Planning Board of Barnstable v. Board of Appeals of Barnstable

This is an appeal by the plaintiff from a final decree adjudging that the decision of the defendant board granting a zoning variance to permit construction of an apartment building was valid. In his “Findings, Rulings and Order,” the judge stated, inter alla, that “[c]onsidering the totality of ‘circumstances, characteristics and area’ of . . . [the] locus as a whole and not as separate items, . . . [a] literal enforcement of the [z]oning [b]y-[l]aw would involve substantial financial hardship to . . . [the owner of the locus]” and that “[t]be substantial hardship relates both to the land and to . . . [the owner].” The findings of the judge regarding the physical characteristics of the locus and the economic impracticality of using it for residential purposes do not support his conclusion. The fact that a more economical and practical use of the land might be made if it were used for apartment rather than single family purposes does not support the variance. See Sullivan v. Board of Appeals of Belmont, 346 Mass. 81, 84. Garfield v. Board of Appeals of Rockport, 356 Mass. 37, 41. The fact that the owner of the locus may personally suffer financial hardship because he erroneously assumed that the locus was zoned for business, paid $7,000 for it and has not received an offer higher than $2,500 does not result from “conditions especially affecting” his property “but not affecting generally” other land in that zoning district as required by G. L. c. 40A, § 15, as amended through St. 1958, c. 381. Shacka v. Board of Appeals of Chelmsford, 341 Mass. 593, 594. Garfield v. Board of Appeals of Rockport, supra, pp. 40-41. There are no “conditions especially affecting” the locus within the meaning of § 15 as found in Dion v. Board of Appeals of Waltham, 344 Mass. 547, 550-552, and Sherman v. Board of Appeals of Worcester, 354 Mass. 133, 135-136. The final decree is reversed and a new decree is to be entered adjudging that the decision of the board was in excess of its authority and is annulled. So ordered.