Kiss v. Board of Appeals of Longmeadow

• Decision Date: 05 October 1976
• Citation: Kiss v. Board of Appeals of Longmeadow, 371 Mass. 147, 355 N.E.2d 461 (Mass. 1976)
• Parties: William D. KISS v. BOARD OF APPEALS OF LONGMEADOW et al. (and two companion cases 1 ).
• Court: Supreme Judicial Court of Massachusetts

Page 461

355 N.E.2d 461

371 Mass. 147

William D. KISS

v.BOARD OF APPEALS OF LONGMEADOW et al. (and two companion

cases¹).

Supreme Judicial Court of Massachusetts, Hampden.

Argued Jan. 8, 1976.

Decided Oct. 5, 1976.

Bernard Glazier, Springfield (Dana M. Goldman, Springfield, with him), for William D. Kiss; Abraham M. Bussel, Holyoke, for Michael Graziano and another, also with him.

Joseph D. Rosenbloom, Springfield, for Leo J. Shapiro and others.

Philip J. Shine, pro se.

Before REARDON, QUIRICO, BRAUCHER, KAPLAN and WILKINS, JJ.

QUIRICO, Justice.

On August 14, 1974, the board of appeals of the town of Longmeadow(board) granted a special permit to Leo J. Shapiro, Shephard Cohen and Leo Grillo(herein collectively referred to as Shapiro) for the use of land in a residence zone for the construction of a building to house an eight court indoor tennis facility to be operated by the Meadows Racquet Club, a club not conducted for profit.On August 28, 1974, the board granted a special permit to Philip J. Shine(Shine) for the use of another parcel of land in a residence zone for the construction of an eight court indoor tennis facility to be operated by the Longmeadow Racquet Club, Inc., also a club not conducted for profit.The plaintiffWilliam D. Kiss entered separate complaints in the Superior Court appealing the granting of the two special permits, and the plaintiffsMichael Graziano and Robert J. Diamond filed a single complaint in the same court appealing only the granting of the special permit to Shine.²Thereafter all three cases were transferred to the Housing Court of the County of Hampden pursuant to G.L. c. 185B, § 22, inserted by St.1973, c. 591, § 1.

The action involving the Shapiro permit was tried first, and the two actions involving the Shine permit were then tried together in a second trial.Both trials were before the same judge of the Housing Court who then disposed of all three actions by a single decision followed by the entry of a judgment in each of the three actions affirming the decision of the board and dismissing the appeal.The appeals by the plaintiffs in all three actions are now before us for decision.G.L. c. 185B, § 26, inserted by St.1973, c. 591, § 1.We hold that the judgments entered in these actions in the Housing Court were correct, subject to a minor revision in form.

In accordance with the Massachusetts Rules of Appellate Procedure, the record on appeal in each of these three cases includes the complaint and answer, the judge's findings of fact, conclusions of law, an order for judgment, the final judgment and the appeal therefrom, the exhibits and the transcript of the proceedings.Mass.R.A.P. 8(a), Mass.(1975).To the extent that these rules require the parties to reproduce and file any portions of the transcript and exhibits on which they intend to rely, they have not complied therewith.Mass.R.A.P. 8(b), 18(a) and (e), 365 Mass. 850, 864(1974).'The fact that parts of the record are not included in the appendix shall not prevent the parties or the court from relying on such parts; provided that the court may decline to permit the parties to refer to portions of the record omitted from the appendix, unless leave be granted prior to argument.'Mass.R.A.P. 18(a), 365 Mass. 864(1974).No such leave was sought or granted.

The trial judge, in his written decision, made careful and detailed findings of subsidiary facts on the basis of which he made further specific conclusions supporting his decision in favor of the applicants for the special permits.He also treated and disposed of a number of legal issues raised at the trial before him.It is sufficient for the purposes of this decision to state that it is our opinion that the evidence supports the subsidiary facts found by the judge, that the subsidiary findings support his ultimate conclusions, and that his subsidiary and ultimate findings are sufficient to support his decision and the judgments for the defendants.No useful purpose would be served by repeating all of the judge's findings and rulings, but a brief summary thereof may be helpful.Facts relating to specific issues will be stated to the extent necessary for the resolution of those issues.

Shapiro's parcel consists of about 15.227 acres of land at the corner of Dwight Road and Converse Street and he has applied for and been granted a special permit by the board to use about 6.843 acres of that land for the eight court indoor tennis facility described above.Shine has contracted to purchase about forty acres of land located on Wolf Swamp Road, and he has applied for and been granted a special permit by the board to use eleven acres of that land for the eight court indoor tennis facility described above.A portion of the Shine application relating to outdoor tennis courts and a swimming pool was denied.All of the land owned or under contract of purchase by the defendants is zoned residence A--2 under the zoning by-law of the town of Longmeadow(town).

Land classified as residence A--2 is in the highest and most restricted residential zone in the town.It permits as of right the use of the land for single family residences and certain uses related thereto, and it also permits as of right the use for a church, religious or denominational educational building, public school, library, museum, park, playground or recreational building, and municipal buildings and facilities.The by-law further provides that the board may in its discretion and in appropriate cases, and subject to appropriate conditions grant special permits for certain specified uses, including use for a 'club not conducted for profit.'Zoning By-Law, town of Longmeadow, art. IV, § B, cl. 6.2.The by-law does not define the phrase 'club not conducted for profit.'

Shapiro and Shine each filed an application with the board for a special permit for use of the specified portion of his premises for the construction of tennis and related facilities and for the operation of those facilities by a club, the Shapiro application referring to 'a nonprofit making club to be formed,' and the Shine application to 'a club not conducted for profit.'The board scheduled and held a public hearing on the applications as required by G.L. c. 40A, § 4, after notice thereof was duly given as required by G.L. c. 40A, § 17.Both applications were heard at a single hearing which was attended by about 300 persons.The board took the two applications under advisement and later, by separate decisions, granted the two special permits for the indoor tennis facilities and imposed certain 'conditions and safeguards' which are reproduced in the margin of this opinion.³

After hearing the parties and their witnesses, the judge found, ruled and decided generally that the board had complied with the provisions of G.L. c. 40A, § 4, in its handling of the applications for and the issuance of the special permits, that the facilities covered by the special permits will be operated by clubs incorporated under G.L. c. 180, that the clubs are 'clubs not conducted for profit' within the meaning of the zoning by-law, and that 'the facilities and their operation will not cause undue traffic, create a noise, or create any other form of pollution or nuisance and that the operation of the clubs will generally be consistent with the permitted or incidental uses in residential zones.'

The plaintiffs in appealing from the judgments against them contend basically that the board exceeded its authority in granting the two special permits and they base that contention on the several grounds which we shall now consider.

1.Character of Proposed Use.The plaintiffs contend that since '(t)here is . . . nothing expressly covering the use similar to the character of a tennis facility within the zoning by-law' the special permits are invalid.That is not the proper test of validity of such a permit.General Laws c. 40A, § 4, inserted by St.1954, c. 368, § 2, states, '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 established under section fourteen of such city or town . . . 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.'The board has the power, under G.L. c. 40A, § 15(2), '(t)o hear and decide applications for special permits for exceptions as provided in section four upon which such board is required to pass.'

We have had occasion in a number of our decisions to point out the difference between the granting of a variance on the one hand and the granting of a special permit on the other, to point out the criteria governing the action of a board in granting a special permit, and to emphasize the fact that those criteria are less stringent than those involved in an application for a variance.Josephs v. Board of Appeals of Brookline, 362 Mass. 290, 291--295, 285 N.E.2d 436(1972).Moore v. Cataldo, 356 Mass. 325, 327--328, 249 N.E.2d 578(1969).Wrona v. Board of Appeals of Pittsfield, 338 Mass. 87, 88--90, 153 N.E.2d 631(1958).Todd v. Board of Appeals of Yarmouth, 337 Mass. 162, 167--168, 148 N.E.2d 380(1958).Lawrence v. Board of Appeals of Lynn, 336 Mass. 87, 89--90, 142 N.E.2d 378(1957).Carson v. Board of Appeals of Lexington, 321 Mass. 649, 652--655, 75 N.E.2d 116(1947).Much of the argument addressed to us on this point seems to go to the wisdom of the board's action in granting the special permits.We may not concern ourselves with...