Josephs v. Board of Appeals of Brookline

• Decision Date: 06 July 1972
• Citation: 362 Mass. 290,285 N.E.2d 436
• Parties: Emanuel 1. JOSEPHS et al. v. BOARD OF APPEALS OF BROOKLINE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 436

285 N.E.2d 436

362 Mass. 290

Emanuel 1. JOSEPHS et al. v. BOARD OF APPEALS OF BROOKLINE et al.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued May 5, 1972.

Decided July 6, 1972.

Mark A. Michelson, Boston, for plaintiffs.

John M. Kahn, Boston, for defendants.

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

HENNESSEY, Justice.

The plaintiffs appeal from a final decree in the Superior Court sustaining a decision of the board of appeals of Brookline (board) granting a variance and four special permits to a developer, B & L Associates (B & L). The judge heard evidence, took a view of the locus, and filed a report of material facts. The evidence is not reported.

The facts are here stated. B & L seeks to construct a high rise building at 1550 Beacon Street. As modified to comply with conditions imposed by the board, the proposed building is to be fifteen stories high and will containn 203 units of low and moderate income apartments for the elderly, medical offices for not more than fifteen physicians or dentists, and automobile parking stalls for the apartments and the medical offices. The locus, a vacant parcel consisting of 37,103 square feet, forms a triangle, bounded by Lancaster Terrace on the north, Beacon Street on the south, and the boundary of a lot occupied by Temple Beth Zion on the west. The area in which the building is to be erected is composed primarily of multistory apartment dwellings.

Subject to certain conditions, the board granted B & L one variance and four special permits, all of which are challenged in this proceeding. The judge entered a final decree that the board's decision did not exceed its authority. Since the evidence is not reported, the only issues presented are whether the board and the judge made specific findings demonstrating that the statutory and by-law prerequisites had been met. Goldston v. Randolph, 293 Mass. 253, 255, 199 N.E. 896; Bottoms v. Carlz, 310 Mass. 29, 32, 36 N.E.2d 379; Planning Bd. of Springfield v. Board of Appeals of Springfield, 355 Mass. 460, 462, 245 N.E.2d 454. We conclude that the final decree was correct only as to the variance, and was in error as to the special permits.

1. We first consider the board's action in granting the variance. General Laws c. 40A, § 15, cl. 3, as amended, authorizes local boards of appeal to grant variances from the terms of the zoning by-law 'where, owing to conditions especially affecting such parcel . . . but not affecting generally the zoning district in which it is located, a literal enforcement of the provisions of the . . . by-law would involve substantial hardship, financial or otherwise to the appellant, and where desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of such . . . by-law.'

This court has repeatedly emphasized the stringency of the requirements set out in § 15, cl. 3. Zinck v. Zoning Bd. of Appeals of Framingham, 345 Mass. 394, 187 N.E.2d 665; Russell v. Zoning Bd. of Appeals of Brookline, 349 Mass. 532, 209 N.E.2d 337; McNeely v. Board of Appeal of Boston, 358 Mass. 64, 261 N.E.2d 336; DAMASKOS V. BOARD OF APPEAL OF BOSTON, MASS., 267 N.E.2D 897.^A Furthermore, we have stated that 'a decision of the board of appeals granting a variance cannot stand unless the board specifically finds that each statutory requirement has been met.' Planning Bd. of Springfield v. Board of Appeals of Springfield, 355 Mass. 460, 462, 245 N.E.2d 454, 456, and cases cited. On appeal from the board's decision, it is the judge's duty to determine the facts for himself, to apply the governing principles of law, and then to inspect the decision of the board and enter such decree as justice and equity may require. Blackman v. Board of Appeals of Barnstable, 334 Mass. 446, 449, 136 N.E.2d 198. The judge, like the board of appeals, may uphold the variance only if he finds that the prerequisites of § 15, cl. 3, have been met. Coolidge v. Zoning Bd. of Appeals of Framingham, 343 Mass. 742, 180 N.E.2d 670; Planning Bd. of Springfield v. Board of Appeals of Springfield, 355 Mass. 460, 462, 245 N.E.2d 454. With these principles in mind, we conclude that the final decree was correct in so far as it ruled that the board had not exceeded its authority in granting the variance.

Section 6.21(a) of the Brookline zoning by-law requires that a loading bay fourteen feet in height be provided in all buildings containing offices. In this case, the variance granted by the board permits B & L to construct a loading bay with a height of ten feet. Although the findings of the board as to the loading bay were meager, we conclude that they were legally sufficient in that they found compliance with § 15, cl. 3, both in terms of the statutory language and in a recitation of the applicable facts concerning the property here concerned.

In ruling that the board did not exceed its authority in granting the variance, the judge concluded that all the requirements of § 15, cl. 3, had been met. His findings on the issue are here summarized. The locus is roughly triangular in shape and slopes downward north to south and from west to east. While much of the zoning district in which the locus is situated is hilly and sloping, the locus involved is the only parcel of comparable size in the area which is now vacant and which is not essentially rectangular in shape. Because of the peculiar topography of the locus, if will be necessary to construct the off street loading bay on Lancaster Terrace. If a loading bay of fourteen feet in height is required, the judge found that it would be necessary 'either to depress the level of the roadway in relation to the record grade or to maintain record grade and extend the height of the bay into the story above.' The first alternative would create an excessively steep access ramp from the bay to the street and present hazards to persons using the ramp. The second alternative would interfere with the use of the space within the building and would result in an economic loss. On these findings, the judge was warranted in concluding that a 'hardship, financial or otherwise' would result from literal enforcement of the fourteen foot by-law requirement and that the hardship is due to 'conditions especially affecting such parcel . . . but not . . . generally the zoning district in which it is located.' G.L. c. 40A, § 15, cl. 3. Kairis v. Board of Appeal of Cambridge, 337 Mass. 528, 530--532, 150 N.E.2d 278; Planning Bd. of Springfield v. Board of Appeals of Springfield, 338 Mass. 160, 165--166, 154 N.E.2d 349; Shacka v. Board of Appeals of Chelmsford, 341 Mass. 593, 595, 171 N.E.2d 167; Broderick v. Board of Appeal of Boston, Mass., ^b 280 N.E.2d 670. The judge also justifiably found that because trucks using the bay will be off the street entirely and because of the bay's location and design, a reduction in height 'will have no effect upon the abutting properties and, hence, this reduction will not nullify or derogate from the intent or purpose of the by-law.' Reading his findings fairly in their entirety, we conclude that he also found that the variance here was granted without substantial detriment to the public good, and this finding was warranted by the evidence.

2. We turn now to a consideration of the special permits granted by the board.

General Laws c. 40A, § 4, as amended, provides the statutory authority for the granting of special permits. That section states, in part, '(a) zoning ordinance or by-law may provide that exceptions may be allowed to the regulations and restrictions contained therein, which shall be applicable to all of the districts of a particular class and of a character set forth in such ordinance or by-law. Such exceptions shall be in harmony with the general purpose and intent of the ordinance or by-law and may be subject to general or specific rules therein contained. The board of appeals . . . may, in appropriate cases and subject to appropriate conditions and safeguards, grant to an applicant a special permit to make use of his land or to erect and maintain buildings or other structures thereon in accordance with such an exception' (emphasis added).

We have on numerous occasions stated that in granting special permits under § 4 the board's power is discretionary. Gulf Oil Corp. v. Board of Appeals of Framingham, 355 Mass. 275, 277, 244 N.E.2d 311, and cases cited. Zaltman v. Board of Appeals of Stoneham, 357 Mass. 482, 484--485, 258 N.E.2d 565; Strazzulla v. Building Inspector of Wellesley, 357 Mass. 691, 698, 260 N.E.2d 163. That discretion, however, is not without limits. The Zoning Enabling Act and the local by-laws must provide adequate standards for the guidance of the board in deciding whether to grant or withhold special permits. MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635, 638, 255 N.E.2d 347. Furthermore, as is the case where the granting of a variance is involved, the board, when granting a special permit, must set forth 'clearly the reason or reasons for its decisions' that the applicable statutory and by-law standards have been met. G.L. c. 40A, § 18, as amended. Gaunt v. Board of Appeals of Methuen, 327 Mass. 380, 381--382, 99 N.E.2d 60; Cities Serv. Oil Co. v. Board of Appeals of Bedford, 338 Mass. 719, 728, 157 N.E.2d 225. Otherwise, 'zoning regulations can become a matter of administrative whim.' DAMASKOS V. BOARD OF APPEAL OF BOSTON, MASS., 267 N.E.2D 897^C.

On appeal to the Superior Court, the judge is required to hear the matter de novo and determine the legal validity of the decision of the board upon the facts found by him. G.L. c. 40A, § 21. Lawrence v. Board of Appeals of Lynn, 336 Mass. 87, 89, 142 N.E.2d 378, and cases cited. In making his findings, the judge is not allowed to give the board's findings or decision evidentiary weight (Devine v. Zoning Bd. of Appeals of Lynn, 332 Mass. 319, 321--322, 125 N.E.2d 131...