Dion v. Board of Appeals of Waltham

• Citation: 183 N.E.2d 479,344 Mass. 547
• Parties: Robert E. DION v. BOARD OF APPEALS OF WALTHAM. CITY COUNCIL OF WALTHAM et al. v. BOARD OF APPEALS OF WALTHAM et al.
• Decision Date: 12 June 1962
• Court: United States State Supreme Judicial Court of Massachusetts

Page 479

183 N.E.2d 479

344 Mass. 547

Robert E. DION v. BOARD OF APPEALS OF WALTHAM.

CITY COUNCIL OF WALTHAM et al. v. BOARD OF APPEALS OF WALTHAM et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued May 10, 1962.

Decided June 12, 1962.

John A. McCarty, Waltham, for Dion.

William J. Bannan, Jr., City Sol., for City Council of Waltham and another.

George A. McLaughlin, Boston (Arthur M. Gilman, Boston, with him), for Board of Appeals of Waltham.

Before WILKINS, C. J., and SPALDING, WHITTEMORE, CUTTER, and SPIEGEL, JJ.

CUTTER, Justice.

In May, 1959, one Maynard purchased over nineteen acres of land in Waltham at the northeast corner of Trapelo Road (which runs approximately east and west) and Smith Street (which runs roughly north and south). This land had a frontage of 760 feet on Trapelo Road and of 375 feet on Smith Street. The nineteen acre lot was purchased subject to two easements, one 250 feet wide granted in 1947 to Boston Edison Company (Edison), and the other a narrower grant to Algonquin Gas Transmission Company (Algonquin) for an underground pipe line. Upon the Maynard land, the southerly edge of the Edison easement runs roughly northwest and southeast and crosses Trapelo Road about 200 feet east of the junction of Trapelo Road and Smith Street. It cross Smith Street about 180 feet north of that junction. The southerly edge of the Edison easement between Smith Street and Trapelo Road is about 350 feet long and with those two ways forms a triangle (the locus) containing about 25,000 square feet.

At the time of the 1959 purchase, the nineteen acres had been zoned as part of an extensive A-3 single residence district since 1952. About the time of the purchase, an area near and northwest of the purchased land was rezoned for 'limited commercial' use. This area is now occupied by the plant of Clevite Corporation (Clevite).

Maynard, in purchasing the land, acted as 'straw' for Mr. Connolly, an attorney, and at once gave Mr. Connolly a deed of the property, which has not been recorded. The stamps on the deed to Maynard indicate that Mr. Connolly paid about $19,000 for the entire nineteen acre parcel. Within a week after the purchase, Mr. Connolly began negotiations for the sale of the locus and, before the end of May, 1959, had agreed to sell it for $25,000, provided permission to maintain a filling station upon it could be obtained.

On June 8, 1959, a petition for a change of zone for the whole nineteen acre parcel was filed with the city council. The petition was given 'leave to withdraw' on December 4, 1959. On February 15, 1960, Mr. Connolly (through Maynard) applied for permission 'to erect and use a filling station on Trapelo Road at the northeast corner of Smith Street.' The board of appeals, after a public hearing, on May 3, 1960, voted that Maynard's 'appeal * * * be granted' with various restrictions as to the type of building, fencing, hours and type of use, signs, and lighting. The board at first made findings only in substantially the words of the zoning statute. See G.L. c. 40A, § 15, cl. 3 (as amended through St.1958, c. 381). ¹ On May 9, a record of the board's original decision was filed with the city clerk. See G.L. c. 40A, § 18 (inserted by St.1954, c. 368, § 2; see amendment by St.1960, c. 326, not effective until after the board's proceedings in this case; see St.1962, cc. 203, 212). On May 20, 1960, at an executive session the board amended its decision of May 3, by stating the reasons for its decision at greater length, in effect adding to the statutory language of § 15 (see cl. 3, fn. 1, supra), the additional language set out in the margin. ² The amended decision was added by vote to the records of a public meeting held on May 24, 1960.

The members of the Waltham city council and the building inspector (hereinafter collectively referred to as the council) and also Dion appealed. These appeals were heard by a Superior Court judge who made voluntary findings, rulings, and an order for a decree. A final decree was entered in each case stating that the board of appeals 'did not exceed its authority by granting a variance.' Dion and the council then appealed to this court. The evidence is reported.

The trial judge found essentially the facts already stated with respect to the locus, the Edison and Algonquin easements, the 1959 rezoning of the area occupied by Clevite, and the proximity of Route 128 ('about 800 feet from the' locus). He found also that '[f]or some time the * * * [locus] has presented an unsightly appearance due to clandestine dumping * * * which would be difficult * * * effectively [to] control * * * [because of] the accessibility of the vacant land at this intersection. * * * The presence of the high tension wires, the isolating effect of the two easements and streets, the substreet level of the land and its triangular shape and location at an intersection are all factors which must have foreclosed any possible residential use for this lot. The presence of the peat deposits and the brook * * * [support] this conclusion.' He concluded 'that as to this lot of land, owning to conditions especially affecting it but not affecting generally the zoning district in which it is located a literal enforcement of the zoning * * * [ordinance] would involve substantial hardship, financial or otherwise, to its owner. The net result would be to force the owner of an isolated triangular lot which due to its location and low level invites unsightly dumping * * * to incur expense and hardship where any possible use as residential building * * * is virtually ended. * * * [R]elief can be granted by variance without substantial detriment to the public good and without * * * substantially derogating from the intent * * * of the zoning * * * [ordinance]. The * * * isolating factors * * * set it apart from the surrounding residential areas * * *.' The judge thought that a filling station would increase traffic at the intersection but that it was unlikely 'that the new use will cause any greater increase * * * than did the recent commercial expansion from Route 128 to Smith Street.'

1. The trial judge's subsidiary findings are fully justified by the evidence. The judge also took a view of the locus.

The judge's conclusion, to which most serious objection is made, is that relating to special hardship affecting the locus. Maynard's predecessors in title doubtless received compensation for the injury to the lot of which the locus is a part, caused by the Edison and Algonquin easements. Special hardship affecting this lot can hardly be found by reason of their presence. These easements (as photographs in evidence show), even if paid for, did have the effect of isolating this lot from nearby residential areas, and this isolation has bearing upon whether it is reasonable to treat it separately. The proximity of the lot to the nearby Clevite plant, recently rezoned, was a circumstance which could reasonably be regarded as more directly and adversely affecting the isolated locus than other parcels in the neighborhood. Cf. Shacka v. Board of Appeals of Chelmsford, 341 Mass. 593, 595, 171 N.E.2d 167. Peat deposits appear to have been present in other parts of the lot of which the locus was a part. There was substantial testimony, however, of peat deposits on this particular parcel which would make it less useful for residential building. See Rodenstein v. Board of Appeal of Boston, 337 Mass. 333, 335-337, 149 N.E.2d 382 (pudding stone). We give no weight to Mr. Connolly's loss of profit on a possible resale as constituting special hardship. See Bruzzese v. Board of Appeals of Hingham, Mass., 179 N.E.2d 269. ^a . See also Cary v. Board of Appeals of Worcester, 340 Mass. 748, 750, 166 N.E.2d 690. Nor would dumping upon the locus, affirmatively permitted by Maynard's predecessors in title, constitute special hardship. There was evidence, however, that the dumping was not readily controllable. Taking all proper considerations into account we cannot say that the trial judge was plainly wrong in determining that there was special hardship affecting the locus but not generally affecting the balance of the district.

It will serve no useful purpose further to summarize the evidence. The judge's findings and those of the board adequately complied with the statutory requirements. See G.L. c. 40A, § 15, cl. 3, as amended (fn. 1, supra); Barnhart v. Board of Appeals of Scituate, Mass., 179 N.E.2d 251. ^b

2. The principal basis for the council's contention that the board of appeals did not comply with c. 40A, § 15, cl. 3, appears to be that the amendment on May 20 of the board's original decision of May 3 (which was deficient under the doctrine of Gaunt v. Board of Appeals of Methuen, 327 Mass. 380, 381-382, 99 N.E.2d 60; cf. Cefalo v. Board of Appeal of Boston, 332 Mass. 178, 181, 124 N.E.2d 247) was not compliance with G.L. c. 40A, § 18. We assume that meetings of the board of appeals must be public. See G.L. c. 39, § 23A (inserted by St.1958, c. 626, § 4; see later amendment by St.1960, c. 437, § 3). Nevertheless, by c. 39, § 23C (inserted by St.1960, c. 437, § 5, effective under § 7 as of January 5, 1959), 'acting otherwise duly taken at any meeting shall not be invalidated by the failure of any officer to carry out * * * responsibilities for public notice of meetings.' In any event, the action taken in executive session on May 20 was ratified by action at a public meeting on May 24, 1960, which was well within the appeal period of twenty days after the May 3 decision was filed (on May 9) in the city clerk's office. See G.L. c. 40A, § 21, as amended through St.1958, c. 175 (see also later amendment by St.1960, c. 365). No change in the result of the board's decision of May 3 was made on May 20. The amendment added only a statement of further reasons. It was within the board's inherent administrative power thus to amend its decision within a reasonable period which we think...