Simone v. Board of Appeals of Haverhill

• Decision Date: 13 September 1978
• Citation: 380 N.E.2d 718,6 Mass.App.Ct. 601
• Parties: Peter SIMONE et al. v. BOARD OF APPEALS OF HAVERHILL et al.
• Court: Appeals Court of Massachusetts

Page 718

380 N.E.2d 718

6 Mass.App.Ct. 601

Peter SIMONE et al. v. BOARD OF APPEALS OF HAVERHILL et al.

Appeals Court of Massachusetts, Essex.

Argued May 17, 1978.

Decided Sept. 13, 1978.

John E. Boyle, Haverhill, for Peter Simone and others.

James T. Ronan, Salem, for William Rabinowitz.

Before KEVILLE, GOODMAN and BROWN, JJ.

GOODMAN, Justice.

This action seeks to set aside a decision of the board of appeals of Haverhill (board) which granted a variance for "a retail food store and gasoline pumps," to be operated from a structure at 610 Main Street (locus). The structure had been built in 1962, before the adoption of the Haverhill zoning ordinance, as a gasoline station and was intermittently used for that purpose both before and after the effective date of the ordinance, January 1, 1972. Under that ordinance the gasoline station was a nonconforming use in a residential district zoned primarily for single and two-family residences. The locus has not been used as a gasoline station since 1973.¹ The case was referred to a master, whose report concluded that the board did not exceed its authority in granting a variance. The judge accepted the report, which was accompanied by a summary of the evidence in support of certain of the master's findings (summary of the evidence). See Rule 49(7) of the Superior Court, as amended, effective May 8, 1976. He entered judgment upholding the variance; we reverse.

The master's report, taken together with the summary of the evidence, does not support the judgment. It does not manifest the existence of a "substantial hardship" which is "owing to conditions especially affecting (the locus) . . . but not affecting generally the zoning district in which it is located . . .." G.L. c. 40A, § 15(3), as in effect prior to St.1975, c. 808, § 3. See now G.L. c. 40A, § 10.

The master's finding that the locus, containing 25,239 square feet, has a value for residential purposes of $10,000, demonstrates that the zoning ordinance does not deprive the applicant of the use of his land. Bruzzese v. Board of Appeals of Hingham, 343 Mass. 421, 424, 179 N.E.2d 269 (1962); Hunt v. Milton Sav. Bank, 2 Mass.App. 133, 140, 309 N.E.2d 525 (1974). Cf. Sherman v. Board of Appeals of Worcester, 354 Mass. 133, 135, 235 N.E.2d 800 (1968). From that finding it would appear that this is not a case in which the removal of the gas station and the surrounding pavement is so expensive (the master's report contains no cost figures) as to make it unreasonable to attempt to develop the locus for residential purposes. Thus, that finding is inconsistent with an inference that the locus cannot reasonably be developed for residential purposes a conclusion which would otherwise result from the findings that the property has "little suitability to justify residential use" and that the location "makes it undesirable to attract many buyers." ² See Coolidge v. Zoning Bd. of Appeals of Framingham, 343 Mass. 742, 745, 180 N.E.2d 670 (1962).

The decrease in market value from $50,000 if the variance is granted to $10,000 if the property must be used in accordance with the zoning ordinance does not aid the applicant for the variance. "The loss of the advantages of a non conforming use when that use ends is not 'substantial hardship, financial or otherwise' within the statute." McLaughlin v. Rockland Zoning Bd. of Appeals, 351 Mass. 678, 683, 223 N.E.2d 521, 524 (1967); City Council of Waltham v. Vinciullo, 364 Mass. 624, 631, 307 N.E.2d 316 (1974). See Abbott v. Appleton Nursing Home, Inc., 355 Mass. 217, 220-221, 243 N.E.2d 912 (1969). Under similar circumstances the court said in Garfield v. Board of Appeals of Rockport, 356 Mass. 37, 41, 247 N.E.2d 720, 723 (1969): "The locus apparently could be used for residential purposes, and neither the expense of razing the Inn nor the loss of a possible sale of the locus for business use establishes a hardship under G.L. c. 40A, § 15." This case is different from Johnson v. Board of Appeals of Wareham, 360 Mass. 872, 873, 277 N.E.2d 695 (1972), which involved "not being able reasonably to use this unusual, if not unique, and substantial" building.

Nor does the master's report indicate the existence of conditions which especially affect the land. Cf. Sherman v. Board of Appeals of Worcester, 354 Mass. at 135, 235 N.E.2d 800 and cases cited. Some economic difficulty as there may be in developing the locus for residential purposes is, as the master's report shows, due to the growing business character of the area and the proximity of the locus to another gasoline station. But the changing character of the neighborhood affects all the land in the area including particularly vacant land which the master found to exist nearby and the development of which would also be disadvantaged. Bouchard v Ramos, 346 Mass. 423, 426, 193 N.E.2d 691 (1963); Cass v. Board of Appeal of Fall River, 2 Mass.App. 555, 559, 317 N.E.2d 77 (1974). See Coolidge v. Zoning Bd. of Appeals of Framingham, 343 Mass. at 745-746, 180 N.E.2d 670. And the proximity of the locus to a non-conforming business use cannot generally serve as a basis for a finding of unique conditions. See Rafferty v. Sancta Maria Hospital, --- Mass.App. ---,^a 367 N.E.2d 856 (1977), and cases cited.

The Superior Court reached the merits of the board's decision, and we have proceeded in the same way. See Cass v. Board of Appeal of Fall River,2 Mass.App. at 558 n.5, 317 N.E.2d 77. We observe, however, that the board's...