In: Proc. In: Mitkov, R. Morris, J. Okumura, M. Miller, G. Rada, R.
Budanitsky, A. Formica, A.
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ENW EndNote. The variance spares the developers this substantial expense.
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In addition to those facts already recited, the trial judge found that the following circumstances give rise to a substantial hardship: 1 the locus "contains an irregular pattern of subsurface soil conditions and materials at varying levels of elevation and a relatively high water table"; 2 these soil conditions "show the locus to be unique as compared to other lots along Beacon Street"; 3 "[a]ny construction on this lot requires extra expenses, amounting to a premium cost, for bracing of the rear slope of the log adjacent to the existing single-family residence. The plaintiffs contend that two prerequisites which are essential to the granting of a variance and which were found by the trial judge to exist have not in fact been established.
First, they claim that there is no evidence to show that the soil conditions affecting the locus did not affect generally the zoning district in which the locus is situated. The record, however, directly contradicts that claim. The results of the boring tests conducted at the site and the testimony of a soil expert, as well as that of one of the developers, Palanjian, who had constructed four buildings within a two mile radius of the locus, fully justify the trial judge's findings that the soil conditions were peculiar to the locus.
Even assuming that the soil expert would have testified on cross-examination. Board of Appeals of Chelmsford, Mass. Planning Bd. Board of Appeals of Watertown, 5 Mass.
Moreover, the finding of substantial hardship is not based on the soil conditions alone. The trial judge took all the circumstances of the locus, the soil conditions, the reverse "L" shape, the grade and the adjacent buildings, into account, and we cannot say that he was in error in finding that these circumstances did not affect the zoning district generally. See Dion v. Board of Appeals of Waltham, Mass. Board of Appeal of Boston, Mass. Board of Appeals of Brookline, Mass.
Compare Bicknell Realty Co. Board of Appeal of Fall River, 2 Mass. The plaintiffs' second contention, that there is no evidence showing that the peculiarities of the locus are the cause of a financial hardship, also fails on the record. These expenses are not personal to the developers but would be experienced by anyone attempting to make a reasonable and permitted use of the locus.
See Sherman v. Board of Appeals of Worcester, Mass. Board of Appeals of. Wareham, Mass. Compare Abbott v. Appleton Nursing Home, Inc. As proposed, the building is set fifteen feet back from the Beacon Street lot line, and balconies will extend three and one-half feet from the building over the yard. The building commissioner had advised the developers that a variance was required. Upon their application for a variance, the board granted the developers a special permit under Section 5.
That section permits the board to reduce the front yard setback requirements but not below the minimum depth of fifteen feet in M districts. The trial judge found, however, that the balconies fell within the exceptions permitted under Section 5. The plaintiffs' contentions before us are that the balconies cannot be permitted under either Section 5.
Thus, they argue, while a variance is necessary, it is unattainable because the developers failed to show any substantial hardship justifying a variance for the construction of the balconies. For that assertion, the plaintiffs seek support from the uncontradicted testimony of the soil expert to the effect that the already excessive premium costs would not be increased further if the building were moved back three and one-half feet more from Beacon Street. Permission to the board under Section 5. See Werner v. Board of Appeals of Harwich. In considering whether a special permit was authorized under Section 5.
Zoning Board of Appeals of Framingham, Mass. Our construction of Section 5. Those which extend "over" the front yard are limited to a depth of two feet. Even though the board lacked the authority to allow the proposed balconies by special permit, we have no occasion to reverse the judgment of the Superior Court and order that the board's decision be annulled.
The more stringent findings necessary to justify the granting of this variance, Kiss v. Board of Appeals of Longmeadow, Mass. Board of Appeals of Fall River, 2 Mass. While the plaintiffs would have us isolate the justification for the height variance from a set-back variance, the board made those findings equally applicable to the proposed balconies, as well as to other proposals not challenged by the plaintiffs, so that the building could be constructed consistent with the intent of the zoning by-law, taking into account all the circumstances particular to the locus, as required by c.
As put by the board: "With but one exception [the height variance], each of the variances set forth in the Building Commissioner's letter of denial were alternatives to the same relief which the Board has granted by special permits.