16 Mass. App. Ct. 1011 | Mass. App. Ct. | 1983
A variance was sought from the board of zoning appeal of Cambridge (the board) with respect to property at 331-337 Western Avenue. On these premises (over 10,000 square feet of land) stands a two-story eight-unit building. The facts are stated principally on the basis of the board’s decision granting the variance.
A former owner, one Sherwood, had purchased the land and had done some restoration and repairs on the building. He found the expense of bringing the premises up to building code requirements too great for him alone. On this account Sherwood (after the city’s building department had approved the subdivision) decided to divide the building and to sell it as four two-story townhouses.
Thereafter it was discovered that the fire walls between the two-story units failed by about thirty inches to go all the way to the roof. This gap and a minor deficiency in sideyard space resulted in slight violations of the zoning ordinance which would have prevented the subdivision. The board found (1) that the fire walls appeared to be complete when the sales took place and that the vendor (and presumably the purchasers) had been unaware of any vertical gap between the fire walls and the roof; (2) that the variances sought, affecting only these premises, were minimal and that the deficiencies in open space and set back were less than those found in other properties in the immediate neighborhood; and (3) that legal problems would result for the present and former owners of this building if the variances were not granted. There was no showing that any other building in the neighborhood had any such incomplete fire walls (cf. cases collected in Gamache v. Acushnet, 14 Mass. App. Ct. 215, 217 n.6 [1982]) or that any proposed use of, or activity upon, the premises would change or would affect other premises in any way. The board, on March 9,1982, granted the variances to an extent which would permit the building’s subdivision. It imposed the requirement that there be separate water lines and utilities for each townhouse and that the fire walls be completed.
Reeves on March 23, 1982, filed in the Superior Court a complaint in purported reliance on (a) G. L. c. 40A, § 17 (as amended by St. 1978, c. 478, § 32; see minor later amendment by St. 1982, c. 533, § 1), and also (b) G. L. c. “231A and the equitable powers of” the court. The complaint alleges no respect in which the physical use of the premises will be changed by the variances. Reeves’s contention is only that the subdivision of the building into four townhouses and their subsequent sale will make possible four owner-occupied dwellings which, as a consequence, might become freed from the Cambridge rent-control ordinance.
The motions to dismiss all were properly granted.
Judgments affirmed.
The defendant Clark by affidavit averred that he had purchased 335 Western Avenue (where Reeves lived) on May 15, 1981, that Reeves, a tenant, had been served with a notice to quit for nonpayment of rent, and that Reeves owned no property in the neighborhood. Reeves in his brief concedes that he was a tenant.
The complaint purported to combine inappropriately and in confusing fashion a claim for review of the granting of a variance under G. L. c. 40A, § 17, with a request for declaratory relief under G. L. c. 231A, and an effort to obtain equitable rescission of the land transfers. This may have resulted, as to the declaratory relief and rescission claims, in subjecting the complaint to Mass.R.Civ.P. 4, as amended, 385 Mass. 1215 (1982). The complaint appears to have been filed seasonably so far as it arises under c. 40A, § 17.
Authority as to the standing of a tenant with respect to zoning variances is somewhat mixed. As to a prospective purchaser under an oral agreement, made