Bicknell Realty Co. v. Board of Appeal of Boston

• Decision Date: 30 December 1953
• Citation: 330 Mass. 676,116 N.E.2d 570
• Parties: BICKNELL REALTY CO. et al. v. BOARD OF APPEAL OF BOSTON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 570

116 N.E.2d 570

330 Mass. 676

BICKNELL REALTY CO. et al. v. BOARD OF APPEAL OF BOSTON et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 7, 1953.

Decided Dec. 30, 1953.

Joseph B. Abrams and Lawrence R. Cohen, Boston, for plaintiffs.

George A. McLaughlin, Boston (Charles M. Goldman, Boston), for defendant Franks.

Before QUA, C. J., and LUMMUS, RONAN, SPALDING and WILLIAMS, JJ.

RONAN, Justice.

This is an appeal from a final decree annulling a decision of the board of appeal of Boston which granted a variance in the application of the zoning law authorizing the defendant Franks to construct a commercial building in a general residential district.

The locus, a vacant lot containing approximately 18,990 square feet, is located upon the northeasterly corner or Park Drive and Peterborough Street. It is bounded on the northerly side by premises used for a gasoline filling station. This station is located on the corner of Park Drive and Boylston Street and its entrance is from the latter street. It was so located and maintained before the zoning law, St.1924, c. 488, became effective. Boylston Street and Peterborough Street are roughly parallel as they run westerly to Park Drive. The filling station and the locus are located in a general residential zone and so is the northerly side of Peterborough Street to the east for about 500 feet where it meets a L-65 (local business and residence) district. This last district runs southerly, across Peterborough Street and to the south of Queensbury Street. A boundary dividing the general residential district from a B-80 (business with buildings not more than 80 feet in height) district runs about half way between the southerly side of Boylston Street and the northerly side of Peterborough Street until it reaches a public alley at the rear boundary of the locus, where it turns at a right angle along the alley way and parallel to a part of the real line of the locus and parallel to the easterly side of the filling station lot to Boylston Street. Easterly from the locus along the northerly side of Peterborough Street is an apartment house, owned by the plaintiff Eilbern Realty Corporation, and containing 100 rooms. The public alley 16 feet wide which we have just mentioned separates the locus from this apartment house. A few other large apartment houses are closely grouped together, occupying all the northerly side of Peterborough Street until the L-65 district is reached. On the southeasterly corner of Park Drive and Peterborough Street is a large brick five story house. It is owned by the plaintiff Bicknell Realty Company. Next to this building and continuing along the southerly side of Peterborough Street is a vacant lot and then another apartment house until the L-65 district is reached. All the area south from the B-80 district line between Boylston Street and Peterborough Street to beyond Queensbury Street and between the L-65 zone and Park Drive is in a residential district. This district continues far south of Queensbury Street and south of said L-65 district. A portion of this residential district is located opposite the front of the locus across Park Drive and along the Fenway.

The plan and photographs show that the locus occupies a conspicuous position with reference to the Fenway, and is in plain view of some of the various apartment properties on Peterborough Street. It is contemplated to erect a building containing three stores including a clothing store which will be open every week day evening until nine o'clock. The entrances to the proposed building will be from Peterborough Street, which will be the only direct entrance of any commercial building on that part of Peterborough Street with which we are concerned.

The board is authorized to grant a change in the application of the zoning law in respect to a particular parcel of land '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 this act would involve substantial hardship to the appellant, and where desirable relief may be granted without substantial detriment to the public good and without substantially derogating from the intent and purpose of this act, but not otherwise.' St.1924, c. 488, § 19, as appearing in St.1941, c. 373, § 18.

The board purported to authorize Franks to erect and maintain a one story building covering 10,000 square feet with a second story having a floor space of 2,000 square feet, to be occupied by three stores, the one nearest to Park Drive by the Clinton Clothing Company, the second a retail store for the sale of kitchen and restaurant supplies, and the third solely as an office for a large...