Benjamin v. Board of Appeals of Swansea

• Decision Date: 07 January 1959
• Citation: 338 Mass. 257,154 N.E.2d 913
• Parties: Henry J. BENJAMIN et al. v. BOARD OF APPEALS OF SWANSEA et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 913

154 N.E.2d 913

338 Mass. 257

Henry J. BENJAMIN et al. v. BOARD OF APPEALS OF SWANSEA et al.

Supreme Judicial Court of Massachusetts, Bristol.

Argued Nov. 5, 1958.

Decided Jan. 7, 1959.

John F. O'Donoghue, Fall River, for petitioners.

Milton A. Westgate, Town Counsel, Fall River, and Harold K. Hudner, Fall River, for respondent.

Before WILKINS, C. J., and SPALDING, WILLIAMS, COUNIHAN and WHITTEMORE, JJ.

SPALDING, Justice.

This is a bill in equity under G.L. c. 40A, § 21 inserted by St.1954, c. 368, § 2, by way of appeal from a decision of the board of appeals granting a variance to Shirley R. Angus to establish a restaurant on her property. The bill is brought by the owners of property in the neighborhood affected by the proposed variance. Shirley R. Angus was allowed to intervene as a party defendant. The judge made findings of material facts. A decree was entered that the decision of the board of appeals granting the variance, subject to certain limitations, be 'confirmed' and that the requested variance be 'granted' subject to these limitations. ¹ The plaintiffs appealed. The evidence is reported.

We summarize the facts as follows: Shirley R. Angus (the applicant for the variance in question) and her husband purchased on May 22, 1950, approximately fourteen acres of land situated on the northwesterly corner of Wilbur Avenue (sometimes referred to herein as Route 103) and Cedar Avenue in the town of Swansea. Shortly thereafter Mrs. Angus and her husband constructed on the northerly portion of this property a combination dog kennel and residence where they raised dogs for sale. About the same time (1950) Mrs. Angus built on another part of this lot the building for which she now seeks a variance. This building is constructed in the form of a T. The front or horizontal portion of the T was designed as a residence and was used as such by Mrs. Angus and her husband. The vertical portion of the T, which represents the greater part of the building, was designed for the manufacture of perfume and was used as such down to sometime in 1957, when that use was discontinued because of the death of Mr. Angus. This building was constructed on a concrete slab and has ceilings ten to eleven feet high. The commercial part of the building has windows located high in the wall, near the ceiling. In this part there are rooms for mixing, packaging, storing and selling perfume. The building is attractively designed so that viewed from the front it appears to be a substantial and costly residence. The original cost of this building was $60,000. To 'reconstruct and rearrange' it for residential purposes would be 'impractical and unreasonable because of the nature of the construction' and the cost of doing so would be about $35,000.

At about the time when Mrs. Angus and her husband constructed the buildings mentioned above the Swansea water district constructed a building on the southerly side of Wilbur Avenue (directly opposite the Angus property) which is used for an office, shop, garage and store yard.

During the year 1950 two of the plaintiffs, Eaton and Thompson, built houses two hundred and three hundred feet, respectively, from the locus for which the variance is sought. The other plaintiffs live in the neighborhood, but farther away. With the exception of the Swansea water district office and yard mentioned above, the only other commercial uses in the vicinity of the locus were a hair dressing establishment and a fish and quahaug market, the latter being one thousand feet from the locus. The remainder of the area surrounding the locus for at least a mile was devoted to residential purposes.

In the fall of 1953 the town of Swansea adopted a zoning by-law, under which a major portion of the town, including the locus, was placed in a so called rural and residential district. A few commercial uses of a minor nature are permitted in such a district but these do not include a restaurant.

In September, 1957, Mrs. Angus applied to the board of appeals for a variance so that the combination dwelling and perfume shop could be converted into and used as a restaurant. The board of appeals, after hearing, granted the variance, subject however to certain conditions. These conditions had to do with the layout and appearance of the premises, the sale of intoxicating liquor (which was contemplated), and the portion of the property (about one acre) to which the variance would be applicable.

At the time the variance was applied for, the Commonwealth was widening the road (Route 103) in front of the locus and was constructing a new bridge across Cole's River, a mile distant, in order to facilitate the movement of traffic along this route.

After finding the foregoing facts, the judge found as follows: '[T]he premises in question were constructed for use as a place for the manufacture of perfume and * * * cannot be reasonably converted to the use of a residence required under the zoning by-law.' These premises and nonresidential structures to the north and south of the locus were built before the passage of the by-law. The manufacture of perfume on the locus was no longer feasible because of the death of Mrs. Angus's husband. And there was the added circumstance that the construction of the new bridge and widening of Route 103 tended to make the locus less desirable for residential purposes.

The judge then concluded that to require the locus to be used as a residence would involve substantial hardship to Mrs. Angus especially in view of the type of structure involved, the cost of remodeling it, and the fact that immediate area is nonresidential and was such prior to the adoption of the zoning by-law. The judge further concluded that the granting of the variance could be made without substantial detriment to the public good and without substantially derogating from the intent or purpose of he by-law. This conclusion was reinforced by (1) the substantial distance of neighboring property from the locus, (2)...