Humble Oil & Refining Co. v. Board of Appeals of Amherst

• Decision Date: 13 December 1971
• Citation: 276 N.E.2d 718,360 Mass. 604
• Parties: HUMBLE OIL & REFINING COMPANY v. BOARD OF APPEALS OF AMHERST.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 718

276 N.E.2d 718

360 Mass. 604

HUMBLE OIL & REFINING COMPANY v. BOARD OF APPEALS OF AMHERST.

Supreme Judicial Court of Massachusetts, Hampshire.

Argued Oct. 7, 1971.

Decided Dec. 13, 1971.

Bruce G. Brown, Amherst, for plaintiff.

Before TAURO, C.J., and CUTTER, REARDON, QUIRICO and HENNESSEY, JJ.

TAURO, Chief Justice.

This is an appeal under G.L. c. 40A, § 21, from a decree of the Superior Court sustaining a decision of he board of appeals of Amherst in its denial of the plaintiff's application to construct an automobile service station.

The plaintiff applied for permission to locate an automobile service station 'at the intersection of the east line of West Street, Route 116 and the south line of Pomeroy Lane in Amherst' which is classified as a limited business district. A service station is permitted by 'special exception' within such a district. See G.L. c. 40A, § 4. The town by-law with respect to 'special exceptions' (XI--4 'Special Exceptions,' as amended on March 8, 1967) reads: 'Where a special exception may be authorized by the Board of Appeals under this By-Law, said Board may grant, upon written application, such special exception if it finds, among other things: a. That the premises in question is appropriately located and reasonably adaptable to the proposed use; b. . . . c. That the use will not be a nuisance, or a serious hazard to vehicles or pedestrians; d. That adequate and appropriate facilities will be provided for the proper operation of the proposed use; e. . . .' (emphasis added). The plaintiff contends that having satisfied these requirements the allowance of its application by the board of appeals was mandatory.

The contention that 'may' has a mandatory and not a permissive meaning must be rejected. First, XI--4 of the town by-law was amended by substituting the word 'may' for 'shall' before the word 'grant,' second, the Zoning Enabling Act (G.L. c. 40A, § 4) ¹ does not provide an absolute right to a special permit. Zaltman v. Board of Appeals of Stoneham, Mass., 258 N.E.2d 565. ^a Gulf Oil Corp. v. Board of Appeals of Framingham, 355 Mass. 275, 244 N.E.2d 311; MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635, 255 N.E.2d 347; Brockton Pub. Mkt. Inc. v. Board of Appeals of Sharon, Mass., 260 N.E.2d 222. ^b The mere fact that the standards set forth are complied with does not compel the granting of a special permit for as this court has stated, 'The by-law confers a measure of discretionary power to the board, but it does not confer unrestrained power to grant or withhold special permits by the arbitrary exercise of that discretion.' MacGibbon v. Board of Appeals of Duxbury, supra, 356 Mass. at 638, 255 N.E.2d at 350. The question is whether the board has based its decision on a 'legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary.' Id. at 639, 255 N.E.2d at 350. Gulf Oil Corp. v. Board of Appeals of Framingham, supra, 355 Mass. at 277, 244 N.E.2d 311.

A gasoline station is...