Home COMMONWEALTH vs. CHARLES R. HESSER.

1 Mass. App. Ct. 850

November 1, 1973

This appeal under G. L. c. 278, Section 28, brings to us nothing but the docket entries, which indicate that the defendant was fined five dollars for a "parking violation." The parking regulation involved is not contained in the record or even in the brief by agreement of the parties. See Commonwealth v. Berney, 353 Mass. 571 , 572 (1968). The defendant's two-page brief asserts that his conviction "is clearly contrary to the spirit, concept and tradition of Anglo-American constitutional law," citing a North Carolina case concerned with off-street metered parking. The brief submitted in his behalf cannot be said to contain an argument as required by Rule 1:15 (1) (d) of the Appeals Court Rules. Lolos v. Berlin, 338 Mass. 10 , 13-14 (1958). We therefore do not feel called upon to deal further with this case. The brief is struck and the appeal, which borders on the impertinent, is dismissed.

So ordered.

Home JAMES H. DELGAUDIO & another vs. BOARD OF APPEALS OF MEDFORD & others (and a companion case between the same parties).

1 Mass. App. Ct. 850

November 2, 1973

The defendant board of appeals granted (1) a variance to build a six-story motel in a district where motels of more than two stories are prohibited by the zoning ordinance and (2) a special permit for parking on certain lots of land as an accessory use to the proposed motel and to a restaurant presently being operated on the same site. The zoning ordinance provides for such special permits under the conditions and safeguards of G. L. c. 40A, Section 4. The plaintiffs, owners of land across one of the streets bounding the locus, appealed from decrees of the Superior Court which upheld the decisions of the board of appeals. The finding that it would not be economically feasible to build a two-story motel on the site is not sufficient to support the granting of the variance. Planning Board of Barnstable v. Board of Appeals of Barnstable, 358 Mass. 824 (1971). There are no conditions present in the variance case which specifically affect the locus but do not affect generally the zoning district

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in which it is located. G. L. c. 40 A, Section 15 (as most recently amended by St. 1958, Section 381). Wolfson v. Sun Oil Co. 357 Mass. 87 , 90 (1970). In granting the special permit for parking purposes the board of appeals did not make the requisite statement of reasons supporting its general recitation of the statutory language of Section 4 (G. L. c. 40 A, Section 18), nor did it make any finding that there would be no adverse effect upon the neighborhood, as required by Section 16.4 of the zoning ordinance. Gaunt v. Board of Appeals of Methuen, 327 Mass. 380 , 381-382 (1951). In each case the final decree is reversed and a new decree is to be entered adjudging that the decision of the board of appeals was in excess of its authority and is annulled. The plaintiffs are to have costs of appeal.

So ordered.