Coleman v. Bd. of Appeal of Bldg. Dep't of Boston

• Decision Date: 30 November 1932
• Citation: 183 N.E. 166,281 Mass. 112
• Parties: COLEMAN v. BOARD OF APPEAL OF BUILDING DEPARTMENT OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

281 Mass. 112

183 N.E. 166

COLEMAN

v.BOARD OF APPEAL OF BUILDING DEPARTMENT OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

Nov. 30, 1932.

Exceptions from Supreme Judicial Court, Suffolk County.

Certiorari proceedings by Emma L. Coleman against the Board of Appeal of the Building Department of Boston. From order directing writ to issue, the Board of Appeal of the Building Department of Boston brings exceptions.

Exceptions overruled.

H. M. Pakulski, Asst. Corp. Counsel, of Boston, for respondents.

CROSBY, J.

This is a petition for a writ of certiorari and is brought under St. 1924, c. 488, § 19, paragraph 5. The facts are that the petitioner is the owner of the premises numbered 509 Audubon road, in Boston; that one Elias Galassi is the owner of the premises numbered 500 and 504 upon said Audubon road and diagonally opposite the property of the petitioner; that he applied to the commissioner of buildings of Boston for a permit to alter the building on the premises at 500 Audubon road, which is in a general residence district (R-80 zone), by extending the first story to the street line and remodelling the first story with two stores for business purposes. The building commissioner refused the application on the ground that the proposed alteration would be in violation of St. 1924, c. 488, § 4. From this decision Galassi appealed.

The board, after due notice and hearing, made the following findings: The petitioner Galassi is the owner of the premises in question consisting of a lot of land on Audubon road, a main highway in Boston, which, with the abutting premises numbered 504 Audubon road, are located in an R-80 district-a district that permits structures to a height of eighty feet for general residence purposes. On the abutting lot located in the L-80 district is an existing funeral home and funerals are conducted from there more or less constantly. The premises in question, with the adjoining premises of the petitioner, are located on one of the four corners formed by the intersection of Audubon road and Ivy street, and on the premises is an existing three-story building containing three large apartments, each of which occupies an entire floor and for which there is no demand. On the opposite corner of the intersection there is a block of eleven stores, plainly visible from Beacon street, and from all other directions, devoted to various classes of business. Although these stores existed before the zoning law was passed, one of them accommodates automobiles with gasoline, by a pipe and hose from the store over the sidewalk to the curb, on a permit granted since the petitioner acquired the premises. The appellant petitions to be permitted to alter the existing building on the premises in question by extending the first story thereof to the street line of Audubon road, and by remodelling said first story into two places of business, commonly called stores, which shall not be devoted to any use involving manufacture. The premises in question with the adjoining premises of the petitioner (which set back from the street) are hemmed in on either side with commercial enterprises, and relief from an enforcement of the zoning act, which involves an unnecessary hardship upon the appellant in this specific case, can be obtained only from the board of appeal. To compel the petitioner to maintain these premises on the first floor for the purpose of which they are zoned, for residential purposes, would impose practical difficulty and unnecessary hardship upon him peculiar to this specific case. Automobile traffic is so incessant that it might menace the health of occupants of the lower floor of these premises if any could be induced to occupy it. At this time the subway is being extended to a point on Beacon street at or near Audubon road, where there will be an exit and entrance tending to divert and increase traffic to the intersection in question three hundred or four hundred feet away. This will destroy what little is left of the residential character of the intersection. Within the past year the police have granted a taxi stand privilege along the Ivy street side of the petitioner's property without his knowledge or consent and have placed two tall markers on the sidewalk to indicate the space occupied by the taxis. The taxi owners have since occupied this space and are conducting their business there. The immediate intersection on which the property of the petitioner abuts has already assumed the appearance of a local business center, and has lost its appearance and adaptability for residential purposes. There are no other premises except the abutting property of the petitioner (upon which a like petition has been filed and like action taken) in this zone that are likewise affected or to which these findings could apply. The granting of relief in this specific case will in no way change or impair the already existing business use of the...