Amero v. Bd. of Appeal of City of Gloucester

• Citation: 186 N.E. 61,283 Mass. 45
• Parties: AMERO et al. v. BOARD OF APPEAL OF CITY OF GLOUCESTER.
• Decision Date: 23 May 1933
• Court: United States State Supreme Judicial Court of Massachusetts

283 Mass. 45

186 N.E. 61

AMERO et al.

v.BOARD OF APPEAL OF CITY OF GLOUCESTER.

Supreme Judicial Court of Massachusetts, Essex.

May 23, 1933.

Exceptions from Supreme Judicial Court, Essex County.

Petition for certiorari by Mary G. Amero and others against the Board of Appeal of the City of Gloucester to quash a decision of the Board varying zoning ordinance. Writ was denied, and petitioners excepted.

Exceptions overruled.

J. M. Marshall, of Gloucester, for petitioners.

C. W. Wonson, City Sol., of Gloucester, for respondents.

WAIT, Justice.

The petitioners except to rulings made at a hearing upon a petition for certiorari, which prayed that this court quash a decision of the board of appeals constituted under the zoning ordinance of the city of Gloucester. The proceeding sought to be invalidated was begun by petition of one Morse that the board so vary the existing ordinance that he might install a gasoline pump upon premises zoned within a single residence district, and might thus be aided in carrying on an industrial business there. It appeared that before the passage of the ordinance he had carried on the business of renting garages, repairing automobiles and selling gasoline and appurtenances for them upon the premises, using a gasoline pump which did not stand upon his own land. He desired to install a second pump so that he might supply a second kind of gasoline; and to place this second pump upon land of his own. Notices of a public hearing, published in the Gloucester Daily Times, were mailed by the board to the several persons deemed by the board to be affected and to the attorney for the petitioners. Hearings were had. All abutters assented to the grant of the petition. The petitioners, resident in the district, objected, and were heard. On October 29, 1931, the board granted the petition; and, on November 2, 1931, copies of the decision were filed with the city clerk and were mailed to the attorneys of the petitioners and the remonstrants. The decision of the board was unanimous. It recited that hearing was had after three publications of notice in said newspaper and the mailing of notice to the petitioners and ‘to the owners of all property deemed to be affected thereby as they appear on the local tax list.’ It stated that the board found ‘That the petitioner was engaged in an auto rental and repair business in the present location previous to the adoption of the zoning ordinance; that under the provisions of said ordinance he is allowed to continue in said business but cannot increase it; that at the present time he has one pump, that it seems to this Board that it is necessary in catering to the motoring public to have two kinds of gas. In order to do that the petitioner must have an additional pump. The Board finds that this will not necessarily increase his business but will enable him to hold on to his present customers. The Board finds that practically all filling stations or garage repair shops have two kinds of gas.’ It also stated that the abutters residing in the near vicinity offered no objection; that the largest land owner of the vicinity regarded it as an advantage to tenants of his cottages to be enabled to get their supplies and have repairs made in the immediate vicinity. All other abutters upon the street, although represented at the hearing, made no objection. One of the objectors (an appellant) cannot see the premises from her property. Another, who can see them, objected because they were unsightly. The decision concluded: ‘The Board feel that the granting of this petition will not in any way derogate from the intent and purposes of the zoning ordinance but that the refusal of said petition would cause the petitioner unnecessary hardship and that desirable relief may be granted without substantially derogating from the intent and purpose of said ordinance.’ By agreement the return of the board has been extended to include a copy of the notice of petition and hearing and a statement that the petitioner held no license or permit for the sale or storage of gasoline from the municipal council but had acted solely under a permit issued by the inspector of buildings and fire.

G. L. (Ter. Ed.) c. 40, § 27A authorizes a board of appeals to vary the application of any zoning ordinance or by-law in specific cases ‘wherein its enforcement would involve practical difficulty or unnecessary hardship and wherein desirable relief may be granted without substantially derogating from the intent and purpose of such by-law or ordinance, but not otherwise.’ It lays down the procedure to be followed. There must be a written petition addressed to the board, a public hearing notice of which must be mailed to the petitioner and to the owners of all property deemed by the board to be affected as they appear ‘on the most recent local tax list’ and also advertised in a newspaper. The decision must be the unanimous decision of the entire membership of the board. The board must make a detailed record of all its proceedings relative to the petition, which must set forth the reasons for the decision, the vote of all members participating and the absence of a member or his failure to vote. ‘Immediately following the board's final decision’ the record must be filed in the office of the city or town clerk, open to public inspection, and notice of the decision must be ‘mailed forthwith to each party in interest as aforesaid.’ Within fifteen days ‘any person aggrieved * * * whether previously a...