Dobbs v. Board of Appeals of Northampton

• Decision Date: 05 November 1959
• Citation: 339 Mass. 684,162 N.E.2d 32
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Harold K. DOBBS et al. v. BOARD OF APPEALS OF NORTHAMPTON et al.

Page 32

162 N.E.2d 32

339 Mass. 684

Harold K. DOBBS et al. v. BOARD OF APPEALS OF NORTHAMPTON et al.

Supreme Judicial Court of Massachusetts, Hampshire.

Argued Sept. 24, 1959.

Decided Nov. 5, 1959.

William H. Welch, Northampton, for the defendants, Evelyn Elinsky and another.

Salvatore A. Polito, Northampton, for for plaintiffs.

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

WHITTEMORE, Justice.

This is an appeal from a decree of the Superior Court which annulled a decision of the zoning ordinance board of appeals of Northampton. See G.L. c. 40A, § 21. The decision of the board of appeals in March, 1958, granted the application of Evelyn and Caroline F. Elinsky, the appellants, owners of property at 95 Massasoit Street, in a residence B district, for a permit to use the premises for a beauty shop. The ground of the decision was that the proposed use was 'a less objectionable non-conforming use within the provisions of' § 16 of the ordinance which provides in clause (c): 'Any non-conforming use may be changed to another non-conforming use or any non-conforming building may be rebuilt or repaired on permit from the board of appeals, such new use or reconstructed building not to be substantially different in character or more detrimental or objectionable to the neighborhood.' The appellees, the plaintiffs, are the owners of adjoining premises.

The judge, in a 'Report of material facts and order for decree,' found that a non-conforming use of the premises had been made until March 15, 1954, 'when the non-conforming use was discontinued'; that that use 'had been voluntarily discontinued by the owners of the real estate for a continuous period of four years prior to the board's decision'; and that the ordinance, in effect for at least four years prior to 1958, provided (§ 16 [e], 'When any non-conforming use has been discontinued for a period of two (2) years it shall not be re-established, and future use shall be in conformity with this ordinance.'

The relevant evidence, including the ordinances, has been designated. G.L. c. 214, § 24. Rule 2(B), (C), of the Rules for the Regulation of Practice before the Full Court (1952) 328 Mass. 693-694. There appears no dispute as to the facts: The zoning ordinance was adopted February 17, 1949. The premises had been used as a grocery store from 1922 to 1949 or 1950. One Newhall held the premises under a written lease, and paid rent therefor, from May 12, 1950, to May 15, 1955. He used the premises to store and sell farm equipment until May, 1954, when he moved to a new location. He continued to use the building for storage until May, 1955, and went to the building once in every two or three months. When the building became vacant the owners listed it with a real estate agent who suggested that the owners advertise it, spoke to several prospects, and secured his last interested prospect one and a half or two years prior to the court hearing in June, 1958. Since then he had done nothing to rent the premises except that one one occasion 'he spoke to somebody in regard to putting a sales office there.' The owners put two 'for rent' signs in the window of the building two days after Newhall vacated it. One sign remained in place from May, 1955, to June 29, 1958. The other remained in the window until a year prior to the date of hearing. One of the owners placed an advertisement in the local paper on May 19 and 21, 1955, and 'also inserted two or three small ads in the newspaper after the big ads which appeared in May, 1955,' but was uncertain whether these appeared after the end of 1955. The prospective tenant, in order to adapt the premises for beauty parlor use, intended to install two booths. She would work alone and there would be no odor or noise.

1. In the opinion of a majority of the court, the decree cannot be sustained on the ground stated by the judge.

We have indicated that for a finding of discontinuance there must be evidence of abandonment, that is, of intent to abandon and of voluntary conduct carrying that implication. Pioneer Insulation & Modernizing Corp. v. City of Lynn, 331 Mass. 560, 564-565, 120 N.E.2d 913. We think that the evidence of abandonment is insufficient. We assume that evidence of things done or not done which carries the implication of abandonment will support a finding of intent, whatever the avowed state of mind of the owner, so that the second of the two factors mentioned in the Pioneer case may, in appropriate circumstances be controlling evidentially. But so far as an intent is shown in the owners' conduct in allowing the premises to be without a tenant for two years and nine months, making some effort to rent for business use, making no effort to convert to residential use, it is an intent to continue the business use. The negotiations for the beauty shop rental speak of a continuing intent. Failure to make any use of premises for an...