Moore v. Cataldo

• Decision Date: 01 July 1969
• Citation: 249 N.E.2d 578,356 Mass. 325
• Parties: William R. MOORE et al. v. Robert CATALDO et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 578

249 N.E.2d 578

356 Mass. 325

William R. MOORE et al. v. Robert CATALDO et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued April 8, 1969.

Decided July 1, 1969.

Albert P. Zabin, Boston, for plaintiffs.

Harold E. Stevens, Boston, for Robert Cataldo and another.

Donald E. Legro, Town Counsel, for the Board of Appeals of Lexington, joined in a brief.

Before WILKINS, C.J., and SPALDING, CUTTER, KIRK and SPIEGEL, JJ.

SPALDING, Justice.

The plaintiffs appeal from a final decree sustaining a decision of the board of appeals (board) of Lexington granting a special permit to two of the defendants. The judge, who took a view of the area involved, made a report of material facts. The evidence is reported.

The defendant Ray Howland, Jr., on behalf of himself and his partner, the defendant Robert Cataldo, filed a petition with the board for permission to build and operate a nursing home on a parcel of land of eleven acres located on Bryant and Emerson Roads. ¹ This land, which is in a single family residential district, is bounded on the west by a development of garden apartments and on the south by a large, undeveloped tract of land belonging to the town of Arlington. On the north and east, the locus is bounded by a neighborhood of single family houses. All of the plaintiffs live in this neighborhood, but each lives at least 400 feet from the locus and 600 feet from the front of the proposed nursing home. This proposed building was to extend 300 feet in length and contain 160 beds.

After notice and a public hearing, the board granted a special permit to Howland to build and operate a nursing home, subject to certain terms and conditions. One of the permit's conditions was that 'The building shall be so staffed as to qualify for Medicare patients.' The plaintiffs appealed this decision to the Superior Court, ² but the judge upheld the board's decision. The evidence introduced at trial will be further discussed in part 3 of this opinion.

1. The plaintiffs contend that the board's decision was void on the ground that the notice of the public hearing was inadequate. Notice 'of the time and place of such hearing * * * and of the subject matter, sufficient for identification's must be published in a newspaper and be sent by mail to affected property owners. G.L. c. 40A, §§ 4 and 17. The failure to satisfy the provisions concerning notice ordinarily will make the board's action invalid and without effect. See Rousseau v. Building Inspector of Framingham, 349 Mass. 31, 37, 206 N.E.2d 399, and cases cited; Gallagher v. Board of Appeals of Falmouth, 351 Mass. 410, 414, 221 N.E.2d 756. We are of opinion, however, that the published notice, which stated that the board would hold a hearing on Howland's petition 'to construct and operate a nursing home on a parcel of land situated on Bryant Road and Emerson Road and shown on plan filed herewith,' was sufficient.

The dominant 'design (of the zoning laws) is to stabilize property uses in the specified districts * * * and not to permit changes, exceptions or relaxations except after such full notice as shall enable all those interested to know what is projected and to have opportunity to protest.' Kane v. Board of Appeals of City of Medford, 273 Mass. 97, 104, 173 N.E. 1, 3. The plaintiffs contend that the notice was inadequate because it failed to indicate the size of the building and the number of patients it would accommodate. But this failure did not invalidate the notice. In Carson v. Board of Appeals of Lexington, 321 Mass. 649, 75 N.E.2d 116, the notice stated that the petition was for the 'erection and maintenance of (a) garage.' We held that the notice was sufficient and the permit for a garage to hold sixteen buses was valid, even though neither the notice nor the petition disclosed the size of the proposed garage. Carson v. Board of Appeals of Lexington, supra, at 653, 75 N.E.2d 116. The plaintiffs' reliance on Kane v. Board of Appeals of City of Medford, 273 Mass. 97, 173 N.E. 1, is misplaced, since there the defective notice contained no intimation of the use to which the proposed building was to be put. In contrast, the notice here clearly indicated that the proposed building would be used as a nursing home.

2. General Laws c. 40A, § 4, states, 'A zoning ordinance or by-law may provide that exceptions may be allowed to the regulations and restrictions * * *. 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.' The board of appeals has the power under G.L. c. 40A, § 15, cl. 2, to hear and decide applications for such special permits. Pursuant to these statutory provisions, § 5 of Lexington's zoning by-law authorizes a nursing home to be conducted in a single residence district if the board gives permission. Section 14 provides that the board may grant such permission when in its judgment 'the public convenience and welfare will be substantially served and where a requested permit will not tend to impair the status of the neighborhood.'

The plaintiffs suggest that the permit was invalid because neither the decision of the board nor the judge established under G.L. c. 40A, § 4, that the nursing home would be 'in harmony with the general purpose and intent' of the zoning by-law. But this was not an application for a variance under c. 40A, § 15, which imposes more stringent statutory limitations. See Lawrence v. Board of Appeals of Lynn, 336 Mass. 87, 89--90, 142 N.E.2d 378. Rather, it was an application for a special permit for an exception permitted under the by-law, and the specific statutory conditions applicable to variances need not be satisfied. Todd v. Board of Appeals of Yarmouth, 337 Mass. 162, 168, 148 N.E.2d 380. Both the board and the judge found that 'the public convenience and welfare will be substantially served' and that the nursing home 'will not tend to impair the status of the neighborhood.' These findings satisfied the requirement of § 14 of the by-law and were sufficient to support the granting of the permit. Carson v. Board of Appeals of Lexington, 321 Mass. 649, 654, 75 N.E.2d 116.

3. The remaining issue is whether there was sufficient evidence to support the judge's conclusion that the...