Shacka v. Board of Appeals of Chelmsford

• Decision Date: 03 January 1961
• Citation: 171 N.E.2d 167,341 Mass. 593
• Parties: Louise H. SHACKA et al. v. BOARD OF APPEALS OF CHELMSFORD et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 167

171 N.E.2d 167

341 Mass. 593

Louise H. SHACKA et al. v. BOARD OF APPEALS OF CHELMSFORD et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Nov. 9, 1960.

Decided Jan. 3, 1961.

P. Harold Ready, Lowell (Maurice Barlofsky, Lowell, with him), for plaintiffs.

Vernon R. Fletcher, Chelmsford, for intervener.

Before WILKINS, C. J., and SPALDING, WILLIAMS, WHITTEMORE, and CUTTER, JJ.

WHITTEMORE, Justice.

The decree in the Superior Court upholding the grant of a variance was in error.

The evidence shows that the applying owner, the intervener, had purchased the property at 46 Gorham Street, Chelmsford, on a 'main highway,' as a site for an automobile service station, a use not permitted in this general residence district. For seventeen years the intervener had operated a service station at 15 Gorham Street on land being taken for State highway purposes. The new site was ordinary, flat grassland, suitable for almost any purpose, and was the only place for a station which the intervener could find. In the one mile length of Gorham Street between the Billerica and Lowell lines, there were nine properties used for business.

The judge found in substance that the intervener had been forced to vacate his former site, his new business would be a convenience and benefit to the area, and the area along the street had tended markedly to change to varied commercial use, many residences having been adapted thereto. The judge also found, substantially in the words which state a part of the statute's requirements for a variance (G.L. c. 40A, § 15), that '[o]wing to conditions especially affecting the property here involved but not affecting generally the zoning district in which it is located * * * a literal enforcement of the * * * [by-law] would involve substantial hardship to the applicant Ferreira.'

This conclusion was not justified by the facts and subsidiary findings. No hardship to the intervener is shown which is 'owing to conditions especially affecting' his property and 'not affecting generally the zoning district in which it is located.' The hardship caused by the taking of the former site is irrelevant. Planning Board of Springfield v. Board of Appeals of Springfield, 338 Mass. 160, 165-166, 154 N.E.2d 349; Cary v. Board of Appeals of Worcester, Mass., 166 N.E.2d 690. ¹ The change in character of the neighborhood is not one 'especially affecting such parcel.' Compare Rodenstein v. Board of Appeal of Boston, 337 Mass. 333, 335, 149 N.E.2d 382; Cary v. Board of Appeals of Worcester, Mass., 166 N.E.2d 690. ² The change, as the judge found, affects all the nearby area 'along Gorham Street.' We need not determine whether, to satisfy the statute, the special effect, as the plaintiffs contend, must in every case be unique to the single parcel owned by the applicant. Even though the trend to commercial use may not affect all the residence district in which the property is located, its effect is general.

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