Cities Service Oil Co. v. Board of Appeals of Bedford

• Citation: 338 Mass. 719,157 N.E.2d 225
• Parties: CITIES SERVICE OIL CO. v. BOARD OF APPEALS OF BEDFORD.
• Decision Date: 18 March 1959
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 225

157 N.E.2d 225

338 Mass. 719

CITIES SERVICE OIL CO. v. BOARD OF APPEALS OF BEDFORD.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Dec. 5, 1958.

Decided March 18, 1959.

William B. Sleigh, Jr., Boston, for plaintiff.

No argument nor brief for defendant.

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

WHITTEMORE, Justice.

This is an appeal from a final decree which adjudged that a decision of the zoning by-law board of appeals of Bedford did not exceed its authority. The record brings before us a report of material facts and the evidence in the form of a 'condensation of portions of the transcript,' approved by the judge, and the exhibits.

The judge found that on August 9, 1955, the board of appeals granted to the plaintiff a permit to use land on Great Road, Bedford, for a filling station under the provisions of the by-law applicable to business districts. ¹ The condition of the permit, so far as now relevant, was that it was 'based on plot plan * * * and photograph of type of building which you intend to construct.' The plaintiff on September 8, 1955, obtained from the selectmen a permit to store gasoline and fuel oil and on March 28, 1956, from the building inspector, a building permit. Thereafter the plaintiff changed its plans and specifications and on March 20, 1957, applied for another building permit, to replace the earlier one which had lapsed because not acted on within six months. The building inspector declined to issue the permit because of the change in plan, and the plaintiff's representative then consulted with the clerk of the board of appeals and signed in blank a petition for a public hearing dated May 1, 1957, 'which contained words added by the * * * clerk in accordance with the conversation had by him with' the plaintiff's representative. This petition was for a public hearing by the board 'to hear further evidence on petition of Cities Service Oil Co., to allow construction and operation of gasoline filling station on parcel of land * * * [described].' Notice containing this substance was duly given and a hearing was held on May 15, 1957, at which the plaintiff presented the altered plans and specifications. The board by letter of May 16, 1957, notified the plaintiff that in its opinion the use of the land for a filling station would not be to the best interests of the town because '1. The station at this location would be a great safety hazard, far greater than any other existing station in the town. 2. The location of the pumps as shown on your plan is too close to the highway and to the sewer easement. 3. The parking area is too limited. After long debate the board voted unanimously to deny your petition.'

The judge found upon all the evidence that the plaintiff failed to take advantage of the first permit and allowed the building permit to lapse, and that, if the second 'petition did not contain what the plaintiff wanted, the opportunity was its to call this to the attention of the defendant board'; that because of its failure to do this, and the form of the notice given to parties in interest, 'the board was justified in assuming that the plaintiff had abandoned its original plans and was reopening de novo its application for a special permit * * * [and this] is a reasonable inference as to the meaning of the words contained in the second petition.' The judge also found that if the plaintiff's representatives were surprised at the questions asked and were unprepared the plaintiff could have sought a postponement and there was no evidence of such a request. See Manchester v. Selectmen of Nantucket, 335 Mass. 156, 159, 138 N.E.2d 766.

The findings of the judge also stated that the plaintiff sought by testimony to show what took place at the hearing and to dispute the reasons given by the board for its decision and that the board introduced evidence to the contrary of the plaintiff's contentions; that much weight must be accorded to the judgment of the local legislative body and that 'upon all of the evidence I do not believe I am warranted in finding that the defendant board was without justification in its conclusions. Upon the evidence and applying the rule that the granting of a special permit is equally a matter of discretion with the board of appeals as an application for a variance, Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555 , ² I rule as matter of law that the board did not exceed its authority in denying the second petition * * *.'

There was undisputed testimony that the plaintiff exercised an option to buy the parcel and took title September 14, 1956, that taking of title had been delayed because of a question of a boundary 'requiring many surveys,' that in May, 1956, the plaintiff granted, or caused the then holder of the title to grant, to the town for $1 an easement to confirm a right in the town to maintain a sewer already laid in the parcel, and that the delay after title was taken was because 'it appeared that the foundations of the building * * * would have to be altered and * * * the policy of the company had changed as to the type of building.' The plaintiff's engineer in 1957 made application to the building inspector for a building permit and was told he 'would have to take the application to the board of appeals.' The engineer told the clerk of the board 'what the building inspector had told him * * * what Cities Service wanted--the change in plans from the original.' At the hearing, on May 15, 1957, attended by 'two representatives of Cities Service Oil Company' an abutting owner who had a station which would be in competition objected to the petition, and a member of the board brought up the subject of traffic hazard. The 'condensation of portions of the transcript' then reads, '* * * [the plaintiff's real estate supervisor for the New England region] informed the board that he was not prepared to combat any opposition on that ground; that he had come for the purpose of requesting a new building permit; that at no time prior to the hearing had he received any notice or intimation that the question of traffic conditions or * * * continuation of the filling station permit would be raised or that there was a requirement with respect to parking area or that a question of moving the pumps or changing their location would be brought up at the hearing.'

1. There is no finding that the plaintiff abandoned its rights under the 1955 zoning by-law permit; such a finding is not necessarily implied; we think the evidence warrants the conclusion, which we draw, that the plaintiff did not abandon those rights.

The permit of August 15, 1955, in effect zoned the land for the use specified in the permit; under and because of it and the action taken in reliance upon it the property acquired a new and valuable characteristic, which was not lost by failure to proceed promptly to exercise the new use. Failure to proceed under the building permit was not significant. LaCharite v. Board of Appeals of Lawrence, 327 Mass. 417, 422, 99 N.E.2d 66. Compare Shemeth v. Selectmen of Holden, 317 Mass. 278, 58 N.E.2d 6 (surrender). See, for rights to permits where action under them has been taken, Quinn v. Middlesex Elec. Light Co., 140 Mass. 109, 111, 3 N.E. 204; Lowell v. Archambault, 189 Mass. 70, 72, 75 N.E. 65; Hanley v. Cook, 245 Mass. 563, 565, 139 N.E. 654; Inspector of Buildings of Town of Watertown v. Nelson, 257 Mass. 346, 352, 153 N.E. 798; Selectmen of Topsfield v. Department of Public Utilities, 267 Mass. 343, 349, 166 N.E. 739. Compare Fallon v. Board of Street Com'rs of Boston, 309 Mass. 244, 34 N.E.2d 689; Woodbury v. Municipal Council of Gloucester, 318 Mass. 385, 61 N.E.2d 647; Wright v. Health Com'r of Boston, 322 Mass. 535, 78 N.E.2d 629.

For abandonment there must be intent to abandon and voluntary conduct which carries the implication of abandonment. Pioneer Insulation & Modernizing Corp. v. City of Lynn, 331 Mass. 560, 565, 120 N.E.2d 913 (discontinuance of nonconforming use). And see cases, cited infra point 2, stating the necessity of intent if waiver is to be found.

There was plainly neither the necessary intent nor conduct prior to the petition to the board in May, 1957. The evidence of events prior to May 1, 1957, shows only reliance on the permit and intent to use it.

The only clearly shown intent of the plaintiff after May 1, 1957, was to obtain a building permit. Otherwise the conduct was ambiguous in aspect but the evidence does not show that in fact the plaintiff intended to give up the only assurance which it had that it could use the land for a filling station.

What the plaintiff first applied for in 1957 was another building permit. The plaintiff called on the clerk of the board as a step in the effort to obtain such a permit. The plaintiff, of course, adopted the petition as prepared by the clerk. But that petition did not ask for a new zoning by-law permit, and requesting the board 'to hear further evidence' on the original petition was not inconsistent with an expectation that, if the further evidence showed that the new plan was, in zoning by-law substance, the equivalent of the first plan, the board would order the building inspector to issue the building permit. It was not...