Devine v. Zoning Bd. of Appeals of Lynn
| Decision Date | 02 March 1955 |
| Citation | 332 Mass. 319,125 N.E.2d 131 |
| Parties | Peter G. DEVINE and others v. ZONING BOARD OF APPEALS OF LYNN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
William E. Sisk, Richard L. Sisk, Lynn, for plaintiffs.
Patrick F. Shanahan, City Sol., Lynn, for respondent.
Before QUA, C. J., and RONAN, WILKINS, SPALDING and WILLIAMS, JJ.
This is a bill in equity by way of an appeal under G.L. (Ter.Ed.) c. 40, § 30, as appearing in St.1933, c. 269, § 1, as amended, from a decision of the board of appeals of Lynn granting to one Fontaine a variance to permit him to construct and occupay an addition to the rear of his grocery and provision store located at the time the zoning ordinance was enacted and ever since in a district zoned for residential use. The final decree recited that the board of appeals did not exceed its authority in granting the variance and ordered that the decision of the board 'be and hereby is affirmed.'
We state the substance of the decision of the board because of the part it played at the trial. The decision discloses that the petition was brought under section 23(f) of the zoning ordinance for an addition not exceeding 25% of the floor area of an existing nonconforming building. It recites that Fontaine owns and operates a grocery store at the locus, and that the area of the building has not been increased since the zoning ordinance became effective in 1926. Since the second World War 112 dwellings have been constructed by veterans and 700 public housing units occupied by veterans and their families, all within a mile of the locus. Besides, there has been considerable construction of single family dwellings by nonveterans. The population in the area served by the store is estimated to have increased by 3,500 persons within the last few years. An increase in the floor space will substantially serve the public convenience and welfare due to this recent increase in population and will improve the statuts of the neighborhood. The Devine lot is adjacent to the store lot and will be sixty feet distant from the proposed addition. The board stated that it would be hard to imagine a set of circumstances where an abutter would be affected to a less degree than Devine. The proposed construction of the addition will be no nearer to the side boundary of the locus than is the existing building which is 43 feet distant therefrom.
The trial judge made the following findings and order for a decree. After adopting the facts found by the board in its decision 'as the facts in this finding,' he further found that a literal enforcement of the provisions of the zoning ordinance would involve substantial hardship to Fontaine, and that the granting of the variance voted by the board would not be substantially detrimental to the public good and would not derogate from the intent and purpose of the zoning ordinance. He also found that section 23(f) of the zoning ordinance was not illegal, 1 and ordered the entry of a decree affirming the decision of the board and dismissing the appeal.
The statute regulating the procedure to be followed in the Superior Court in hearing an appeal provides that 'It shall hear all pertinent evidence and determine the facts, and, upon the facts as so determined, annul such decision if found to exceed the authority of such board, or make such other decree as justice and equity may require.' G.L.(Ter.Ed.) c. 40, § 30, as amended. 2 We are aware that there was some controversy existing at the time the findings were made in the instant case as to the duties of a judge hearing such an appeal, but the statute has since been fully...
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