Smith v. Bd. of Appeals of Salem
| Decision Date | 27 April 1943 |
| Citation | 48 N.E.2d 620,313 Mass. 622 |
| Parties | SMITH et al. v. BOARD OF APPEALS OF SALEM. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Proceeding by J. Newton Smith and others to review a decision of the Board of Appeals of Salem affirming the action of the Inspector of Buildings of such city in granting a permit to alter a residence for use as a funeral home. From a decree annulling the decision and invalidating the permit, the Board appeals.
Affirmed.Appeal from Superior Court, Essex County; Morton, Judge.
Before FIELD, C. J., and DONAHUE, QUA, and DOLAN, JJ.
R. H. Wiswall and G. T. O'Hara, both of Boston, and R. W. Reardon, of Salem, for petitioner.
J. Kinsella, City Solicitor, of Salem, for respondents.
This is an appeal to the Superior Court under G. L. (Ter.Ed.) c. 40, § 30, as inserted by St.1933, c. 269, § 1, and subsequently amended, from a decision of the board of appeals of Salem affirming the action of the inspector of buildings in granting to one Murphy a permit for alterations to a residence owned by him at the northeasterly corner of Federal and Flint streets to adapt it for use as a funeral home. The parties objecting to the permit are landowners in the immediate vicinity. The Superior Court, deciding in their favor, annulled the decision of the board of appeals and invalidated the permit. The case is here on appeal by the board of appeals. The evidence is reported.
The case turns upon the validity of an amendment to the zoning ordinance of the city adopted at the instance of Murphy in March, 1942. Before the amendment the zoning ordinance had established seven classes of districts known as ‘single residence districts,’ ‘general residence districts,’ ‘apartment house districts,’ ‘semiresidence districts,’ ‘business districts,’ ‘industrial district,’ and ‘unrestricted districts,’ and a large area in the older residential section of the city, including both sides of both Federal and Flint streets at and near their intersection, had been placed in a general residence district. The amendment purports to add an eighth class of districts, known as ‘funeral home districts' and to erect into such a district a strip of land 67 feet in width on the easterly side of Flint street, beginning at Federal street and extending northerly until it comes into contract with a narrow business district bordering Bridge street. The portion of the new district next to Federal street is practically coextensive with the Murphy lot, but the district also includes a small lot on Flint street in the rear of Murphy's lot. All of the area surrounding the new district, except the business strip at its northerly end, continues in the original general residence district. The only difference between a funeral home district and a general residence district is that funeral homes are permitted in the former and are excluded from the latter.
The trial judge justifiably found these facts: The new funeral home district ‘was largely, if not wholly, for the sole benefit of said Murphy,’ although the location of...
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