Barnhart v. Board of Appeals of Scituate

• Decision Date: 11 January 1962
• Citation: 179 N.E.2d 251,343 Mass. 455
• Parties: Robert A. BARNHART et al. v. BOARD OF APPEALS OF SCITUATE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 251

179 N.E.2d 251

343 Mass. 455

Robert A. BARNHART et al. v. BOARD OF APPEALS OF SCITUATE et al.

Supreme Judicial Court of Massachusetts, Plymouth.

Argued Oct. 5, 1961.

Decided Jan. 11, 1962.

Alfred R. Shrigley, Boston, for plaintiffs.

Paul J. Sullivan, Scituate, for defendant Drummey.

Before WILKINS, C. J., and SPALDING, CUTTER, KIRK and SPIEGEL, JJ.

KIRK, Justice.

This is a bill in equity under G.L. c. 40A, § 21, as amended, by way of an appeal from a decision of the board of appeals of the town of Scituate granting a variance to permit the construction of a ranch style dwelling, designed to accommodate two families in a district restricted to single family residences. ¹

The defendant Drummey, being unable to find a single family dwelling suitable for alteration to meet the requirements of his own family and his wife's father and mother, and owning a lot of land which had an area not less than twice that required for the erection of a single family dwelling in that zone, sought permission to build a two family dwelling on the lot. He submitted to the board a sketch of the proposed house which was to have two separate entrances and no interior entry between the two apartments. The board of appeals unanimously granted 'the requested authorization provided the house be built substantially as per sketch * * * and at least one apartment to be occupied by the owner.' The board's decision also stated that the 'authorization may be granted without substantially derogating from the intent and purpose of the zoning by-laws.'

The plaintiffs, who are owners of adjoining property, appealed to the Superior Court under c. 40A § 21. The judge made findings of material facts pursuant to G.L. c. 214, § 23, and concluded that 'it would be a substantial hardship on applicant were he required to build two separate houses to accommodate his family * * * that the granting of the variance would not substantially derogate from the intent and purpose of the zoning by-laws * * * that * * * the Zoning Board of Appeals acted within its authority and in the exercise of sound discretion.' A decree was entered accordingly, from which this appeal was taken. The evidence is not reported. The exhibits, including the decision of the board, are before us.

The decree must be reversed. An examination of the board's decision shows that it is invalid on its face because of failure to comply with G.L. c. 40A, § 15, subd. 3, as appearing in St.1958, c. 381, which empowers the board to authorize a variance 'where, owing to conditions especially affecting such parcel * * * but not affecting generally the zoning district in which it is located, a literal enforcement of the provisions of the * * * by-law would involve substantial hardship, financial or otherwise to the appellant, and where desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of such * * * by-law, but not otherwise.'

Our decisions have not only emphasized that each one of these legislatively prescribed prerequisites to the granting of a variance must exist in a particular case, Blackman v. Board of Appeals of Barnstable, 334 Mass. 446, 450, 136 N.E.2d 198, Atherton v. Board of Appeals of Bourne, 334 Mass. 451, 454, 136 N.E.2d 201, but they also have established the proposition that a decision of the board of appeals granting a variance cannot stand unless the board finds that each of the prerequisites does exist. Spaulding v. Board of Appeals of Leicester, 334 Mass. 688, 692, 138 N.E.2d 367. See Todd v. Board of Appeals of Yarmouth, 337 Mass. 162, 168, 148 N.E.2d 380, Wrona v. Board of Appeals of Pittsfield, 338 Mass. 87, 90, 153 N.E.2d 631. The Board here made no finding, for example, that a literal enforcement of the provisions of the by-law would involve substantial hardship to Drummey. Because of this omission alone the board's decision was invalid, Spaulding v. Board of Appeals of Leicester, 334 Mass. 688, 692, 138 N.E.2d 367, and, on appeal to the Superior Court under G.L. c. 40A, § 21, should not have been...