Hunt v. Milton Sav. Bank

• Decision Date: 05 April 1974
• Citation: 2 Mass.App.Ct. 133,309 N.E.2d 525
• Parties: Joseph J. HUNT v. MILTON SAVINGS BANK et al. 1 (and two companion cases).
• Court: Appeals Court of Massachusetts

Page 525

309 N.E.2d 525

2 Mass.App.Ct. 133

Joseph J. HUNT v. MILTON SAVINGS BANK et al. ¹ (and two companion cases).

Appeals Court of Massachusetts, Norfolk.

Argued Feb. 21, 1974.

Decided April 5, 1974.

John E. Rogerson, Boston, for Milton Savings Bank.

Robert D. O'Leary, Town Counsel, Boston, for the Board of Appeals of milton.

Paul A. M. Hunt, Quincy, for Joseph J. Hunt.

Thomas A. Brett, Boston, for Florence E. Murphy and others.

Present ROSE, GOODMAN, and GRANT, JJ.

GRANT, Justice.

These are (1) separate bills in equity brought under G.L. c. 40A, § 21, by an abutter ² and by others claiming to be aggrieved ³ to set aside a decision of the board of appeals of the town of Milton (board) granting a variance from the provisions of the zoning by-law of the town of Milton to the Milton Savings Bank (bank) for the construction of a bank building and an associated automobile parking lot on land (locus) owned by Hoover Motors, Inc. (Hoover) which is zoned for residential uses, and (2) a petition brought against the board by two of the plaintiffs in the equity cases ⁴ for a writ of certiorari to quash the decision of the board on the ground that the board was illegally constituted. All three cases were heard together in the Superior Court, where the trial judge filed one set of findings (later adopted as a statutory report) applicable to the equity cases and another set of findings applicable to the certiorari case. The bank and the board have appealed from final decrees which annulled the decision of the board; the certiorari case is here on the petitioners' exception to an order for judgment that the petition be dismissed.

As the evidence in the equity cases is reported, all questions of law, fact and discretion in those cases are open for review by us, and we can and shall make certain findings in addition to those made by the trial judge. See Sullivan v. Board of Appeals of Canton, 345 Mass. 117, 119, 185 N.E.2d 756 (1962). However, we cannot disturb the findings made by him unless convinced that they are plainly wrong. BRODERICK V. BOARD OF APPEAL OF BOSTON, MASS., 280 N.E.2D 670^A.

1. The locus, containing some 71,000 square feet of land, comprises the major portion of an approximately rectangular block which is bounded westerly and northwesterly by Squantum Street, easterly by Libby Road (a private way) and southerly by Adams Street, which runs in a general northwesterly direction from East Milton Square to Milton Lower Mills. Four contiguous house lots, with homes on them, appear as if carved out of the northwest corner of the block; the locus comprises the remainder of the block. The easterly portion of the locus is traversed from south to north by successive easements taken by the town of Milton (town) in 1931 and in which are located pipes which enclose Unquity Brook (or Gulliver's Creek), which runs through the locus in a northerly direction to the point where, on the opposite side of Squantum Street from the northerly boundary of the locus, the brook empties into the southerly tip of the Neponset River Reservation. ⁵

When the zoning by-law was first adopted in 1922 the locus was placed in a Residence C District, in which, at the time of the application to the board and at the time of trial, no building could be erected or altered for any commercial purpose. The principal uses made of the premises following 1922 had been the sale, repair and storage of automobiles; such uses had been made under the nonconforming use provisions of the zoning by-law. In 1947, in proceedings brought in the Superior Court by the town against the then owner of the locus, a consent decree was entered to the effect that no nonconforming use any longer existed with respect to the northernly most 9,584 square feet of the locus (on which the bank proposes to construct a portion of a parking lot), and the owner was permanently enjoined from using that portion of the locus for any purpose not permitted in a Residence C. District. At the time of the hearing before the board and at the time of trial the locus was covered in large measure by a complex of garage and related buildings which the trial judge characterized as 'obsolete and rundown in appearance.' All use of the buildings was discontinued approximately two months before trial. We know from a stipulation of the parties which was filed with us pursuant to leave granted for that purpose (stipulation) that subsequent to the entry of the final decrees in the Superior Court all the buildings were demolished 'by order of the (t)own, pursuant to General Laws c. 143, §§ 7, 9, because of their dangerous condition.' Certain photographs attached to the stipulation tend to confirm the judge's characterization of the buildings.

There is heavy automobile traffic on Squantum Street due to nearby ramps which provide access to and egress from the portion of the Southeast Expressway which skirts the Neponset River Reservation and runs in a general southeasterly direction from Boston through Milton and on to Quincy. ⁶ Except for its physical presence and the traffic which it has generated, the expressway seems to have had no real impact on the general character of the neighborhood which surrounds the locus. As disclosed by the evidence and by certain of the photographs attached to the stipulation, the neighborhood is devoted exclusively to the single-family residential and other uses expressly permitted by the by-law. On Adams Street, a short distance to the east of Libby Road, are a church, a rectory, and a parochial school attended by approximately 500 students. There are no commercial uses in the neighborhood. The nearest district zoned for business uses lies some 1,200 (or 1,500) feet distant (along Adams Street) in East Milton Square. The nearest nonresidential or other nonpermitted use consists of a professional office building which lies to the easterly of another access ramp to the expressway, in the vicinity of East Milton Square. The judge, who took a view, stated in his findings that the 'entire area (surrounding the locus) is composed of well kept homes on tree lined streets.' He also stated that he 'could see no use of any of the surrounding area which would indicate that variances had been granted on other properties.'

In our view the equity cases can, and should, be determined by a consideration of the single question whether the requested variance could be 'granted . . . without nullifying or substantially derogating from the intent or purpose of . . . (the zoning) bylaw' within the meaning of G.L. c. 40A, § 15(3). If it could not, that would be the end of the matter. Atherton v. Board of Appeals of Bourne, 334 Mass. 451, 454, 136 N.E.2d 201 (1956); Planning Bd. of Springfield v. Board of Appeals of Springfield, 355 Mass. 460, 462, 245 N.E.2d 454 (1969). The board's decision on this point contains a single naked finding which paraphrases the statutory language. The trial judge stated as follows: 'I cannot rule that the (b)oard was warranted in finding that the variance may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of the zoning by-law.' We need not decide whether this particular statement was intended as a ruling as to the sufficiency of the evidence at the public hearing held by the board, ⁷ as a ruling that the bank and the board had failed to sustain their burden of proving the proposition contended for by them (see Dion v. Board of Appeals of Waltham, 344 Mass. 547, 555--556, 183 N.E.2d 479 (1962); Sullivan v. Board of Appeals of Canton, 345 Mass. 117, 119--120, 185 N.E.2d 756 (1962)), or as a simple statement that the evidence left the judge unconvinced of the truth of that proposition. The true significance of the statement lies in the fact that the judge did not make a finding, essential to the validity of the board's decision, that the variance sought could be granted without nullifying or substantially derogating from the intent or purpose of the by-law. As the evidence is reported, it falls to us to decide whether we can or should supply the missing finding. See Sullivan v. Board of Appeals of Canton, 345 Mass. 117, 119, 185 N.E.2d 756 (1962). A careful review of the cases decided under the provisions of G.L. c. 40A, § 15(3), and under the cognate provisions of St.1956, c. 665, § 9, ⁸ leads us to the conclusion that we cannot supply such a finding.

There seems to be no question that what the bank proposes would be aesthetically more attractive than what existed on the locus at the times of the public hearing and trial. See DiRico v. Board of Appeals of Quincy, 341 Mass. 607, 609--610, 171 N.E.2d 144 (1961); BRODERICK V. BOARD OF APPEAL OF BOSTON, MASS., 280 N.E.2D 670.^B Although there was no evidence that the proposed use would cause specific injury to any of the nearby or surrounding properties (compare Sherman v. Board of Appeals of Worcester, 354 Mass. 133, 135--136, 235 N.E.2d 800 (1968); BRODERICK V. BOARD OF APPEAL OF BOSTON, MASS., 280 N.E.2D 670;^C contrast Cary v. Board of Appeals of Worcester, 340 Mass. 748, 752--753, 166 N.E.2d 690 (1960)), we cannot overlook the fact that '(t)he introduction of a new business enterprise to a residence area . . . is commonly conceded to have a marked depreciating effect upon the value of neighboring residential property for residential uses.' DiRico v. Board of Appeals of Quincy, 341 Mass. 607, 610, 171 N.E.2d 144, 145 (1961).

We cannot ignore the predominantly residential character of the neighborhood. Compare Bicknell Realty Co. v. Board of Appeal of Boston, 330 Mass. 676, 677--678, 116 N.E.2d 570 (1953); Atherton v. Board of Appeals of Bourne, 334 Mass. 451, 452, 454--455, 136 N.E.2d 201 (1956); Benjamin v. Board of Appeals of Swansea, 338 Mass. 257, 259--260, 261--262, 154 N.E.2d 913 (1959); Stark v. Board of Appeals of Quincy, 341 Mass. 118, 121, 167 N.E.2d 611 (1960); DiRico v. Board of Appeals...