Brackett v. Bd. of Appeal of Bldg. Dep't of City of Boston

• Decision Date: 25 February 1942
• Citation: 39 N.E.2d 956,311 Mass. 52
• Parties: BRACKETT v. BOARD OF APPEAL OF BUILDING DEPARTMENT OF CITY OF BOSTON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

311 Mass. 52

39 N.E.2d 956

BRACKETT

v.BOARD OF APPEAL OF BUILDING DEPARTMENT OF CITY OF BOSTON et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 25, 1942.

Exception from Superior Court, Suffolk County; Fosdick, Judge.

Certiorari proceedings brought in the superior court by John G. Brackett, trustee, against the Board of Appeal of the Building Department of the City of Boston and another, to quash a decision by the Board varying the application of the zoning law of the City of Boston with respect to a vacant lot. The petition was ordered dismissed, and petitioner brings exceptions.

Exceptions sustained, and case remanded to the superior court.

Before FIELD, C. J., and DONAHUE, DOLAN, and COX, JJ.

J. G. Brackett, trustee, pro se.

K. Hern, Asst. Corp. Counsel and J. W. Kelleher, Sp. Asst. Corp. Counsel, both of Boston, for respondent Board.

COX, Justice.

This is a petition for a writ of certiorari brought in the Superior Court (St. 1924, c. 488, § 19; G.L.[Ter.Ed.] c. 213, § 1A, as inserted by St. 1939, c. 257, § 1), to quash a decision by the respondent board varying the application of the zoning law of the city of Boston with respect to a vacant lot of land in a general residence district, so that it may be used as a parking space. The petition was ordered dismissed ‘as a matter of law and not as a matter of discretion,’ and the petitioner alleged exceptions. The Sheraton, Inc., a corporation, was joined as a respondent, but no question is raised as to the propriety of the order of the Superior Court dismissing the petition as to it. The question presented is whether the respondent board exceeded its authority.

The city of Boston is excepted from the provisions of G.L. (Ter.Ed.) c. 40, §§ 25-30A, inclusive, as amended, and the provisions of law regulating and restricting the use of buildings and premises in the city, constituting, in effect, the zoning law of said city (Prusik v. Board of Appeal of Boston, 262 Mass. 451, 453, 160 N.E. 312), are found in St. 1924, c. 488, as amended. Section 4 of said c. 488 provides that in a general residence district no building or premises shall be erected, altered or used except for one or more of the following uses: (1) Any use permitted in a single residence district; (2) dwellings; (3) clubs, social or recreational buildings, except clubs the chief activity of which is a service customarily carried on as a business; (4) hotels, provided they conform to all the requirements of the act for dwellings; (5) accessory uses customarily incident to any of the above uses, the term ‘accessory use’ to be construed as in § 3 (see St. 1933, c. 204, § 3, that now permits as an accessory use elsewhere than in a thirty-five foot district a garage in the basement or cellar, or both of a building); and (6) telephone exchange offices. There is a further provision that in a general residence district the building commissioner may grant a permit for physicians' offices, provided the building or use is not detrimental or injurious to the residential character of the neighborhood, and by St. 1925, c. 219, § 4, the commissioner may grant a permit for dentists' offices as well. By the provisions of § 3 of said c. 488, as amended by St. 1933, c. 204, § 1(a), it is provided that the term ‘accessory use’ shall not include a garage or parking of automobiles, except garage space for or parking of not more than three automobiles, of which not more than one may be a commercial vehicle, provided that such a garage, ‘except a building exempted from being licensed as a garage by section fourteen of chapter one hundred and forty-eight of the General Laws, is licensed as provided in paragraph (9)’ by the board of street commissioners. It appears that the lot in question is in a general residence district that permits structures to be erected to a height of eighty feet, ‘and to be used for general residence purposes as enumerated under the provisions of Section 4, chapter 488, Acts of 1924, as amended.’ In a proceeding of this character only errors of law apparent upon the face of the record can be reviewed. Findings of fact are not open to revision. Bradley v. Board of Zoning Adjustment of Boston, 255 Mass. 160, 163, 150 N.E. 892. Primarily, it is a question of fact whether the action of the board of appeal is warranted, although it may become a question of law. Norcross v. Board of Appeal of Boston, 255 Mass. 177, 186, 150 N.E. 887.

Statute 1924, c. 488, § 19, provides that the board of appeal, as provided for in the building law of the City of Boston, may vary the application of the zoning law of the city ‘in specific cases, wherein its enforcement would involve practical difficulty or unnecessary hardship and wherein desirable relief may be granted without substantially derogating from the intent and purpose of [the law], but not otherwise.’ No question is raised as to compliance by the board with requirements as to notice or as to the unanimity of its vote in rendering its decision. The power of the board of appeal to authorize a variance is the same as that conferred upon the board of appeals under G.L.(Ter.Ed.) c. 40, § 30, inserted by St. 1933, c. 269, § 1.

By the provisions of § 19 of said c. 488, the board is required to cause to be made ‘a detailed record of all its proceedings, which record shall set forth the reasons for its decisions,’ and it has been held that these words mean that there must be set forth in the record substantial facts which rightly can move an impartial mind acting judicially, to the definite conclusion reached. This requirement is not satisfied by a mere repetition of the statutory words. Minute recitals may not be necessary, but there must be a definite statement of rational causes and motives, founded upon adequate findings. Prusik v. Board of Appeal of Boston, 262 Mass. 451, 457, 458, 160 N.E. 312.

It appears from the respondents' return that the building commissioner of the city of Boston denied the application of The Sheration, Inc., hereinafter referred to as the corporation, for a permit to use the premises in question for the parking of automobiles, with a sign incidental thereto. The corporation appealed from this decision, and petitioned the board of appeal to vary the application of the zoning law so as to permit the parking of automobiles and necessary signs on the premises in question. The board found, as set out in its decision, that there is a ‘deed restriction’ on the premises in question which runs until 1950 (see Jenney v. Hynes, 282 Mass. 182, 185, 186, 184 N.E. 444); ‘hence the property cannot be developed for the purpose for which it is zoned other than as a single family dwelling house. Such a development would be impractical as said premises abut a Local Business (L-80) District-a Local Business Boundary line running through the alleyway separating the premises in question from the abutting premises; and permitting on said abutting premises a structure 80' in height to be used for any business, trade or industry as enumerated under the provisions of Section 5 of the Zoning Act here in issue. The actual trend of real estate in this vicinity is distinctly away from single residences. None are being built and many residences are occupied, in part, by professional offices so this street can no longer be considered a single family area.’ It is to be observed that § 3 of said c. 488 provides for single residence districts. Further findings are that the corporation is the owner of a large hotel, the Hotel Sheraton, that is located on Bay State Road within about one hundred feet of the premises in question, and that a serious parking problem incidental to the effective conduct of the hotel has arisen; that there is very little available parking space around the hotel; that Bay State Road is a much traversed and busy thoroughfare; ‘therefore, * * * [the corporation] in good faith purchased the premises * * * [in question], in order to take care of its parking problem, thinking it would go through the proper channels in order to get relief to permit the parking of only its patrons' cars with no fee attached to same * * *. The Board has in mind the problem of a hotel situated in a general residential district located on one of the busiest thoroughfares in that section of the City of Boston, and it has in mind the close proximity of the Local Business Boundary Line to the premises here in issue, as well as the hardship involved in being unable to advantageously develop, or in any way to make productive, the lot for the purpose for which it is zoned; therefore, the Board finds that temporary relief should be granted * * * [the corporation] until such time as * * * [it] can propitiously develop the lot for the purpose for which it is zoned.’ It is also found that the premises in question are painly of the class usable for the type of occupancy requested and are peculiarly adapted for that purpose; that public necessity and public safety will be served by affording the requested off-street parking facilities which will tend to relieve dangerous traffic congestion and will confer a...