Stark v. Board of Appeals of Quincy

• Decision Date: 03 June 1960
• Citation: 167 N.E.2d 611,341 Mass. 118
• Parties: Mildred I. STARK v. BOARD OF APPEALS OF QUINCY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 611

167 N.E.2d 611

341 Mass. 118

Mildred I. STARK v. BOARD OF APPEALS OF QUINCY et al.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued April 4, 1960.

Decided June 3, 1960.

Harry Pavan, Quincy, for petitioner.

Charles W. O'Brien, Boston, for interveners.

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

SPALDING, Justice.

This is a bill in equity under G.L. c. 40A, § 21, by way of appeal from a decision of the board of appeals granting a variance to permit a business use with respect to a portion of certain premises located in a residential district. The bill is brought by an owner of residential property abutting the premises (hereinafter locus) affected by the variance. The owners of the locus were permitted to intervene. The judge made findings of fact and entered a decree annulling the decision of the board of appeals. From this decree the interveners appealed. The evidence is reported.

The pertinent facts are these. The locus consists of a lot at 12 Common Street, Quincy, containing 4,680 square feet on which there is a single family dwelling which one Maertins, the plaintiff's predecessor in title, had built in 1925. The locus is in a residence B district in which single and two family houses are permitted. The plaintiff's property, also on Common Street, is contiguous to and south of the locus. It is in a residence A district in which single family dwellings are permitted. Business uses, other than those existing on July 1, 1943, when the zoning ordinance was adopted, are not permitted in either district A or district B. North of the locus is a filling station which is operated in conjunction with a garage. Across the street from the locus are two multiple family dwellings. All of these nonconforming structures and uses were in existence prior to the adoption of the zoning ordinance.

In 1944 a one story structure was attached to the house on the locus pursuant to a building permit for a two car garage. It is this portion of the interveners' property that is involved in the present controversy. In 1949 the garage doors were removed, and three windows and a door were substituted. This was done under a building permit issued on an application which stated that the property was to be used for storage purposes.

The interveners acquired title to the locus from Maertins on June 27, 1958. For some time prior to this the interveners had been negotiating with Maertins for the purchase. On June 13, Maertins filed an application with the building department for a permit to alter the structure on the side of the house by an addition twenty feet wide and five feet in depth. The application stated that the structure was to be used for dwelling purposes. Pursuant to the application the extension was built. In September, after the work had been completed, the building inspector visited the property and found that it was being used for business purposes as an office. Upon being told by the inspector that this use was a violation of the zoning ordinance and could not continue, the interveners filed an application with the board of appeals for a variance permitting the altered structure to be used for an educational film library, admittedly a business use.

The judge found that there was no evidence of any change in the character of the neighborhood since the adoption of the zoning ordinance and that since that time numerous single family dwellings had been built in the area. He further found that '[t]o permit the use of * * * [the locus] for business would * * * cause substantial detriment to the neighborhood, particularly those owners of single family dwellings who had a right to expect there would be no invasion of business in a single family * * * residential district'; that there was 'no demand for an extension of business in this particular district'; and that there was a 'substantial area zoned for business within a very short distance from [the locus].' The judge concluded that the granting of a variance would 'cause substantial detriment to the public good and would nullify and substantially derogate from the intent and purpose of the [zoning ordinance].'

Unless the foregoing findings were plainly wrong the decree below must stand. General Laws c. 40A, § 15, as amended by St.1958, c. 381, authorizes board of appeals to grant variances 'where, owing to conditions especially affecting such parcel or such building but not affecting generally the zoning district in which it is located, a literal enforcement of the provisions of the ordinance or by-law would involve substantial hardship, financial or otherwise to the appellant, and where desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of such ordinance or by-law, but not otherwise.' The governing principles...