Sullivan v. Board of Appeals of Canton
| Citation | 345 Mass. 117,185 N.E.2d 756 |
| Parties | George D. SULLIVAN et al. v. BOARD OF APPEALS OF CANTON et al. |
| Decision Date | 06 November 1962 |
| Court | United States State Supreme Judicial Court of Massachusetts |
George D. Sullivan, pro se.
Bernard G. Sykes, Norwood, for defendants Falls.
Before WILKINS, C. J., and SPALDING, WHITTEMORE, CUTTER, KIRK, and SPIEGEL, JJ.
This is a bill in equity under G.L. c. 40A § 21, inserted by St.1954, c. 368, § 2, as amended, by way of appeal from a decision of the board of appeals of the town of Canton granting a variance to Robert A. Falls and his wife, hereinafter called the applicants. The evidence is reported and the judge made a report of material facts.
The applicants, in 1951, purchased a parcel of land in Canton, which was located in a general residence C district where two family houses were permitted. The area of the locus was 24,800 square feet; it had a frontage on Mechanic Street of 181.5 feet. When they acquired the property there was a single family dwelling on it. There are many two family houses near by and many of the lots in the vicinity are less than 10,000 feet in area. In May, 1960, the zoning by-law of the town was changed whereby the locus was placed in a single residence B district. This district is approximately 100 feet from a general residence C district. In a B district the lot requirement is 15,000 feet and the setback requirement is 30 feet. Prior to the zoning change the applicants sought and were granted a permit to build a two family house on the locus. Work was commenced under the permit but later the applicants were told by the town's building inspector to cease work. At that time an excavation for the cellar had been made and the foundation walls had been built.
Thereafter the applicants petitioned the board of appeals for a variance which would enable them to complete the two family house on the locus. After a hearing the board of appeals rendered a decision granting a variance. Under the board's decision the locus was to be divided so that the existing single family house would be on a lot with an area of 9,800 square feet and a frontage of 81.5 feet. On the remainder of the locus, consisting of 15,000 square feet (the required amount in a single residence B district), permission was granted for the construction of a two family house. The width of this lot 'through building' is 100 feet, whereas the zoning requirement in a single residence B district is 115 feet. The setback requirement in such a district is 30 feet but the proposed house was to have a setback of 25.6 feet. 1
The judge found that in granting the variance the heard of appeals was not arbitrary; that the denial of a variance would cause considerable hardship to the applithem to make 'the most advantageous use of their property without causing substantial detriment to the public good and without nullifying or substantially derogating from the intent and purpose of the Zoning By-Law.' He concluded that the decision of the board of appeals was within its jurisdiction and that no modification of it was required. From a decree in accordance with this ruling, the plaintiffs, who are the owners of property directly opposite the locus, appealed.
It is settled that, before a variance may be granted, all the requirements of G.L. c. 40A, § 15, as amended through St.1958, c. 381, must be met. Blackman v. Board of Appeals of Barnstable, 334 Mass. 446, 450, 136 N.E.2d 198. Atherton v. Board of Appeals of Bourne, 334 Mass. 451, 452, 454, 136 N.E.2d 201. Shacka v. Board of Appeals of Chelmsford, 341 Mass. 593, 595, 171 N.E.2d 167. One of the provisions of § 15 is that a variance may be granted only 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 of by-law would involve substantial hardship, financial or otherwise to the...
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...by us, and we can and shall make certain findings in addition to those made by the trial judge. See Sullivan v. Board of Appeals of Canton, 345 Mass. 117, 119, 185 N.E.2d 756 (1962). However, we cannot disturb the findings made by him unless convinced that they are plainly wrong. BRODERICK ......
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