Home MICHAEL F. WALDRON & another [Note 1] vs. BOARD OF APPEAL OF MALDEN & another. [Note 2]

2 Mass. App. Ct. 868

September 16, 1974

This is an appeal from a final decree of the Superior Court annulling a decision of the board of appeal of the city of Malden which granted a variance for the remodeling of a home in a residential zoning district to include a beauty parlor. The trial judge ruled that the board had failed to set forth clearly the reasons for its decision as required by G. L. c. 40A, Section 18 (see Delgaudio v. Board of Appeals of Medford, 1 Mass. App. Ct. 850, 851 [1973]) and remanded the case to the board for that purpose. We believe that on this record such remand was within the discretion of the Superior Court. Josephs v. Board of Appeals of Brookline, 362 Mass. 290 (1972). Williams v. Building Commr. of Boston, 1 Mass. App. Ct. 478, 479-480 (1973). See Allen v. Board of Appeals of Fall River, 351 Mass. 714 (1967). The decree is to be modified by striking out paragraphs 1 and 2 thereof and by providing (1) that the board shall set forth clearly its reasons for granting the variance and shall report them to the Superior Court and (2) that the Superior Court shall retain jurisdiction of the case. As so modified the decree is affirmed.

So ordered.


[Note 1] Dorothy F. Waldron.

[Note 2] Rita Hicks.


2 Mass. App. Ct. 868

September 17, 1974

The defendant appeals from so much of a final decree of the Land Court as declared that the defendant's easement in a certain private way across land of the plaintiff gave the defendant no right to install utilities therein for the benefit of the land to which its easement was appurtenant. Those utilities were identified in the parties' statement of agreed facts as "including but not limited to such conduits, pipes, wires, poles, cables or other instrumentalities needed in connection with the provision of electricity, water, gas, telephone, or other municipal or utility services" to the defendant's land. As stated by the trial judge in her careful, written opinion, "a general right of way in . . . [a private way is] limited to purposes of travel (absent special language creating broader rights) and . . . [does] not include the installation of utilities." The defendant's attempts to distinguish the three cases cited by the judge in support of that proposition are not persuasive. The record in Crullen v. Edison Elec. Illuminating Co. of Boston,

Page 869

254 Mass. 93 (1925), of which we take judicial notice (Flynn v. Brassard, 1 Mass. App. Ct. 678, 681 [1974]), discloses that the easement construed in that case did not by express language (as contended by the defendant) restrict use thereunder to purposes of travel, but was couched in broad terms ("a right of way in said proposed street or way"). The defendant incorrectly assumes that the easement construed in Ampagoomian v. Atamian, 323 Mass. 319, 321-322 (1948), was one requiring a strip of the grantors' land "to forever be maintained as a driveway" (emphasis supplied), whereas the easement actually involved in that case was a subsequent one conferring "a right of way over" certain land of the grantors. We regard the terms of the easement construed in Ward v. McGlory, 358 Mass. 322, 324-325 (1970) ("a right of way over other land of the grantors on the existing roadway" [emphasis supplied]) as equally general. Nor are we persuaded by the argument that the defendant acquired broader rights than the grantees in the cases cited above by reason of having been granted "the right to use the whole of said way" (emphasis supplied). The quoted words appear in the defendant's certificate of title in the context of other language relating to a portion of the way to which the defendant had title, and the phrase "the whole of said way" was obviously chosen to distinguish the geographical extent of the easement from that of the fee. The defendant's further contentions based on G. L. c. 41, Sections 81K-81GG, and on the fact that the present case involves registered land, are without merit.

Decree affirmed.