Wolfson v. Sun Oil Co.

• Decision Date: 27 February 1970
• Citation: 357 Mass. 87,256 N.E.2d 308
• Parties: Lilla T. WOLFSON v. SUN OIL COMPANY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 308

256 N.E.2d 308

357 Mass. 87

Lilla T. WOLFSON v. SUN OIL COMPANY et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Jan. 6, 1970.

Decided Feb. 27, 1970.

Jerome P. Facher, Boston, for plaintiff.

William D. Quigley, Boston (Joseph Graglia, Boston, with him) for Sun Oil Co.

Before WILKINS, C.J., and KIRK, SPIEGEL, and REARDON, JJ.

SPIEGEL, Justice.

This is a bill in equity under St.1956, c. 665, § 11, to annul the decision of the board of appeal for the city of Boston (board) granting 'an extension of a nonconforming use and a variance from the terms of the Boston Zoning Code' (code). The trial judge made 'Findings, Rulings and Order for Decree.' The plaintiff appeals from a final decree holding that the board did not exceed its authority and that no modification of its decision was required. The evidence is reported. All questions of law, fact and discretion are open for review by us, but the findings of fact will not be disturbed unless they appear to be plainly wrong. Rodenstein v. Board of Appeal of Boston, 337 Mass. 333, 334, 149 N.E.2d 382.

Sun Oil Company (Sunoco) had operated a gasoline station at 1200 Veterans of Foreign Wars Parkway, West Roxbury (locus), since 1950, 'as (a) lessee up to 1966, at which time it acquired ownership of the locus.' The property owned by the plaintiff is '(d)irectly behind the locus.' Prior to December 31, 1964, both the plaintiff's property and the locus was situated in a "1--80' zone district which permitted the erection of gasoline stations and other commercial uses.' A new zoning code which became effective on December 31, z1964, divided the locus into three separate zoning districts. A portion of the locus 'is in an 'S-5 zone (Single Residence District)''; another part of the locus is located in an 'L--5 (Local Business District),' and the 'remainder of the lot is in (a) 'B--1 (General Business District). " The land surrounding and the plaintiff's property in question 'is almost entirely devoted to business and industrial uses.' The locus is bordered on the right by a driveway leading to the plaintiff's property.

On June 19, 1967, Sunoco filed 'an application for a permit * * * with the building department of the city of Boston to construct * * * (an) addition to its gasoline station' which would consist of an inspection bay forty-eight feet long and fifteen feet four inches wide. The building commissioner did not grant the permit 'citing as reasons therefor that the proposed construction would be in violation of the following zoning code provisions: Article 9, Section 9--1 (Non-Conforming use), Article 19, Section 9--1 (Side Yard Requirements), and Article 20, Section 20--1 (Rear Yard Requirements).' Shortly thereafter, Sunoco appealed to the board 'seeking a variance of the provisions of the * * * code cited by the building commissioner.' After a public hearing the board granted the variance 'with conditions.'

The judge found that 'because of the size and irregular shape of the locus, and more particularly because of the re-zoning in 1964 which divided it into three separate zones, the locus was unique.' He concluded that the effect of the rezoning of the locus 'has prevented * * * (Sunoco) from making a maximum reasonable use of its property.'

The judge in effect found, as the board had found, that there was 'substantial hardship' to Sunoco and that desirable relief could be granted without 'substantial detriment to the public good without nullifying or substantially derogating from the intent and purpose of * * * (the code).'

Under St.1956, c. 665, § 9, the board's power to grant a variance is substantially the same as that conferred upon the board of appeals in other municipalities by G.L. c. 40A, § 15. Real Properties, Inc. v. Board of Appeal of Boston, 319 Mass. 180, 183, 65 N.E.2d 199, 168 A.L.R. 8. ¹ Section 9 provides that: 'Upon an appeal from the refusal of the building commissioner or other administrative official to issue a permit under this act or under a zoning regulation as adopted and amended under this act, said board of appeal may authorize with respect to a particular parcel of land or to an existing building thereon a variance from the terms of such zoning regulation 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 such zoning regulation would involve substantial hardship 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 and purpose of such zoning regulation, but not otherwise. In authorizing such variance, said board may impose limitations both of time and of user, and a continuation of the use permitted may be conditioned upon compliance with regulations to be made and amended from time to time thereafter.' All the board and the judge did by...