Gem Properties, Inc. v. Board of Appeals of Milton

• Decision Date: 16 May 1960
• Citation: 167 N.E.2d 315,341 Mass. 99
• Parties: GEM PROPERTIES, INC. v. BOARD OF APPEALS OF MILTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 315

167 N.E.2d 315

341 Mass. 99

GEM PROPERTIES, INC. v. BOARD OF APPEALS OF MILTON.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued March 9, 1960.

Decided May 16, 1960.

Alexander E. Finger, Boston, for plaintiff.

John J. Murray, Town Counsel, Boston, for defendant.

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

CUTTER, Justice.

This is an appeal to the Superior Court from a decision ¹ of the board of appeals of Milton, following the denial by the building inspector of building permits for a single family dwelling on each of two lots (30A and 30B) owned by Gem Properties, Inc. (Gem). In its decision, which had the effect of affirming the denial of a permit, the board of appeals also denied a variance from the terms of the Milton zoning by-law with respect to these lots. By final decree it was determined that no modification of the board's decision denying a variance was required. Gem has appealed. The evidence is reported.

The trial judge found that on September 7, 1950, one Gordon, Gem's 'principal officer and stockholder,' obtained the planning board's approval of a plan showing a 'layout of twenty-nine lots all fronting either on Badger Circle or Pleasant Street, both * * * laid out as public ways. Another lot, numbered 30, * * * was shown as in the rear of lots * * * 9, 10, and 11 and otherwise surrounded by land of the town * * * and having no access to a public way.' The evidence showed that the town land was used for a cemetery. On December 28, 1953, Gordon submitted a plan showing lots 10 and 11, fronting on Badger Circle, with lot 30 in the rear divided into lots numbered 30A (24,253 sq. ft.) and 30B (30,403 sq. ft.). 'Access to these two rear lots was shown by a 20-foot right of way along the line dividing lots 10 and 11, taking 10 feet off of each lot for their entire depth and continuing on the division line of lots 30A and 30B * * * approximately 130 feet.' It was indorsed for the planning board on December 28, 1953, 'Approval under the subdivision control law not required,' and on August 13, 1954, was recorded in the registry of deeds.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Gordon had conveyed to Gem several lots, including lots 10, 11, and 30, 'and on January 8, 1953 [prior to the filing of the plan of December 28, 1953, showing lots 30A and 30B], Gem conveyed * * * lots 10 and 11 to one Lindgren with a reservation of a 20-foot easement for specific public utilities and '* * * for * * * passing and repassing to and from Badger Circle to * * * lot 30 and any subdivision thereof, said easement to remain forever open and unobstructed.'' Cf. Siegemund v. Building Com'r. of Boston, 259 Mass. 329, 333, 156 N.E. 852. At some time, as appears from a page of the town atlas which was an exhibit, the owners of lots 10 and 11 improvidently placed parts of their dwellings within a very few feet of the right of way. Although (as the trial judge found) that 'easement * * * was a matter of record at the time they purchased their respective lots,' the proximity of these buildings to the right of way was a principal consideration leading the board of appeals to deny a variance.

On June 1, 1957, Gem requested and the building inspector denied the building permits already mentioned. Gem then appealed to the board of appeals, which filed its decision on September 27, 1957, after a public hearing at which various property owners protested any variance.

The zoning by-law in effect on June 1, 1957, provided in § VI, A, 4, 'Frontage * * * shall be determined as follows: The distance shall be measured along the street line from one side line of the lot to the other and the distance shall also be measured between said side lines along a line which marks the required front setback of the dwelling on such lot, and the longer of said distances shall determine the frontage of such lot.' ² 'Street' was defined in the by-law (§ I, A, 1) as meaning 'public ways * * * private ways open for public use, and private ways plotted or laid out for ultimate public use, whether or not constructed.' Lots 30A and 30B were in a Residence C district as to which § VI, A, 3, required that a lot of this character contain 'not less than 7,500 square feet each and * * * [have] a frontage of not less than 75 feet.'

In the view we take of the case, we need not determine whether, if any variance was required, the trial judge was right in concluding that the board of appeals could properly deny such a variance, notwithstanding the hardship seemingly involved in preventing Gem from using nearly 55,000 square feet of land for any building purpose. See Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555, 557-560, 120 N.E.2d 916; Sheehan v. Board of Appeals of Saugus, 332 Mass. 188, 189, 124 N.E.2d 253. Cf. McHugh v. Board of Zoning Adjustment of Boston, 336 Mass. 682, 690, 147 N.E.2d 761. It, however, must be determined whether the 1957 amendment of § VI, A, 4, of the zoning by-law does prevent issuing a building permit to Gem.

It may reasonably be contended that, even after the 1957 amendment of § VI, A, 4, the frontage of lots 30A and 30B upon the right of way as extended into old lot 30 by the plan filed December 28, 1953, was sufficient to satisfy the amended by-law. At the time of the 1957 amendment, there was no change in § I, A, 1, of the zoning by-law defining 'street' as including 'private ways plotted * * * for ultimate public use, whether or not constructed' (emphasis supplied). This ambiguous definition could be regarded as broad enough to include contemplated 'plotted,' private ways, in the sense of ways wholly in private ownership by reason of 'ownership of easements * * * over [the] land of another person' which, when built, will be open to and 'susceptible of use by the public * * * for purposes of travel, not merely incidental to * * * use by the owner thereof, in a manner similar to * * * use for * * * travel of a public way of the same general nature.' See Opinion of the Justices, 313 Mass. 779, 781-783, 47 N.E.2d 260; See also Tehan v. Security Natl. Bank of Springfield, Mass., 163 N.E.2d 646. In view of the circumstance that the reserved easement included 'establishing, constructing, and maintaining therein utilities for drainage, water, sewer, electricity, gas etc.,' as well as the right to pass and repass, any roadway actually constructed to lead to dwellings on lots 30A and 30B, as a practical matter, would be likely to be used, and to be open to public use, in a manner substantially similar to the use which actually would be made of a narrow, dead end public side street leading to only two houses. Nevertheless, the circumstance that in § I, A, 1, 'private ways plotted * * * for ultimate public use' are equated with 'public ways' and with 'private ways open for public use' leads us to conclude that 'private ways plotted * * * for ultimate public use' in context means ways designed to be dedicated wholly to public use and not rights of way, like this one, appurtenant to back lots. It may be that the owners of the dominant land would not be able, in all respects, to bring about a dedication of the easement to public use.

Even if the right of way is not a 'street' within § I, A, 1, on another ground § VI, A, 4, as amended in 1957, may not be applicable to prevent building on lots 30A and 30B in the manner permitted prior to the 1957 amendment. The board of appeals assumed that the 1957 amendment 'did have the effect of making lots 30A and 30B nonbuildable lots.' Prior to the 1957 amendment (see footnote 2, supra), § VI, A, 4, would have permitted on these lots any buildings allowed in a Residence C zone. The 1957 amendment thus in effect made lots 30A and 30B an area within which no building could be built, solely because of...