Cary v. Board of Appeals of Worcester

• Decision Date: 29 April 1960
• Citation: 166 N.E.2d 690,340 Mass. 748
• Parties: Frederick D. CARY at al. v. BOARD OF APPEALS OF WORCESTER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 690

166 N.E.2d 690

340 Mass. 748

Frederick D. CARY at al. v. BOARD OF APPEALS OF WORCESTER et al.

Supreme Judicial Court of Massachusetts, Worcester.

Argued March 2, 1960.

Decided April 29, 1960.

Walter J. Griffin, Holyoke, for plaintiffs.

Lawrence H. Fisher, Worcester, for defendants.

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

WHITTEMORE, Justice.

Five owners of property on Pomona Road, Worcester, contend on this appeal that the subsidiary facts found by the judge in the Superior Court require the conclusion that the statutory requirements for a zoning variance have not been met, so that the decision of the defendant board of appeals of Worcester granting a variance to the defendant Foodland, Inc., was beyond its authority and the decree which sustained it was in error.

The board's decision, filed in the city clerk's office January 24, 1958, authorized Foodland, Inc., to use an interior lot, marked C on the accompanying sketch, as a parking lot for its employees and customers, in connection with the operation of a supermarket in the front lot on Pleasant Street on condition that lights be focused and shielded 'so as not to cast any light on any of the abutting properties; [and] that the area * * * be enclosed with a five foot high solid ceder picket fence * * * or * * * other suitable opaque fencing so as to prevent any glare from motor vehicle headlights being cast on abutting properties * * *.'

Both sides of Pleasant Street are in the Business C zone, which on the north side of the street is 100 feet deep. The locus is entirely within the adjacent Residence B zone and is bounded on the east by public school grounds, on a higher elevation, set off by a retaining wall and a superimposed wire fence.

William and Louis Kaplan are the sole owners of the stock of Foodland, Inc., which is one of two corporations formed by them in connection with the establishment and operation of the supermarket. The judge found: 'The operation of the supermarket * * * and the ownership of the real estate including the area for which the variance is sought * * * are so interrelated that altogether they constitute one enterprise.' We shall refer to the owner or owners of the land and the enterprise as the Kaplans. The Kaplans had from 1949 to 1957 operated a store on the opposite side of Pleasant Street. In 1955 they bought a house and lot (A on sketch) at the corner of Pleasant Street and Pomona Road. On July 30, 1956, they acquired by two deeds the adjacent property shown, with a later division, as B and C on the sketch. This property, an old home site, had a frontage of ninety feet on Pleasant Street and a depth of 503 feet. When the market building was constructed so much of the land acquired in 1956 as is marked B on the sketch was included in the market and parking site, apparently by applying to areas A and B as a single lot a provision of the zoning ordinance reading that '[w]here a lot is situated in more than one district * * * it shall be deemed to be entirely within the district in which the greater or greatest portion of its area is situated * * *.'

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The judge found that the parking area available to the market (i. e. most of B, and a small part of A) is inadequate, traffic conditions are often congested on Pleasant and Mill Streets, and the character of Pleasant Street has changed substantially to more business since 1923 when the ordinance was enacted. Other findings are stated below.

The plaintiffs are right that changes and commitments made by the Kaplans after purchasing the land with a zoning law limitation on its use cannot be made a fulcrum to lift those limitations. The hardship found to exist 'in connection with the operation of the supermarket' is irrelevant. See Planning Board of Springfield v. Board of Appeals of Springfield, 338 Mass. 160, 165-166, 154 N.E.2d 349, and cases cited. But the judge also found hardship to the owner of the locus in that 'the rear lot * * * is not * * * suitable * * * [for, nor] adaptable to residential development * * * from a sound investment point of view.' Although the judge was addressing his findings to the locus as left after the commitment of area B to market use, there is basis for the view that the rear lot, which included the locus and some of the land later allocated to B, was, at the time of its purchase by the Kaplans, subject to a condition 'especially affecting' it, and 'not affecting generally the zoning district in which * * * [such lot was] located.' Our decision on another issue is such that we need not determine whether the limited availability of the locus for residential purposes could be found to constitute a hardship such as would support the variance--a variance which in its effect has aspects of a change in zone boundary. See Real Properties, Inc. v. Board of Appeal of Boston, 319 Mass. 180, 183-185, 65 N.E.2d 199, 168 A.L.R. 8; Coleman v. Board of Appeal of Building Dept. of City of Boston, 281 Mass. 112, 116-117, 183 N.E. 166.

The full and careful findings support the conclusion that 'desirable relief may be granted without substantial detriment to the public good.' G.L. c. 40A, § 15. The judge's finding was reasonable that the public good would be served by the increase in parking facilities for this growing business area where traffic and parking at times make maximum use of the highways, and congestion results.

The judge made findings as follows on the issue of substantial derogation 'from the...