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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.
