Sherman v. Board of Appeals of Worcester

• Decision Date: 03 April 1968
• Citation: 354 Mass. 133,235 N.E.2d 800
• Parties: Joseph SHERMAN et al. v. BOARD OF APPEALS OF WORCESTER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 800

235 N.E.2d 800

354 Mass. 133

Joseph SHERMAN et al. v. BOARD OF APPEALS OF WORCESTER et al.

Supreme Judicial Court of Massachusetts, Worcester.

Argued March 5, 1968.

Decided April 3, 1968.

Harry Zarrow, Worcester, (Edward D. Simsarian, Worcester, with him) for plaintiffs.

William T. Buckley, Worcester, for WNEB, Inc. (Henry P. Grady, Asst. City Solicitor, for the City of Worcester, with him).

WILKINS, C.J., and WHITTEMORE, CUTTER, KIRK and SPIEGEL, JJ.

CUTTER, Justice.

The plaintiffs by this bill in equity (G.L. c. 40A, § 21, as amended) seek to set aside a decision of the Worcester board of appeals granting a variance to WNEB, Inc. (WNEB), with respect to 5.61 acres of unimproved land (the locus). The locus is in an RS--7 Residential district. WNEB proposes to use the land for a radio tower 200 feet high and for a small building (for transmitting equipment) occupying ground space of eighteen feet by twelve feet. The zoning ordinance does not permit the maintenance of a radio transmitting station in such a district without a variance.

The board of appeals, after somewhat meager subsidiary findings, made the necessary findings to meet the statutory requirements. G.L. c. 40A, § 15 (as amended through St. 1958, c. 381). The trial judge, however, made thorough, detailed findings and concluded that 'literal enforcement of the (z)oning (o) rdinance * * * would involve substantial hardship to WNEB * * * owing to conditions especially affecting the * * * (locus) but not affecting generally the (RS)7 zoning district * * * and that the * * * variance may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of the * * * (o)rdinance.' The plaintiffs, owners of land near the locus, appealed from the final decree that the board did not exceed its authority in granting the variance. The judge adopted (with minor modifications) his findings as a report of material facts. The evidence is reported. The judge took a view of the area.

WNEB has operated a limited range radio station in downtown Worcester. Its transmission station has been taken by eminent domain for a redevelopment project. To meet Federal requirements, it must relocate its transmission tower in the northwesterly part of Worcester. The locus is the only parcel which meets WNEB's needs.

The locus is irregular in shape with sides about 247 feet, 693 feet, 555 feet, and 570 feet, respectively. The city acquired the parcel in 1943 and placed it under the Park Commission. WNEB in 1966 negotiated an option to purchase the locus for $12,000. Its new facilities there will cost a total of about $35,000. Sale of the land to WNEB has been authorized by special act. St. 1967, c. 319.

The zoning ordinance allows in an RS--7 district (primarily a single family residence area with minimum lots of 7,000 square feet) single family houses, on-campus dormitories, schools, colleges, churches, nonprofit recreational facilities, and public service buildings, including transformer substations, ¹ fire and police stations, and pumping stations. By special permit, certain multiple residence conversions, clubs, and cemeteries also may be allowed.

The entire RS--7 district (at the edge of which the locus lies), ² consists of about 100 acres. Most of the area is fully developed, principally for single family dwellings. The locus lies at a lower elevation than all other land in the district and is the 'ultimate drain point for all water' in the immediate area. There have never been buildings on the locus and it has been used by the city and others for dumping rubbish and waste material. Pictures in evidence show the area to be wholly undeveloped and in a state of considerable disorder. It is covered with nondescript weeds, trees, and growth and contains wet or damp spots where the water level is close to the surface. The soil for the top few feet is loamy sand which covers deep peat or silt. In 1959, the city had tests made to see whether it was feasible to build a high school in the area of which the locus is a part. It was discovered that because of soil conditions it would be expensive to do so. The Park Department has never developed the area for park or recreation use. To do so would present drainage problems and require expensive fill. Soil conditions make the locus unattractive to residential developers. A house, which elsewhere would cost $15,000, by the soil problems of the locus would have $6,000 to $8,000 added to the price. These conditions make it a hardship to any owner of the locus to have the zoning regulations applied to it. Such application of the ordinance...