Lawrence v. Board of Appeals of Lynn

• Citation: 142 N.E.2d 378,336 Mass. 87
• Parties: Retta H. LAWRENCE et al. v. BOARD OF APPEALS OF LYNN et al.
• Decision Date: 13 May 1957
• Court: United States State Supreme Judicial Court of Massachusetts

Page 378

142 N.E.2d 378

336 Mass. 87

Retta H. LAWRENCE et al. v. BOARD OF APPEALS OF LYNN et al.

Supreme Judicial Court of Massachusetts, Essex.

Argued March 5, 1957.

Decided May 13, 1957.

Israel Bloch, Lynn, for plaintiffs.

John M. Fogarty, Lynn, for defendants Ahern (William F. Weber, City Sol. for Board of Appeals, Lynn, with him).

Before WILKINS, C. J., and RONAN, SPALDING, COUNIHAN and WHITTEMORE, JJ.

WHITTEMORE, Justice.

This is the plaintiffs' appeal from a decree of the Superior Court which sustained the decision of the defendant board of appeals of Lynn in granting to the defendants Walter F. and Catherine A. Ahern a permit to use an existing one-family dwelling at 444 Broadway, at Virginia Terrace, in a single residence district under the local zone ordinance, as a funeral home and for the services incident thereto. The plaintiffs are residents and landowners in the neighborhood, particularly on Virginia Terrace, a narrow, dead-end street. The evidence is reported.

Section 4 of the zone ordinance provides that permitted uses in single residence districts include 'subject to provisions of Section 23, paragraph H. funeral homes and services incident thereto.' Section 23 provides that 'When in its judgment the public convenience and welfare will be substantially served, and where such exception will tend to improve the status of the neighborhood, the Board of Appeals may on petition, after public notice, a hearing, and subject to such appropriate conditions and safeguards as it may impose, in specific cases determine and very the application of the district regulation[s] herein established in harmony with their general purpose and intent as follows: * * * (h) Grant permits for use of any building or dwelling in single residence, general residence, apartment house and restricted type apartment house districts for funeral homes and services incident thereto.'

This provision, in the form of the statement of the criteria for action, is similar to that before in court in Carson v. Board of Appeals of Lexington, 321 Mass. 649, 652, 75 N.E.2d 116. As we there pointed out, the case under such an ordinance or by-law is not one for a variance. The application to the board of appeals is for a permit under an exception which the ordinance or by-law has created. G.L.(Ter.Ed.) c. 40A, ¹ §§ 4, 15; Burnham v. Board of Appeals of Gloucester, 333 Mass. 114, 117-118, 128 N.E.2d 772.

The rule that the judge in the Superior Court is 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. (Ter.Ed.) c. 40A, § 21, Bicknell Realty Co. v. Board of Appeal of Boston, 330 Mass. 676, 679, 116 N.E.2d 570; Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555, 558-559, 120 N.E.2d 916, applies equally to cases like this where review is sought of action in respect of a special permit. Burnham v. Board of Appeals of Gloucester, 333 Mass. 114, 118-119, 128 N.E.2d 772; Lambert v. Board of Appeals of Lowell, 295 Mass. 224, 3 N.E.2d 784; Carson v. Board of Appeals of Lexington, 321 Mass. 649, 75 N.E.2d 116; Everpure Ice Mfg. Co., Inc., v. Board of Appeals of Lawrence, 324 Mass. 433, 86 N.E.2d 906.

But the stated criteria for determing the validity of the action of the board are not the same as in the case of an application for a variance and the relevant facts are fewer. In contrast to the severe statutory limitations on the exercise of the variance power (c. 40A, § 15) the only statutory limitations on exceptions are that they 'shall be applicable to all of the districts of a particular class and of a character set forth' in the ordinance or by-law and 'shall be in harmony with [its] general purpose and intent' (c. 40A, § 4). The local discretion is emphasized in the statutory permissions that such an exception 'may be subject to general or specific rules * * * contained [in the ordinance or by-law]' and that the 'board of appeals * * * may, in appropriate cases and subject to appropriate conditions and safeguards, grant * * * a special permit * * * in accordance with such an exception.'

Under this statutory authority and the particular ordinance the legal validity of the decision of the board turns on whether the applicable 'general or specific rules' have been properly applied.

The judge in the Superior Court found facts which are supported in the evidence as follows: The house is a large one, of ten rooms, 'really too large for a single residence, except under unusual circumstances * * *.' The Aherns will occupy as a residence the upper part of the house and there will be no substantial structural change in the building. There will be an increase in traffic and of vehicles and people. in the neighborhood. There are twenty-six children of tender age living in the residences on Virginia Terrace. A funeral home will adversely affect real estate values. '[T]here is always the question of the hazards of increased traffic.' He noted that in these aspects the funeral home would not tend to improve the status of the neighborhood, but observed also that those adverse factors apply to the coming of any funeral home anywhere and ruled that such factors could not be determinative for if they were there would be no sense in the provision of the zone ordinance allowing funeral homes in residence districts. He concluded, 'I find that the board acted within its rights in granting the application, in view of the somewhat peculiar situation of this property, as hereinbefore set forth. In addition thereto, the property situated on Broadway is fairly adjacent to a business district, a bank and a supermarket. On the whole, it seems to me that the board was warranted in finding that the status of the neighborhood would be improved by the establishment of a well-kept funeral home, rather than having the locus remain unoccupied and unsold until it became unsightly or a derelict in the neighborhood.'

The additional relevant facts shown on the evidence are these: Broadway is a wide street with much traffic but the traffic thereon is lightest at the time when services in the funeral home will normally be conducted. There will be no noise from a funeral home. 'Better than ninety-five per cent' of funerals 'are held from funeral homes today.' There are twenty-one such in Lynn. The nearest one is seven tenths of a mile away. From the photographs in evidence it can be reasonably concluded that the house was built some decades ago, and that the...