Coolidge v. Zoning Bd. of Appeals of Framingham

• Decision Date: 09 March 1962
• Parties: Frederick W. COOLIDGE et al. v. ZONING BOARD OF APPEALS OF FRAMINGHAM et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 670

180 N.E.2d 670

343 Mass. 742

Frederick W. COOLIDGE et al. v. ZONING BOARD OF APPEALS OF FRAMINGHAM et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Jan. 2, 1962.

Decided March 9, 1962.

Paul C. Hanna, Framingham, for plaintiffs.

Louis J. Ferrari, Boston, for defendant.

James D. St. Clair, Boston, for interveners.

Before WILKINS, C. J., and SPALDING, WILLIAMS, CUTTER and KIRK, JJ.

KIRK, Justice.

This is a bill in equity under G.L. c. 40A, § 21, as amended, by way of an appeal from a decision of the zoning board of appeals of the town of Framingham granting a variance to John Philopoulos and Kenneth Hanna allowing construction of buildings for business and professional offices on land (approximately twelve acres) located in a residential district zoned for single residences. The bill is brought by the owners of nearby residential property which would be affected by the variance. Philopoulos and Hanna were permitted to intervene. The judge entered a decree that the board did not exceed its authority in granting the variance and that no modification of the decision was required. The plaintiffs appealed. The judge made a statutory report of material facts. The evidence is not reported.

We summarize the facts as stated in the report of material facts: The locus is situated in the vicinity of Prospect Street and Worcester Street in the town of Framingham. Prospect Street runs approximately at right angles to, and in a northerly direction from, Worcester Street (sometimes referred to as the Worcester Turnpike or Route 9). In this part of Framingham, Worcester Street is zoned for business purposes to a depth of 300 feet. Beyond that depth the area, of which the locus is a part, is zoned for single residences, with a 20,000 square foot minimum lot requirement. The southern boundary of the locus is the northern boundary of the above mentioned 300 foot deep business zone. In that section of the business zone which is contiguous to the locus are located an office building with parking space, a supermarket with parking space, a retail liquor store, and an automobile sales and service agency. When, in January, 1956, Hanna acquired the major portion of the locus, there was located thereon a large residence with has since fallen into a state of complete disrepair and cannot now be salvaged.

In August, 1959, Hanna and Philopoulos applied to the building inspector of the town of Framingham for a permit to construct on the locus 'one or more garden type one-story office buildings for business and professional occupancy, and a parking lot to accomodate the same.' The building inspector denied the permit on the ground that the proposed construction would constitute a 'non-conforming use in a residential area.'

Hanna and Philopoulos appealed to the board of appeals which, after hearing, directed that the permit be issued 'as a variance,' but under certain conditions. Among the latter were the requirements that there be a so called buffer zone of trees and landscaping on the north and east of the proposed buildings, a limitation on the height of the buildings, and setback restrictions. On appeal to the Superior Court under G.L. c. 40A, § 21, the judge after a hearing de novo, found, on the basis of expert testimony, that 'the development of this area in question into residential lots of 20,000 square feet, and the erection of suitable residences thereon, would entail an ultimate prohibitive sales price in excess of thirty thousand ($30,000) dollars per dwelling unit' and that 'under the circumstances, it would be unrealistic to expect the owners of the premises to develop the area for residential use at this cost and on this basis; and especially in view of the propinquity of the commercial activity in the contiguous business zone.' For these reasons the judge found that 'failure to grant this variance would have resulted in substantial hardship to the owners of the property.' He also found that in the granting of the variance there would be no substantial detriment to the public good nor any substantial derogation from the intent and purpose of the zoning by-laws of the town.

The decree must be reversed. In rendering its decision ¹ the board of appeals exceeded its authority in that it failed to meet the requirements of G.L. c. 40A, § 15, cl. 3, as appearing in St.1958, c. 381, as that section has been construed in our decisions.

The board's decision does not include a finding that the hardship to Hanna and Philopoulos involved in a literal enforcement of the zoning by-laws of the town of Framingham is 'owing to conditions especially affecting * * * [the locus] but not affecting generally the zoning district in which it is located * * *.' See Shacka v. Board of Appeals of Chelmsford, 341 Mass. 593, 594-595, 171 N.E.2d 167. For this reason the board's decision is invalid on its face and should not have been allowed...