Home M. ROBERT HARROW vs. BOARD OF APPEALS OF PITTSFIELD & others. [Note 1]

7 Mass. App. Ct. 937

June 28, 1979

The plaintiff sought review in the Superior Court of a grant of variances by the board of appeals of Pittsfield allowing use of property belonging to the Haugheys as a parking lot. The trial judge made "Findings of Fact, Rulings of Law and Order for Decree." No judgment was entered as required by Mass.R.Civ.P. 58(a), as amended, 371 Mass. 908 (1976), and any effort to obtain appellate review was, therefore, premature. Tisei v. Building Inspector of Marlborough, 5 Mass. App. Ct. 328 , 330 (1977). The appeal, therefore, must be dismissed. Nevertheless, the case having been fully briefed and argued, we state our views in this matter. The defendants have not established that "owing to conditions especially affecting [the defendant Haugheys' property] . . . a literal enforcement of the provisions of the [Pittsfield zoning] ordinance . . . would involve substantial hardship" to them. G. L. c. 40A, Section 15, cl.3, as in effect prior to St. 1975, c. 808, Section 3. Although the locus was surrounded by office, commercial, and club uses, there was no evidence in the record that the Haugheys' property could not be used for purposes allowed by the Pittsfield zoning ordinance. See Coolidge v. Zoning Bd. of Appeals of Framingham, 343 Mass. 742 , 745-746 (1962); Sullivan v. Board of Appeals of Belmont, 346 Mass. 81 , 84-86 (1963); Garfield v. Board of Appeals of Rockport, 356 Mass. 37 , 41 (1969). Compare Dion v. Board of Appeals of Waltham, 344 Mass. 547 , 550-552 (1962). See also Costa v. Zoning Bd. of Appeals of Framingham, 6 Mass. App. Ct. 872 (1978). The decision of the board of appeals of Pittsfield should, on the present record, therefore, have been annulled. Since no judgment has been entered, the parties may move in the Superior Court for reconsideration of the order for judgment. In that connection the Superior Court may, in its discretion, receive further evidence on the question whether the Haugheys can feasibly use their property for any purpose allowed under the Pittsfield ordinance.

Appeal dismissed.


FOOTNOTES

[Note 1] Raymond L. Haughey and Helen P. Haughey, owners of the premises for which the defendant board of appeals granted variances.