Rodenstein v. Board of Appeal of Boston
| Decision Date | 10 April 1958 |
| Citation | 337 Mass. 333,149 N.E.2d 382 |
| Parties | Harry RODENSTEIN and Bessie Rodenstein, his wife, v. BOARD OF APPEAL OF BOSTON and Park Central Realty, Inc. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Simon B. Stein, Boston, for plaintiffs.
William D. Quigley, Asst. Corp. Counsel, Dorchester (Edward F. McLaughlin, Jr., Boston, with him), for defendants.
Before WILKINS, C. J., and RONAN, SPALDING, COUNIHAN and WHITTEMORE, JJ. COUNIHAN, Justice.
This is a bill in equity filed in the Superior Court by way of appeal under the zoning law of Boston, St.1924, c. 488, § 19, as appearing in St.1941, c. 373, § 18, from a decision of the board of appeal granting a variance to permit the parking of thirty pleasure automobiles for a fee in a residential district lot upon certain conditions imposed by the board. A judge of the Superior Court heard the case de novo and found that the variance duly authorized and voted by the board of appeal was warranted. A final decree was entered that the decision of the board of appeal was within its jurisdiction and that no modification of it is required. The case comes here upon the plaintiffs' appeal. There was no error.
The evidence is reported and the judge made a complete and adequate 'Memorandum of Findings and Order for Decree' which we treat as a report of material facts. Plans and photographs of the locus were in evidence and are before us. We also have as an exhibit the decision of the board of appeal.
In these circumstances it has so frequently been stated that no citation of authority is necessary that all questions of law, fact, and discretion are open for review by us and we can make findings in addition to those made by the trial judge, but we do not disturb his findings of fact unless they appear to be plainly wrong.
We summarize the facts found by the judge. The entire lot owned by the defendant Park Central Realty, Inc., comprises 20,883 square feet and is located in the Grove Hall section of Roxbury close to the Dorchester line. It is bounded on the west by Blue Hill Avenue, on the north by Pasadena Road, on the east partly by land of the plaintiffs, and on the south by Seaver Street.
The locus upon which the present variance is sought is located in the northerly part of the entire lot. For about 100 feet it abuts the property of the plaintiffs on the east.
This entire lot was originally in zone R-65 and was restricted to use as residential property. As of prior dates, namely, December 29, 1944, and May 10, 1950, variances were granted by decisions of the board of appeal to permit the use of the larger part of the lot for a gasoline filling station and parking of automobiles being serviced at the station under certain restrictions. As a result Park Central Realty, Inc., built and has maintained a large filling station on part of the lot.
The record of the proceedings before the board of appeal in the instant case makes it clear that the objections to the granting of the variance sought were thoroughly inquired into by the members of the board who also took a view of the premises. All of the land in the immediate neighborhood of this lot, on both sides of Blue Hill Avenue, Seaver Street and Pasadena Road, has been developed as residential property. Blue Hill Avenue is a heavily travelled street.
The board of appeal found that a variance of the zoning law to permit parking on the smaller part of this lot will be a distinct benefit to the public good rather than a detriment since it will provide off street parking in a highly congested section of Boston. It also found that the premises for which a variance is sought cannot possibly be used for the uses permitted in an R-65 district. It was of opinion that this is a specific case where a literal enforcement of the law involves a substantial hardship upon the owner and where desirable...
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