an already congested area." (Klein Aff., par. 7.)

Testifying for the defendants, Bowman criticized the sales comparison method used by Klein. According to Bowman, Klein should have used a before-and-after approach, used in "imminent [sic] domain takings," which would have required an appraisal of the plaintiffs' property befor~ construction of the project and an appraisal after construction of the project with the difference in value between the two appraisals showing the impact of the project's construction on the value of the plaintiffs' properties. After reviewing the plaintiffs properties and plans, Bowman stated that he believed it would be "doubtful" that there would be any diminution in value resulting from the proposed development, yet Bowman did not reach this conclusion by conducting his own appraisal. Finally, Bowman described the neighborhood as being "already pretty dense ... [noting that] there's a lot of traffic there, [] that the structures on the block were not all two-family structures" and that there are one-, two-, three-, and six-family structures on the block.

7

Tramontozzi, owner of the subject property, also testified at trial. He stated that he had his architect, William Paquette ("Paquette"), only draw up plans for a seven, six, and five unit building and admitted that no plans were drawn up for a building of lower occupancy. While Tramontozzi stated that he priced out the cost for the development of a two-family home on the subject property, there was no testimony or documentary evidence submitted as to the cost of developing a two-family home on the lot. Tramontozzi explained that he sought variances for the proposed five-unit building because the increased cost of constructing the proposed development on the slope constituted a hardship, but no financial hardship evidence was submitted as what that increase would be.

Tramontozzi's son, Kyle Tramontozzi ("Kyle"), also testified at trial. He described the topography as being an irregular slope going from west to east and north to south with the north to south slope transitioning from very severe to gradual incline. Kyle admitted that he had on occasion complained to the plaintiffs about their dogs barking and complained to Kwok about her tenant making noise and leaving cans, bottles, and cigarettes around. He also stated that he was bothered by certain of the plaintiffs' children because they sometimes trespassed onto his land when playing.

William Paquette, Tramontozzi's architect, also testified. He stated that he drew up various plans for Tramontozzi for the subject property, starting with a seven-unit plan, then a sixunit plan, and finally a five-unit plan. He explained that the major challenge to the construction of the development was the excavation that would be required, since the sloped topography of the lot required excavation for the parking lot area and access drive into the site and required construction of retaining walls. He speculated, generally, that the excavation could add 10% to

8

the cost of a project, though he did not testify as to the' increase in cost to Tramontozzi's project in particular. In addition, he admitted that the presence of the existing two six-unit buildings resulted in a denser environment. Although Paquette did express his belief that the keyhole shape of the subject property was unique, he also stated that the land of the subject property and the surrounding properties were sloped. Finally, Paquette stated that the FAR of the proposed development, .45, was smaller than that of certain surrounding properties, some of which had a FAR figure greater than the maximum of .60 allowed under the Code.

DISCUSSION

Standing

The Boston Zoning Enabling Act, St. 1956, c. 665, § 11 (Boston Zoning Act), authorizes any "person aggrieved" by an action of the Zoning Board to challenge it by an action in the Superior Court. The rules governing standing are the same under the Boston Zoning Act as they are under the Massachusetts Zoning Act, G. L. c. 40A. See Sherrill House, Inc. v. Board of Appeal of Boston, 19 Mass. App. Ct. 274,275 (1985), cert. denied, 394 Mass. 1103 (1985).

Under c. 40A, § 17, a person has standing ifhe or she is a "person aggrieved" by certain zoning decisions. A plaintiff is considered a "person aggrieved" if it asserts "a plausible claim of a definite violation of a private right, a private property interest, or a private legal interest." Harvard Sq. Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491,492-493 (1989). The harm the plaintiff alleges must be within the scope and concern of the zoning regulation. See Circle Lounge & Grille, Inc. v. Board of Appeal of Boston, 324 Mass. 427 (1949); Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20, 27-28 (2006). The injury to these rights must also be special and different from the concerns of the rest of the

9

community. See Planning Bd. of Hingham v. Hingham Campus, LLC, 438 Mass. 364, 369 (2003). Although the injury must be more than speculative, "the term 'person aggrieved' should not be read narrowly." Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719, 721 (1996) (citations omitted).

A direct abutter and an abutter to an abutter within 300 feet of the subject property are rebuttably presumed to be "persons aggrieved." Choate v. Zoning Bd. of Appeals, 67 Mass. App. Ct. 376, 381 (2006) (citations omitted). "[A]n abutter is presumed to have standing until the defendant comes forward with evidence to contradict that presumption." Standerwick, 447 Mass. at 34-35. Once the presumption is rebutted, the burden rests with the plaintiff to "put forth credible evidence to substantiate his allegations." Marashlian, 421 Mass. at 721 (citation omitted). "Evidence is 'credible' if it 'provide[ s] specific factual support for each of the claims of particularized injury the plaintiff has made ... [and is] of a type on which a reasonable person could rely to conclude that the claimed injury likely will flow from the board's action." Central St. v. Zoning Bd. of App. of Hudson, 69 Mass. App. Ct. 487, 492 (2007), quoting Butler v. Waltham, 63 Mass. App. Ct. 435, 441 (2005). The court, then, must decide the jurisdictional issue "on all the evidence with no benefit to the plaintiffs from the presumption." Standerwick, 447 Mass. at 33, quoting Barvenik v. Aldermen of Newton, 33 Mass. App. Ct. 129, 131 (1992).

As abutters or abutters to abutters within 300 feet of the subject lot, the plaintiffs are presumed to be persons aggrieved. See Choate, 67 Mass. App. Ct. at 381. However, the defendants, in their cross-examination of the plaintiffs, successfully rebutted the presumption of standing by showing that at least some of the plaintiffs' concerns were either speculative or neither special nor different from those of the rest of the community. See Cohen v. Zoning Bd.

10

of Appeals of Plymouth, 35 Mass. App. Ct. 619, 622 (1993) (defendant's submission of transcripts of plaintiffs' depositions rebutted the presumption of standing where "none of the deponents, in answer to specific questions, was able to articulate whether or how the plaintiffs would be injured by the board's decision").

This Court finds that safety concerns related to possible intruders and compromised access by emergency assistance services to be highly speculative and lacking grounding in specific factual support. Similarly, this Court finds the plaintiffs' concerns regarding decreased on-street parking availability and increased traffic and exhaust to be theoretical in nature. Although the curb cut may remove about two to three on-street parking spaces on Tremont Street, the development will add approximately nine parking spaces for use by the development's residents and visitors. The plaintiffs' testimony failed to credibly demonstrate that they in particular, in contrast to the community in general, will be harmed by decreased parking and increased traffic and exhaust purportedly resulting from the proposed development and curb cuts. Furthermore, because none of the plaintiffs could testify with any specificity as to the kinds of lights used for the development, either on the building itself or in or around the parking area, and whether or how these would shine onto their property, this alleged harm is also inadequate to provide them with standing. Since the defendants' adequately rebutted the plaintiffs' standing as to these alleged harms and since the plaintiffs have failed to put forth any credible evidence substantiating these allegations, standing on these grounds cannot be maintained.

Nevertheless, the plaintiffs need only show injury to a single protected interest particular to them to maintain standing. See Standerwick, 64 Mass. App. Ct. at 345 n.16 (declining to address all standing grounds asserted by the plaintiffs because at least one was sufficient to

11

confer standing). Among the interests protected by the Code are the prevention of overcrowding

of land, the conservation the value of land and buildings, and the undue concentration of

population. See Code, Art. 1, § 1-2. More specifically, the Code makes clear that "[t]he goals

and objectives of this Article and the Allston-Brighton Neighborhood Plan are to provide

adequate density controls that protect residential areas and direct growth to areas where it can be

accommodated." Code, Art. 51, § 1. Moreover, the Code provides that "Two-family Residential

Subdistricts are established to preserve, maintain, and promote low density two-family

neighborhoods ... [and] to provide for new infill construction appropriate to the existing fabric."

Code, Art. 51, § 7. With regard to the plaintiffs' allegations of increased population density,

noise, and decreased privacy, the Court finds sufficient grounds on which the plaintiffs may

maintain standing in this action, as their allegations as to these harms were not sufficiently

rebutted either through cross-examination or by any affirmative evidence submitted by the

Even assuming that the defendants had rebutted these allegations to some degree, the

defendants. Accordingly, the plaintiffs' presumption of standing on these grounds endures.

Court finds the bulk of the plaintiffs' testimony of harm to these protected interests credible and

. .".

sufficient to withstand dismissal. Extrapolating from their experience with the Carriage House,

all of the plaintiffs credibly testified that the addition of a five-unit residential building with

12

outdoor patios and a roof deck and parking for nine cars will result in an increase in the noise

level and that the noise will particularly affect them because their properties surround the

proposed development due to peculiar situation of the keyhole lot. While none of the plaintiffs

could predict exactly who would move into the proposed building (either the exact number or

kinds of individuals be they senior citizens, professionals, or students, etc.), it is a matter of

common sense that a building providing housing for five, two-bedroom apartments will draw a

number of people into the area, whose presence and comings and goings either on foot or by

vehicle will increase the level of noise particularly affecting the plaintiffs. And since all this

activity is to take place just beyond the plaintiffs' backyards, their privacy interests too will be

implicated to the extent that whatever privacy they currently enjoy will be diminished by the

amplification of these activities. See Bertrand, 58 Mass. App. Ct at 912 (concluding that

concerns about increased noise and decreased privacy that would result from the construction of

two single-family homes behind the plaintiffs' homes were sufficient for standing); see also Van

Buren v. South Boston New Hous., 2005 WL 332815 (Mass. Super. Feb. 4, 2004) (Sikora, J.)

(finding standing based on increased noise and loss of privacy).

The plaintiffs' noise and privacy concerns also qualify as concerns regarding population

density. See Van Buren, at * 13-*14 (finding that the plaintiffs' interests in increased noise and

13

loss of privacy, among others, "qualify as concerns of density or excessive density" under the

Boston Zoning Code). However, beyond their testimony regarding the negative impact of noise

and privacy of the proposed development, the plaintiffs' concerns regarding increased population

density is supported by their testimony, Paquette's, Klein's, and Bowman's testimony

demonstrating the already dense and populous condition of the neighborhood, especially given

the presence of two six-unit residential buildings within the two-family subdistrict not to mention

Tramontozzi's three-unit Carriage House residence. 10 See Sheppard v. Zoning Bd. of Appeal of

Boston, 74 Mass. App. Ct. 8, 11-12 (2009) ("An abutter has a well-recognized legal interest in

10 The defendants appear to allude to the proposed development's FAR value of .45, below the Code maximum of .60 allowed, as supporting a finding that the development will not add to the neighborhood's density. To the extent that they so argue, this Court disagrees, as FAR is a measure not of population density but building density. While FAR may be a factor to be considered in factoring the overall density of a neighborhood, it alone is not dispositive of the issue, especially where multi-use housing is also a relevant indicator of population density.

'preventing further construction in a district in which the existing development is already more

Taken together, this Court finds the harms concerning noise, privacy, and population

dense than the applicable zoning regulations allow. "').

density alleged by the plaintiffs adequate to grant them standing in this action. I I The Court finds

that the plaintiffs established at trial, based on their personal knowledge, that they would suffer

injury that is special and different from the concerns of the rest of the community.

As the Court found previously in this litigation, the nature of the plaintiffs' concerns are

more properly considered "matter[s] of common sense rather than expertise." Choate, 67 Mass.

App. Ct. at 385.12 Recognizing that the existence of standing may be considered by the court at

any stage of the case because it is an essential prerequisite to judicial review under G.L. c. 40A, §

17, the Court has again revisited standing at the defendants' behest and, again, has concluded that

the plaintiffs have standing to maintain this action. See Nickerson v. Zoning Bd. of Appeals of

14

Raynham, 53 Mass.App.Ct. 680, 681 n.2 (2002).

Accordingly, the Court will not dismiss this matter for lack of standing.

Merits of the Variances

The plaintiffs concede that the frontage variance is necessary for the reasonable use of the

subject property due to the shape of the keyhole lot. They dispute, however, that the variances

for height and multi-family use were properly granted by the Board.

In reviewing a zoning board's decision, the Court is required to hear the matter de novo

and make findings of fact independent of any findings of the board. See Guiragossian v. Board of

11 The Court declines to address the merits the plaintiffs' contentions regarding diminution of value of their properties as a basis for standing, since I find that there are at least three valid bases sufficient to confer standing. 12 Earlier in this litigation, this Court, having determined that the plaintiffs' presumption of standing was not

rebutted by the defendants, denied summary judgment for the defendants on the issue of standing.

Appeals of Watertown, 2 I Mass. App. Ct. 111, 114 (1985). The decision of the board has no

evidentiary weight on appeal, and the Court determines the validity of the decision based on the

facts found by the Court. See Josephs v. Board of Appeals of Brookline, 362 Mass. 290,295

(1972); Needham Pastoral Counseling Ctr., Inc. v. Board of Appeals of Needham, 29 Mass.

App. Ct. 31, 32 (1990). The Court "may uphold the variance only if it can be expressly found

that the statutory prerequisites have been met." Id., citing Josephs" 362 Mass. at 292. "[T]he

Under the Boston Zoning Act, "a variance becomes appropriate only where owing to

burden rests upon the person seeking a variance and the board ordering a variance to produce

evidence at the hearing in the Superior Court that the statutory prerequisites have been met and

that the variance is justified." Dion v. Board of Appeals of Waltham, 344 Mass. 547,555-556

(1962).

conditions especially affecting [the] parcel or [the] building, but not affecting generally the

15

zoning district in which it is located, a literal enforcement of the provision of [the] zoning

regulation would involve substantial hardship to the appellant and where desirable relief may be

granted without substantial detriment to the public good and without nullifying or substantially

derogating from the intent and purpose of such zoning regulation, but not otherwise." Section 9.

Furthermore, the Code requires that the Board "shall grant a variance only if it finds that all of

the following conditions are met." Code, Art. 7, § 7-3. Two of the required conditions include

(a) That there are special circumstances or conditions, fully described in the fmdings, applying to the land or structure for which the variance is sought (such as, but not limited to, the exceptional narrowness, shallowness, or shape of the lot, or exceptional topographical conditions thereof) which circumstances or conditions are peculiar to such land or structure but not the neighborhood, and that said circumstances or conditions are such that the application of the provisions of this code would deprive the appellant ofthe reasonable use of such land or structure;

(b) That, for reasons of practical difficulty and demonstrable and substantial hardship fully described in the findings, the granting of a variance is necessary for the reasonable use of the land or structure and that the variance as granted by the Board is the minimum variance that will accomplish this purpose;

Id. Because the requirements for the grant of a variance are conjunctive, not disjunctive, a failure

to establish anyone of them is fatal. See Blackman v. Board of Appeals of Barnstable. 334

Mass. 446, 450 (1956).

On the facts found by this Court, the variances for height and multi-family use found by

the Board are invalid because the two requirements set forth above were not satisfied. First, I

find that there was no evidence as to the existence of any special circumstances or conditions of

the subject property justifying the variances. The evidence at trial shows that the plot, while

peculiar in its keyhole shape, was not peculiar, special, or unique in its topography since the

sloping of the subject property was common to the neighborhood. Second, there was no

evidence of practical difficulty and demonstrable and substantial hardship to Tramontozzi

required for the proposed development would increase its cost, he only testified that, in general,

justifying the construction of a five-unit building. While Paquette stated that the excavation

16

excavation could add 10% to the cost of a project and failed to state how much the cost of

excavation would add to Tramontozzi's project in particular. Similarly, Tramontozzi himself

testified that there would be an increased cost to constructing the proposed development on the

slope, yet he failed to submit any detail whatsoever concerning the increased cost.

Not only was there no detailed evidence as to the alleged increased costs associated with

construction ofTramontozzi's development on a slope, but even if there had been or even if the

testimony at trial was deemed sufficient, there was no evidence as to how any such increase in

cost created a demonstrable and substantial hardship depriving Tramontozzi of the reasonable

use of his land. Under G. L. c. 40A, § 10, "substantial hardship, financial or otherwise" is found

only where under the unique circumstances it is "not economically feasible or likely that the

locus would be developed in the future for a use permitted by the zoning ordinance or by-law.':"

Cavanaugh v. DiFlumera, 9 Mass. App. Ct. 396, 402 (1980). See also 39 Joy St. Condominium

Ass'n v. Board of Appeal of Boston, 426 Mass. 485,490 (1998). Also, as cited by the plaintiffs,

"an inability to maximize the theoretical potential of a parcel of land is not a hardship within the

meaning of the zoning law[,] ... [and] [fjinancial hardship to the owner alone is not sufficient to

establish 'substantial hardship' and thereby justify a variance." Steamboat Realty, LLC v.

Zoning Bd. Of Appeal of Boston, 70 Mass. App. Ct. 601, 604 (2007) (citations omitted). Under

the facts found by this Court after a de novo trial, I conclude that the defendants have failed to

establish the statutory requirements of special circumstances and substantial hardship necessary

to support the grant of the variances for height and multi-family use.

ORDER

Tramontozzi variances for height and multi-family use, is ANNULLED.

For the foregoing reasons, it is hereby ORDERED that the Board's decision, granting

<'c'ta",Dated:t.', 2009

13 The Court notes that the Code does not expressly recognize financial hardship, whereas G. L. c. 40A, § 10 does. Nevertheless, even though G. L. c. 40A expressly recognizes financial hardship, the case law does not support the granting of a variance exclusively on this ground.

17

Commonwealth of Massachusetts County of Suffolk

The Superior Court

CIVIL DOCKET#: SUCV2006-04842-D

RE: Laden et al v Araujo, member et al

TO: David R Jackowitz, Esquire Shaevel & Krems

141 Tremont Street Boston, MA 02111

NOTICE OF DOCKET ENTRY

You are hereby notified that on 10/26/2009 the following entry was made on the above referenced docket:

JUDGMENT That the decision of the City of Boston Board of Appeal is ANNULLED entered on docket pursuant to Mas R Civ p 58 (a) and notice sent to parties pursuant to Mass R Civ P 77(d)

Dated at Boston, Massachusetts this 26th day of October, 2009.

BY: Jane M. Mahon Assistant Clerk

Michael Joseph Donovan, Clerk of the Courts

Telephone: 617-788-8110

Disabled individuals who need handicap accommodations should contact the Administrative Office of the Superior Court at (617) 788-8130

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