This is an appeal from a judgment entered in the Superior Court upholding a decision of the board of zoning appeal of the city of Cambridge (board) to grant a special permit for the operation of an "Automobile-Oriented Food Service Establishment." The case was heard in the Superior Court upon a statement of agreed facts (compare Pelletier v. Board of Appeals of Leominster, 4 Mass. App. Ct. 58 ; Costa v. Zoning Board of Appeals of Framingham, 6 Mass. App. Ct. 872 ) and upon stipulations that the facts found by the board were true and that the sole issue in dispute was whether the decision of the board with respect to arts. 11.31 and 10.43 of the zoning ordinance was adequate as a matter of law. The judge ruled that art. 11.31(d) did not require the board to make an affirmative finding of reliance on walk-in as opposed to drive-in trade. There was no error. Article 11.31 plainly and simply requires the board to "give consideration" to four criteria. Article 11.31(d) does not require that applications relying on walk-in trade be granted or that those relying on drive-in trade be denied. In fact, given the applicability of art. 11.31 to both fast order food establishments and automobile-oriented food service establishments, the construction of art. 11.31(d) suggested by the plaintiff would lead to an unreasonable conclusion and should not be adopted where the language of the ordinance is "fairly susceptible to a construction that would lead to a logical and sensible result." Bell v. Treasurer of Cambridge, 310 Mass. 484 , 489 (1941). Green v. Board of Appeal of Norwood, 358 Mass. 253 , 258 (1970). By interpreting art. 11.31 as it did, and by giving consideration to each of the criteria set forth therein, the board acted in a way that was neither "unreasonable, whimsical, capricious, or arbitrary" nor "legally untenable." Gulf Oil Corp. v. Board of Appeals of Framingham, 355 Mass. 275 , 277 (1969). Caruso v. Pastan, 1 Mass. App. Ct. 28 , 29-30 (1973). The board made all the findings necessary to satisfy the requirements of art. 10.43.
Judgment affirmed with double costs.
On the state of the evidence disclosed by the substitute bill of exceptions, the inquiry which the defendant was precluded (despite the fact that the Commonwealth had raised no objection) from putting to the complaining witness
on cross-examination related not merely to the credibility of the latter but to the central issue of the correctness of the identification of the defendant as one of the smaller group which committed the crime, an issue which was not obviated by the defendant's admission that he was part of the larger group in the vicinity. In these circumstances it was error to foreclose inquiry on cross-examination into the content of the written description which led to the apprehension of the defendant and the subsequent in-person identification of him by the complaining witness. See Commonwealth v. Franklin, 366 Mass. 284 , 290 (1974), and cases cited; Commonwealth v. Graziano, 368 Mass. 325 , 329-330 (1975); Commonwealth v. Bohannon, 376 Mass. 90 , 94 (1978); Commonwealth v. Dominico, 1 Mass. App. Ct. 693 , 712 (1974), and cases cited.
BROWN, J. (dissenting). In my view, this is an easy case. There is no issue here of misidentification. The only question is whether the defendant participated in the destruction of the fence. 1. The defendant admits that he was present at the alleged incident. The victim identified the defendant "as being one of the eight youths who participated in the alleged destruction." That much is quite clear from the rather inartfully drawn bill of exceptions. Thus, contrary to the defendant's contention, there is no issue of misidentification to which the question "as to what description of the defendant was written down [earlier in the morning] at 1:05 A.M." by the victim can be said to be relevant. Compare Commonwealth v. Bettencourt, 361 Mass. 515 , 519 (1972). 2. Moreover, the bill of exceptions does not show what purpose the defendant sought to accomplish or how he would have been aided by the answer. Nor does the defendant's bill of exceptions show prejudice in the exclusion of this isolated question. See Commonwealth v. McGrath, 358 Mass. 814 , 815 (1971). See generally Commonwealth v. Barras, 3 Mass. App. Ct. 43 , 46-47 (1975).