Raia v. Board of Appeals of North Reading

• Decision Date: 27 May 1976
• Parties: Salvatore RAIA v. BOARD OF APPEALS OF NORTH READING et al. 1
• Court: Appeals Court of Massachusetts

Page 694

347 N.E.2d 694

4 Mass.App.Ct. 318

Salvatore RAIA

v. BOARD OF APPEALS OF NORTH READING et al. ¹

Appeals Court of Massachusetts, Middlesex.

Argued April 13, 1976.

Decided May 27, 1976.

Normand R. D'Amour, Lowell, for plaintiff.

Anthony D. Murphy, North Reading, for John J. Hashem.

Before HALE, C.J., and GRANT and ARMSTRONG, JJ.

HALE, Chief Justice.

This is an appeal brought by means of a bill in equity pursuant to G.L. c. 40A, § 21, as amended through St.1972, c. 334, by an abutter who seeks to annul a zoning variance granted by the board of appeals of the town of North Reading. We summarize the findings of fact made by the judge.

The subject lot was purchased by a married couple in March, 1967, at some time after they had purchased an adjoining lot which contained their residence. The two lots were separate and distinct before the purchase, and each had a frontage of 125 feet. The plaintiff's abutting lot had the same frontage. At that time the applicable zoning by-law required a minimum frontage of 125 feet. The couple sold the subject lot to the present owner, one Hashem, in October, 1972. At that time the minimum frontage requirement was 160 feet.

Hashem made arrangements with a contractor to build a single-family residence on the subject lot. A building permit was obtained on October 17, 1972, and a foundation was poured. The building inspector subsequently informed Hashem that the permit was revoked, as the lot failed to conform to the them minimum frontage requirement of 160 feet. Hashem then applied to the board of appeals for a variance in order to construct a single-family residence, and the variance was granted. The board found substantial hardship because (1) 'unless a single family home is built on this lot, the lot is useless to the owner for any building purpose;' (2) over $10,000 had been spent to purchase the property and erect a foundation, and for other expenses; and (3) a loss would result if the foundation should have to be removed. The board found that there would be no substantial detriment to the public good, as the area contained only single-family residences, the four closest lots also had a 125 foot frontage, and the granting of a variance would result only in the construction of a new residence on a vacant lot. ²

A judge of the Superior Court upheld the granting of a variance, stating, 'I rule that the board made the requisite findings mandated by § 15 of c. 40A of the General Laws, and find that these requisite preliminary conditions exist. I find and rule that owing to conditions especially affecting the subject parcel, there is substantial hardship to the parcel if the variance is not granted to build a single family residence, since the parcel cannot be used for any other purpose. I rule that there was no abuse of discretion by the board in granting the subject variance.'

1. We must first examine Hashem's contention that the appeal to the Superior Court should have been dismissed as he was not given written notice within the time required by G.L. c. 40A, § 21, as amended through St.1972, c. 334. That section required a person, other than the original applicant for a variance, who brought a bill in equity to annul the variance to name the original applicant as a party respondent. It further stated, 'To avoid delay in the proceedings, instead of the usual service of process on a bill in equity, the plaintiff shall within fourteen days after the filing of the bill in equity give written notice thereof, with a copy of the bill by delivery or certified mail to all respondents, including the members of the board of appeals, and shall, within twenty-one days after the entry of the bill file with the clerk of the court an affidavit that such notice has been given. . . . ³ The plaintiff commenced this appeal by a timely filing of a bill in equity and written notice to all the parties respondent except Hashem. Hashem received notice of the action seventy-eight days after commencement. In PIERCE V. BOARD OF APPEALS OF CARVER, --- MASS. ---, 343 N.E.2D 412 (1976)^A, it was made clear that failure to give such notice within the time set out by G.L. c. 40A, § 21, does not deprive the Superior Court of jurisdiction to hear the appeal. ⁴ The court stated, quoting from Schulte v. Director of the Div. of Employment Security, --- Mass. ---, --- - ---, ^b 337 N.E.2d 677 (1975), 'Some errors or omissions are seen on their face to be so repugnant to the procedural scheme, so destructive of its purposes, as to call for dismissal of the appeal. . . . With respect to other steps in the procedure for judicial review, the judge is to consider how far they have interfered with the accomplishment of the purposes implicit in the statutory scheme and to what extent the other side can justifiably claim prejudice. After such an assessment, the judge is to decide whether the appeal should go forward without more, or on terms, or fail altogether.' Hashem raised the issue of the non-timely service by a plea in abatement which was overruled by a judge of the Superior Court. The record is devoid of evidence indicating prejudice to Hashem on account of the delay in service. We thus cannot say that the judge abused his discretion in refusing to sustain the plea in abatement.

2. The sole question remaining for our determination is whether the judge erred in 'sustaining' the granting of the variance on the ground of hardship. '(T)he burden rests upon the person seeking a variance and the board ordering a variance to produce evidence at the hearing in the Superior Court that the statutory prerequisites have been met and that the variance is justified.' Dion v. Board of Appeals of Waltham, 344 Mass. 547,...