Phillips v. Bd. of Appeals of Bldg. Dep't of Springfield
| Decision Date | 28 May 1934 |
| Parties | PHILLIPS v. BOARD OF APPEALS OF BUILDING DEPARTMENT OF CITY OF SPRINGFIELD. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Report from Supreme Judicial Court, Hampden County.
Petition by Alvin H. Phillips for a writ of certiorari to the Board of Appeals of the Building Department of the City of Springfield to quash a decision by the respondent board to vary the application of a zoning ordinance. The single justice, having ruled that the petition should be dismissed, reported the case.
Writ granted.
R. A. Bidwell and Charles W. Bosworth, both of Springfield, for petitioner.
C. V. Ryan, Jr., City Sol., and F. I. Gallagher, Asst. City Sol., both of Springfield, for respondents.
This is a petition for a writ of certiorari to quash a decison by the respondent board to vary the application of the zoning ordinance of Springfield with respect to a dwelling house in a residence district so that it may be used for an undertaking establishment. The single justice ruled that the petition should be dismissed, but at the request of the petitioner reported the case for determination by this court upon the petition, the return of the respondents, an agreed statement of facts, and his ruling.
It is conceded that the city of Springfield has adopted a zoning ordinance pursuant to the enabling statute. See G. L. (Ter. Ed.) c. 40, §§ 25 to 33. One of the zones thus established is known as Residence C District, from which in general buildings devoted to commercial uses are excluded. There has been compliance with all procedural requirement in respect to the application for variation of the zoning ordinance, notice and hearing thereon, and decision. At the hearing, some neighbors favored and others opposed the granting of the application.
The return of the respondent board sets out these facts: The property in question is owned by the trustees of Mount Holyoke College and consists of an extremely large brick house located on a spacious lot. Apparently it once was used as a fine residential estate. It has been idle for a long period of time. No one is interested in renting it as a residence or in buying it for a home. The property is located on a ‘Y’ formed by the junction of Armory and Federal streets. Federal street is comparatively short, begins and ends in a business neighborhood, and has on both sides for the greater portion of its length the United States Armory. On its westerly side and directly opposite the property in question is the coal pocket of the Armory. Only one or two of the fine old residences which made up the entire district now remain. There was evidence that the owner could not afford to carry the place in its present condition; that expertshad advised that the construction of an apartment house on the lot, which is permitted by the ordinance, would prove a loss to the college and a detriment to other apartment houses in the vicinity. No outside alterations in the building are planned. It is proposed, by means of an underground passage between the dwelling house and its garage, to remove from public view all objectionable sights connected with the business, if the proposed variation were granted. The respondent board, in deciding to grant the application for variation of the zoning ordinance, stated that it feels that it is decidedly an unnecessary hardship, at the present time, to force the petitioners to carry the property in its present state; more especially when they have an opportunity to lease or sell it to a reputable concern which will conduct a funeral home on the premises. In the opinion of the board, an undertaking business, although it has been held to be a ‘commercial enterprise,’ is on a little higher plane than most other ‘businesses.’ Funeral homes and the land surrounding them are notoriously well kept, probably as well kept as any private home or...
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