311 Mass. 52 | Mass. | 1942
This is a petition for a writ of certiorari brought in the Superior Court (St. 1924, c. 488, § 19, G. L. [Ter. Ed.] c. 213, § 1A, as inserted by St. 1939, c. 257, § 1), to quash a decision by the respondent board varying the application of the zoning law of the city of Boston with respect to a vacant lot of land in a general residence district, so that it may be used as a parking space. The petition was
The city of Boston is excepted from the provisions of G. L. (Ter. Ed.) c. 40, §§ 25-30A, inclusive, as amended, and the provisions of law regulating and restricting the use of buildings and premises in the city, constituting, in effect, the zoning law of said city (Prusik v. Board of Appeal of Boston, 262 Mass. 451, 453) are found in St. 1924, c. 488, as amended. Section 4 of said c. 488 provides that in a general residence district no building or premises shall be erected, altered or used except for one or more of the following uses: (1) any use permitted in a single residence district; (2) dwellings; (3) clubs, social or recreational buildings, except clubs the chief activity of which is a service customarily carried on as a business; (4) hotels, provided they conform to all the requirements of the act for dwellings; (5) accessory uses customarily incident to any of the above uses, the term “accessory use” to be construed as in § 3 (see St. 1933, c. 204, § 3, that now permits as an accessory use elsewhere than in a thirty-five foot district a garage in the basement or cellar, or both, of a build- • ing); and (6) telephone exchange offices. There is a further provision that in a general residence district the building commissioner may grant a permit for physicians’ offices, provided the building or use is not detrimental or injurious to the residential character of the neighborhood, and by-St. 1925, c. 219, § 4, the commissioner may grant a permit for dentists’ offices as well. By the provisions of § 3 of said c. 488, as amended by St. 1933, c. 204, § 1 (a), it is provided that the term “accessory use” shall not include a garage or parking of automobiles, except garage space for or parking of not more than three automobiles, of which not more than one may be a commercial vehicle, provided that such a garage, “except a building exempted from be
Statute 1924, c. 488, § 19, provides that the board of appeal, as provided for in the building law of the city of Boston, may vary the application of the zoning law of the city “in specific cases wherein its enforcement would involve practical difficulty or unnecessary hardship and wherein desirable relief may be granted without substantially derogating from the intent and purpose of . . . [the law], but not otherwise.” No question is raised as to compliance by the board with requirements as to notice or as to the unanimity of its vote in rendering its decision. The power of the board of appeal to authorize a variance is the same as that conferred upon the board of appeals under G. L. (Ter. Ed.) c. 40, § 30, inserted by St. 1933, c. 269, § 1.
By the provisions of § 19 of said c. 488, the board is required to cause to be made “a detailed record of all its proceedings, which record shall set forth the reasons for its decisions,” and it has been held that these words mean that there must be set forth in the record substantial facts which rightly can move an impartial mind acting judicially, to the definite conclusion reached. This requirement is not satisfied by a mere repetition of the statutory words. Minute recitals may not be necessary, but there must be a definite statement of rational causes and motives, founded upon
It appears from the respondents’ return that the building commissioner of the city of Boston denied the applica-, tian of The Sheraton, Inc., hereinafter referred to as the corporation, for a permit to use the premises in question for the parking of automobiles, with a sign incidental thereto. The corporation appealed from this decision, and petitioned the board of appeal to vary the application of the zoning law so as to permit the parking of automobiles and necessary signs on the premises in question. The board found, as set out in its decision, that there is a “deed restriction” on the premises in question which runs until 1950 (see Jenney v. Hynes, 282 Mass. 182, 185, 186); “hence the property cannot be developed for the purpose for which it is zoned other than as a single family dwelling house. Such a development would be impractical as said premises abut a Local Business (L-80) District — a Local Business Boundary fine running through the alleyway separating the premises in question from the abutting premises; and permitting on said abutting premises a structure 80' in height to be used for any business, trade or industry as enumerated under the provisions of Section 5 of the Zoning Act here in issue. The actual trend of real estate in this vicinity is distinctly away from single residences. None are being built and many residences are occupied, in part, by professional offices so this street can no longer be considered a single- family area.” It is to be observed that § 3 of said c. 488 provides for single residence districts. Further findings are that the corporation is the owner of a large hotel, the Hotel Sheraton, that is located on Bay State Road within about one hundred feet of the premises in question, and that a serious parking problem incidental to the effective conduct of the hotel has arisen; that there is very little available parking space around the hotel; that Bay State Road is a much traversed and busy thoroughfare; “therefore, . . . [the corporation] in good faith purchased the premises . . . [in question], in order to take care of its parking problem, thinking it could go
A variance was granted, the refusal of the building commissioner to grant a permit to use the premises in question for the parking of automobiles with necessary signs was annulled, and he was ordered to grant a permit in accordance with the decision of the board subject to provisions
The governing principles of law relating to the power to authorize .variances need not be repeated. The question to be decided is whether the facts set forth in the return warrant the conclusion that there ought to be a variance because (1) the enforcement of the law works '“unnecessary hardship’ upon the landowner,” and (2) desirable relief may be granted without substantially derogating from the intent and purpose of the law. Phillips v. Board of Appeals of Springfield, 286 Mass. 469, 471-472, and cases cited.
Certain facts stand out prominently in the findings of the board. Although the premises in question are in a general residence district, there is a restriction that nothing but a single family dwelling house can be erected. A zoning law cannot constitutionally relieve land within the district covered by it from lawful restrictions affecting its use. Vorenberg v. Bunnell, 257 Mass. 399, 408. Jenney v. Hynes, 282 Mass. 182, 194. This was said by the court with respect specifically to St. 1924, c. 488. It would seem that the hardship in the case at bar, in so far as the premises in question are concerned, is that they are restricted in development to the erection of a single family dwelling house. The finding of the board that the trend of real estate in the vicinity is distinctly away from single residences and that many residences are occupied, in part, by professional offices, so that Bay State Road can no longer be considered a single family area fails to take into account the fact that the premises are not zoned in a single residence district, as provided for by § 3 of said c. 488. On the contrary, they are in a general residence district, and the fact that many of the residences are occupied by professional offices is within the purview of § 4 of said c. 488, as amended. In this connection it is to be observed that the building com
The apparent plight of the corporation, in so far as the ownership of the premises in question is concerned, is predicated by the board, in part, upon the finding that the cor
Further examination of the findings of the board discloses that the real difficulty, if any, arising is that of the corporation, not so much because it is the owner of the premises in question, as it is that there is a serious parking problem “incidental to the effective conduct” of the hotel. The board had in mind this “problem,” as well, it is true, as the hardship involved for the corporation in its being unable to advantageously develop, or in any way make productive, the premises for the purpose for" which they are zoned. The use of premises for a hotel is permitted under the provisions of § 4 of said c. 488, as hereinbefore set out, but there is no exemption for hotels from the provisions relating to the parking of automobiles, except by the provisions of St. 1933,
There is no occasion to repeat what has been said as to the meaning of the words "practical difficulty” or "unnecessary hardship.” See Norcross v. Board of Appeal of Boston, 255 Mass. 177, 185; Prusik v. Board of Appeal of Boston, 262 Mass. 451, 457; Coleman v. Board of Appeal of Boston, 281 Mass. 112,116-117; Phillips v. Board of Appeals of Springfield, 286 Mass. 469, 471-472; Leahy v. Inspector of Buildings of New Bedford, 308 Mass. 128, 132-133. No one factor determines the question of what is practical difficulty or unnecessary hardship, but all relevant factors, when taken together, must indicate that the plight of the premises in question is unique in that they cannot be put reasonably to a conforming use because of the limitations imposed upon them by reason of their classification in a specified zone. When this appears, the further question has to be determined, whether desirable relief may be granted without substantially derogating from the intent and purpose of the zoning law, but not otherwise.
We are of opinion that, upon this record, the board of appeal exceeded its authority in granting the variance for the reason that it does not appear that the enforcement of the zoning law involves practical difficulty or unnecessary hardship upon the corporation as owner of the premises for which a variance is sought. Accordingly, it is unnecessary to determine any other questions. See Phillips v. Board of Appeals of Springfield, 286 Mass. 469, 471.
In the consideration of this case it has been unnecessary to take into account so much of the return as relates to the return made at the petitioner’s request of proceedings upon
The petition as to The Sheraton, Inc. was rightly dismissed. There is no occasion for the writ of certiorari to issue to bring before the court a record of the board, inasmuch as it has been certified and included in the return. The exceptions are sustained and the case is remanded to the Superior Court where a writ is to issue to quash the proceedings. G. L. (Ter. Ed.) c. 249, § 4.
So ordered.