Shoppers' World, Inc. v. Beacon Terrace Realty, Inc.

• Decision Date: 30 June 1967
• Citation: Shoppers' World, Inc. v. Beacon Terrace Realty, Inc., 228 N.E.2d 446, 353 Mass. 63 (Mass. 1967)
• Parties: SHOPPERS' WORLD, INC. et al. v. BEACON TERRACE REALTY, INC. et al.
• Court: Supreme Judicial Court of Massachusetts

Page 446

228 N.E.2d 446

353 Mass. 63

SHOPPERS' WORLD, INC. et al. v. BEACON TERRACE REALTY, INC. et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued May 1, 1967.

Decided June 30, 1967.

Joseph P. Warner, Boston, for plaintiffs.

John P. Garrahan, Framingham (Carl A. Sheridan, Boston, with him) for Beacon Terrace Realty, Inc.

Joseph H. Lewis, Framingham, Town Counsel, for Zoning Board of Appeals of Framingham, also with him.

Before WILKINS, C.J., and SPALDING, KIRK, SPIEGEL and REARDON, JJ.

SPIEGEL, Justice.

This is an appeal by the plaintiffs from a final decree of the Superior Court that the decision of the defendant board of appeals of the town of Framingham (the board) granting the defendant Beacon Terrace Realty, Inc. (Beacon) a special permit for the construction of a 'legitimate theatre' and a 'motion picture theatre' did not exceed its authority. The judge took a view of the area and made 'Findings, Rulings and Order,' and subsequently adopted the 'facts stated in * * * (that) document' as a report of material facts. The evidence is reported.

We summarize the pertinent findings. The plaintiff Shoppers' World, Inc. (Shoppers' World) 'occupies and operates' a retail shopping center at number One Worcester Road in Framingham under a long term lease from the Equitable Life Assurance Society of the United States. Under the terms of * * * (this) lease * * * Shoppers' World * * * is obligated to pay all local real estate taxes on the * * * property and all other expenses of the care, maintenance and operation of * * * (the) property.'

The plaintiff Turnpike Theatre Corporation (Turnpike) is a wholly owned subsidiary of the plaintiff General Cinema Corporation (General). Turnpike 'occupies property' in the aforementioned shopping center under a written lease from Shoppers' World. Under the terms of its lease Turnpike is obligated to pay the local real estate taxes applicable to the land and buildings occupied by it and to repay certain construction costs. General is a guarantor of Turnpike's obligations under the lease.

The premises occupied by Shoppers' World and Turnpike 'are in the same zoning district under the provisions of the (z)oning (b)y-(l)aws of the Town of Framingham as the premises of * * * Beacon, which are the subject matter of this * * * (suit). The distance from the nearest boundary line of * * * Shoppers' World * * * to the nearest boundary line of * * * Beacon is some six hundred sixty (660) to six hundred sixty-six (666) feet across Route 9, a divided State (h)ighway. The nearest point of the site of the proposed uses to the nearest building in 'Shoppers' World' is some 1,700 feet across * * * Route 9. * * * The character of the neighborhood is highly commercial on both sides of Route 9 from Route 126 to Speen Street in Natick. Within the area in question are three * * * large shopping centers containing over eighty-seven * * * commercial stores, ten * * * automobile service and sale businesses, fourteen * * * restraurants--nine * * * of which are of the nightclub or supper club nature--motels, real estate offices and other similar commercial enterprises. Over four hundred thousand * * * people live within a radius of ten * * * miles from the site in question. * * * Beacon's land consists of approximately twenty-eight * * * acres, with approximately twenty-four * * * acres being within the business district zone and the remaining acres of land within the single residence zone, and having a frontage of some eleven hundred * * * feet on Route 9. There is presently located in the premises of the * * * (defendant) Beacon, within the business zone, a restraurant and a liquor store. There are presently five entrances from the * * * (defendant) Beacon's premises onto Route 9. The area in which the proposed theatres are to be located is a heavily commercial, business and entertainment area adjacent to an extensive modern industrial area.'

We state the pertinent rulings of the judge. Shoppers' World is an aggrieved person within the meaning of G.L. c. 40A, § 21, as amended. ¹ '(T)he (b) oard's action was responsive to the * * * petition and its decision contained a definite statement of rational causes and motives, founded upon adequate findings. * * * (T)he form and language of * * * (the) application (for a building permit) should not limit the (b)oard's power or discretion * * * where it must be denied by the (b)uilding (i)nspector, not because the details of the plan were not acceptable, but because the (z)oning (b)y-(l)aws * * * forbid him to permit construction of any movie theatre.'

'(E)ven if it were the * * * intention (of Beacon) to construct one building with two auditoriums it was within the discretionary power of the * * * (b)oard to permit it to amend its plans so as to provide for two separate buildings. * * * (S)ince only the (b)oard may grant * * * (a special) permit it is incumbent upon the (b)oard to fashion the requirements for an acceptable plan. * * * (W)hile traffic congestion could result from the proposed plan specific plans have been formulated, such as ingress and egress lanes and synchronized lights, which could alleviate this problem. * * * (T)he (b)oard's decision is not invalid because (of) Restriction #1 of its decision * * * (which) only partially * * * (commits the board) to the future issuance of an exception. * * * (P)lans were filed as to the ingress and egress lanes and the restriction merely states that the final approval lies in the Planning Board.'

'(i)n an area where there are twenty-one (21) restaurants and, at least, eighty-seven (87) retail stores in addition to other businesses, * * * a movie theatre, fine arts theatre and restaurant complex would not derogate the neighborhood. The type of structure that would be built by * * * Beacon would in no way impair the status of the neighborhood.'

1. The plaintiffs first argue that the board's decision 'is a nullity * * * (because) it does not set forth clearly the * * * reasons for its decision, in accordance with G.L. c. 40A, § 18,' and that the 'judge's ruling to the contrary is clearly erroneous.' It is true that this statute is 'not satisfied by a mere repetition of the statutory words' and that 'there must be set forth in the record substantial facts which rightly can move an impartial mind, acting judicially, to the definite conclusion reached.' Prusik v. Board of Appeal of City of Boston, 262 Mass. 451, 457--458, 160 N.E. 312, 314. However, the board's decision in the instant case stated how the matter came before it and reviewed the evidence which was presented to it. It also stated that it had weighed the evidence, taken a view, and concluded that the requested permit should be granted. 'Due to the fact that this area is already devoted to stores, restaurants, and entertainment facilities, it is the decision of the (b)oard that the construction of the theatres as indicated by the petitioner will not impair the status of the neighborhood.' The board also imposed restrictions in the permit which reflected its concern for the traffic problem. We are of opinion that the board's decision is sufficient to comply with G.L. c. 40A, § 18.

2. The plaintiffs next contend that the board's 'decision is not responsive to the application and appeal of Beacon.'

The application for a building permit requested permission for the construction of one building having two auditoriums with seating capacities of 1,800 and 1,000. The board's decision, however, orders the building inspector to issue a permit for the construction of two buildings 'of substantially the same size and construction as represented at the public hearing.' The decision does not otherwise refer to the seating capacities of the buildings or other details of their construction.

The plaintiffs recognize that '(t)he notice of the appeal and public hearing described the subject matter of the...