Bottomley v. Board of Appeals of Yarmouth
| Citation | 354 Mass. 474,238 N.E.2d 354 |
| Parties | John M. BOTTOMLEY, Trustee, v. BOARD OF APPEALS OF YARMOUTH. |
| Decision Date | 13 June 1968 |
| Court | United States State Supreme Judicial Court of Massachusetts |
John Owen Hart, West Yarmouth, for defendant.
Selwyn I. Braudy, New Bedford, for plaintiff.
Before WILKINS, C.J., and SPALDING, CUTTER, SPIEGEL, and REARDON, JJ.
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 of the town of Yarmouth refusing to grant to the plaintiff a variance permitting him to divide a residence into six apartments. The judge ordered the board to grant a variance and the board appealed. The judge made a report of the material facts found by him. The evidence is reported.
The plaintiff is trustee of the Bottomley Trust, which is the owner of a residence (hereinafter called the residence) in the town of Yarmouth. The residence is located in a district zoned for residences. Section II of the town's zoning by-law provides in part as follows:
When the plaintiff purchased the residence, he intended it for a home for his elderly father, mother, father-in-law, and three aunts. After the plaintiff had spent approximately $24,000 on the residence, the contemplated use was no longer feasible for the reason that five of the intended occupants had died, and the sixth was confined to a hospital.
One of the reasons assigned by the board for denying the variance was that '(i)t did not appear that the land in question was substantially different * * * (from) the rest of the area in which it was zoned.'
The judge took a view and his findings include the following: The In the immediate neighborhood there are guest houses, apartment houses, a plumbing business, a civil engineer's office, a wire factory and a 'rather busy doctor's office.' 1 Business areas abut the Bottomley residence on two sides. 'The use of the dwelling as six apartments would not alter or change the character or appearance of the neighborhood,' and '(a) literal enforcement of * * * the zoning by-laws involves substantial hardship, * * * in that twenty-four thousand dollars * * * has already been invested, the twenty-room dwelling with ten baths can not practically be used as either a one or two family dwelling and annual real estate taxes will be payable.' The judge concluded that the board's denial of the plaintiff's application for a variance was 'unreasonable, arbitrary and capricious.'
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Damaskos v. Board of Appeal of Boston
...607, 610--611, 171 N.E.2d 144; Rose v. Board of Appeals of Wrentham, 352 Mass. 301, 303, 225 N.E.2d 63; Bottomley v. Board of Appeals of Yarmouth, 354 Mass. 474, 476--477, 238 N.E.2d 354. Cf. Dion v. Board of Appeals of Waltham, 344 Mass. 547, 555--556, 183 N.E.2d 479. Because of the rigid ......
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Gamache v. Town of Acushnet
...based solely upon a legally untenable ground. Nor was the denial whimsical, capricious or arbitrary. Bottomley v. Board of Appeals of Yarmouth, 354 Mass. 474, 476-477, 238 N.E.2d 354 (1968). 9 There is, of course, no legal right to a variance. Rose v. Board of Appeals of Wrentham, 352 Mass.......
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