10/09/2002 ZONING BOARD OF APPEALS Decisions

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granted by a variance is made necessary "owing to the soil conditions, shape or topography of such land". Lot size clearly has nothing to do with the soil conditions or topography of the land, and the courts have specifically found that lot size is not related to the "shape" A �► of a lot and that shape can not be used as a basis for varying lot size (or frontage either). The Citizen Planner Training Collaborative publication on variances and special B 13 permits distributed at the above mentioned workshop states: "Massachusetts courts have consistently held that a lot's peculiar or unusual shape is unlikely to support the grant of a C1 60 variance.... Equally consistent, has been the court's conclusion that a lot lacking sufficient area does not justify the grant of a variance under this Required Finding" (that C of lot shape). For example, in the 1989 Mass. Court of Appeals case, Mitchell v. Board of Appeals of Revere, the court's decision stated: ':.. the hardship arises solely from the fact that the lot is too small to qualify as a buildable lot under the zoning ordinance or to achieve exemption under the grandfather clauses applicable to lots created before zoning. In these circumstances s. 10 give the board of appeal no authority to grant a variance." ! Based on consistent rulings in the courts, neither the 6 proposed lot size variances on Lettie Lane nor the Prendergast lot size variance request can be legally justified. In addition to the impossibility of a legal lot size variance on the Lettie Lane lots, with regard to Map 36, Blocks 47 E and F, the majority of both parcels lies in the C-2 commercial district, within which minimum lot size is 40,000 square feet and, more importantly, no single family residences are allowed per Section 174-25 of the Zoning By-law. Section 174-11 of the Zoning By-law states that "If no portion of the lot meets the minimum lot size requirement of the district in which it lies, the entire lot shall be governed by those regulations which apply to the largest portion of the lot." Therefore, the zoning regulations applicable to these lots are those for the C-2 commercial district. As you know, the Mashpee Zoning Board of Appeals, under the terms of MGL Ch. 40A, Section 10 and our Zoning By-law, which contains no provision authorizing "use variances", has no authority to grant such a "use variance", and therefore no authority to grant a variance allowing a single family house on either of these two lots. With regard to all 6 of the lots in question, all were under the same ownership, that of Thomas R. Saunders, along with the adjacent 6.12 acre parcel shown as Assessors' Map 36, Block 47, when they became non-conforming with regard to lot size in 1972 when minimum lot size in the area increased to 22,500 square feet. They were still in common ownership when any statutory "grandfathering" zoning freeze expired in 1977 as well as on February 11, 1985 when minimum lot size in the area increased to 40,000 square feet, and on May 9, 1988 when minimum lot size in the area increased to 80,000 square feet. Only after having been non-conforming lots for sixteen years were they "checkerboarded" by the current owners on August 17, 1988. This checkerboarding was clearly a speculative real estate venture and bears no relation to the protection for innocent lot buyers intended by the Zoning Act's "grandfather' clause. •Page 2 i