Blackman v. Board of Appeals of Barnstable

• Decision Date: 20 July 1956
• Citation: 136 N.E.2d 198,334 Mass. 446
• Parties: BLACKMAN v. BOARD OF APPEALS OF BARNSTABLE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 198

136 N.E.2d 198

334 Mass. 446

BLACKMAN v. BOARD OF APPEALS OF BARNSTABLE et al.

Supreme Judicial Court of Massachusetts, Barnstable.

Argued May 8, 1956.

Decided July 20, 1956.

J. Blake Thaxter, Jr., Irving H. Beckwith, Cohasset, for petitioners.

Kenneth E. Wilson, Hyannis, for respondent.

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

SPALDING, Justice.

This is a bill in equity under G.L. (Ter.Ed.) 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 for the erection of a bath house for commercial purposes at Craigville Beach. The bill is brought by three owners of residential property abutting the area in question. One Pendergast, the owner of the property involved, was permitted to intervene. The judge entered a decree to the effect that the board of appeals did not exceed its authority in granting the variance. From this decree the plaintiffs appealed. The evidence is reported.

The area in question, which is located in a residential zone, consists of a parcel of eight acres and has a frontage on the ocean of approximately 720 feet. To the east and north of the area are residences, most of which are occupied only in the summer. The area is bounded on the west by a commercial bath house where food is sold. Beyond this bath house to the west there are other properties devoted to commercial purposes consisting of bath houses, restaurants and parking areas. Also to the west there is a public beach with bath house and parking area owned and operated by the town of Barnstable. The commercial uses described above existed prior to 1950, when the zoning by-law here involved was adopted, and have been continued as nonconforming uses. Craigville Beach, on which the area is located, is excellent for bathing and is extensively used for this purpose during the summer months.

In 1952, Pendergast, the owner of the area, applied for and was granted a variance allowing him to place a hard surface on the property and to use it as a commercial parking space. Under the terms of the variance all other activities were forbidden. ¹

In 1953 Pendergast applied for a variance to permit him to erect a commercial bath house on the area. The board of appeals refused to grant the variance on the ground that it would 'effect substantial detriment to the public good.' On appeal to this court the decision of the board was upheld. Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555, 120 N.E.2d 916. Shortly after the decision in that case Pendergast again applied for a variance to permit the construction of a bath house and toilet facilities on the area. The matter was considered by the planning board of the town and it made a recommendation to the board of appeals that the variance be granted. Thereafter, after a hearing, the board of appeals rendered a decision granting the variance, subject to certain restrictions. ² It is this decision from which the present proceedings arise. The foregoing facts are not in dispute. The principal controversy at the hearing in the Superior Court related to such matters as the need and desirability for the variance and its effect on property near by.

The decree of the Superior Court was erroneous.

The judge voluntarily filed a document entitled 'Finding, Ruling, and Order for Decree' in which he stated, 'I find and rule that the board of appeals for the town of Barnstable acted in good faith within its statutory powers and that its decision was not arbitrary, inconsistent or unreasonable.' There were no other findings. The plaintiffs then requested a report of material facts and the judge reported as follows: 'The material facts upon which my Finding, Ruling, and Order for Decree was made were based upon the testimony that I heard from all the witnesses in the case, and I found on that testimony that the board * * * acted in good faith, and that its decision was not arbitrary, inconsistent or unreasonable.' These findings afford no basis for the decree entered below. In a series of recent decisions the nature of the appeal in cases of this sort has been fully set forth. 'It is now plain that it is the duty of the judge to determine the facts for himself upon the evidence introduced before him and then to apply the governing principles of law and, having settled the facts and the law, to inspect the decision of the board and enter such decree as justice and equity may require in accordance with his determination of the law and facts.' Devine v. Zoning Board of Appeals of Lynn, 332 Mass. 319, 321, 125 N.E.2d 131, 133; Bicknell Realty Co. v. Board of Appeal of Boston, 330 Mass. 676, 116 N.E.2d 570. Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555, 558-559, 120 N.E.2d 916. These decisions construed other statutes, but what is there said is applicable to the similarly worded provisions of c. 40A, § 21, which govern the case at bar.

The findings of the judge here do not meet these requirements. All that they reveal are that the...