Weld v. Board of Appeals of Gloucester

• Decision Date: 04 February 1963
• Citation: 345 Mass. 376,187 N.E.2d 854
• Parties: Philip S. WELD et al. v. BOARD OF APPEALS OF GLOUCESTER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 854

187 N.E.2d 854

345 Mass. 376

Philip S. WELD et al. v. BOARD OF APPEALS OF GLOUCESTER et al.

Supreme Judicial Court of Massachusetts, Essex.

Argued Dec. 4. 1962.

Decided Feb. 4, 1963.

Philip M. Cronin, Boston, for plaintiffs.

Edward Morley, Manchester, for defendants.

Before WILKINS, C. J., and WHITTEMORE, CUTTER, KIRK and SPIEGEL, JJ.

WHITTEMORE, Justice.

The plaintiffs appealed to the Superior Court under G.L. c. 40A, § 21, as amended through St.1960, c. 365, from a decision of the board of appeals of the city of Gloucester (the board) under § 3h of the zoning ordinance. The decision recites that the board 'approves [subject to restrictions] the granting of a permit' to Thomas C. Howard, trustee of the Cape Ann Realty Trust, to operate a hotel in several structures on land in that part of the city known as Dolliver's Neck in a single residence district. The plaintiffs are aggrieved parties who own and reside on nearby land.

The judge after making findings entered a final decree which sustained the decision. This is the plaintiffs' appeal from that decree. The exhibits and a condensation of evidence are before us.

The zoning ordinance in § 3h authorizes hotels, motels, and tourist courts in a single residence district but only if, after a public hearing, the board shall issue a permit. 'If the permit shall be granted with conditions, regulations or limitations such as the board may deem necessary to protect the community and the city, such * * * shall be specified in writing on the permit * * * and * * * may be changed by the board * * * from time to time in the interests of the community and of the city after hearing.'

General Laws c. 40A, § 4, authorizes exceptions to the regulations or restrictions of a zoning ordinance or by-law which are 'in harmony with * * * [its] general purpose and intent * * * and may be subject to general or specific rules therein contained. The board of appeals * * * may [after public hearing], in appropriate cases and subject to appropriate conditions and safeguards, grant to an applicant a special permit * * * in accordance with such an exception.'

Section 15 of c. 40 A gives the board of appeals power '2. To hear and decide applications for special permits for exceptions as provided in section four upon which such board is required to pass.'

The board's decision, under date of June 28, 1961, provides, inter alia: 'The previous petition was also for a hotel or inn, but structural plans and specifications filed did not comply with zoning ordinance, and permission to withdraw without prejudice was given by the board [under date of March 13, 1961]. * * * The board approves the granting of a permit subject to the following restrictions: * * * 3. The sewage disposal system shall be completed in accordance with plans previously filed, subject to the approval of the local and state boards of health. 4. The water situation must be arranged to the satisfaction of all concerned. 5. The road to the petitioner's property must be opened...