MISC 1979-90599

October 29, 1979

Middlesex, ss.

Sullivan, J.


This is a complaint pursuant to General Laws, c. 40A, §17, as amended by St. 1975, c. 808, §3, [Note 1] brought by several owners of single family dwellings in the Town of Framingham who allege that they are aggrieved by a decision of the Board of Appeals and seek to have it annulled. The defendants are the J. & P. Framingham Trust of which John Philopoulos is trustee, and John B. Flynn, Vincent E. Garino and Arnold D. Mindick, as they are the Board of Appeals of the Town of Framingham (the "Board"). The vacant land affected by the Board's decision is approximately one hundred feet wide and six hundred feet long (Exhibit No.4). After the pleadings had been completed, the plaintiffs moved for summary judgment on the grounds of res judicata and of facial invalidity of the decision. The motion was denied by the Court on the ground that it was the judge's duty "to determine the facts for himself upon the evidence introduced before him, to apply the governing principles of law and then to inspect the decision of the Board and enter such decree as justice and equity may require." Planning Board of Springfield v. Board of Appeals of Springfield, 355 Mass. 460 , 462 (1969). But cf. Barnhart v. Board of Appeals of Scituate, 343 Mass. 455 , 458 (1962).

A trial was held on May 30, 1979 at which a stenographer was appointed to record the testimony. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal. The Court took a view of the area on October 3, 1979, and a description of the neighborhood included in the findings is based in part thereon.

On all the evidence I find and rule as follows: the plaintiffs each are owners of single family dwellings in Framingham which either abut the property of the defendant trust or are situated in the immediate neighborhood; the defendant is the owner of a parcel of vacant land situated in an R-3 district (for zoning purposes) in said Framingham which contains about 9.61 acres (Exhibit No.5); an R-3 district is a single residence zone in which the minimum permitted lot size is 20,000 square feet; there formerly was a residence situated on said parcel, but it fell into disrepair and was razed; the parcel now is covered by trees and brush; the defendants also own the land situated between Worcester Road (Route 9) and the 9.61 acre tract; this land (the "Turnpike parcell") appears from Exhibit No. 5 to be comprised of four parcels with a total frontage on the Turnpike of 400.91 feet and an area of 179,738 square feet; it is in a Business District for zoning purposes; the Turnpike parcel is devoted to service establishments and on it are located a supermarket, a pizza parlor, a bank, a liquor store, an insurance office and the like (Exhibit Nos. 8C-8F inclusive, Exhibit Nos. 9A, 9B and 9C) in three separate buildings (Exhibit No.5) with the remainder of the property devoted to parking and access and egress; the Turnpike parcel is bounded westerly by Prospect Streett a town way; on the westerly side of said street in a business zone are a motel and a restaurant operated by certain of the plaintiffs, members of their families or entities in which they are interested; approximately twenty years ago a predecessor in title of the defendant sought a variance to build one or more one-story garden type office buildings on the 9.61 acre tract which then, as now, was zoned for residential purposes; the variance was granted at that time by the Framingham Zoning Board of Appeals and a Superior Court judge entered a decree that the board had not exceeded its authority; the Supreme Judicial Court reversed in Coolidge v. Zoning Board of Appeals of Framingham, 343 Mass. 742 (1962); it does not appear that said tract has been used for any purpose since the previous 1962 decision; in 1975 an article was presented to the Town Meeting to rezone the lot from a Single Residence District to a Business District, and it was voted to postpone the article indefinitely (Exhibit No. 12); in March, 1978 the defendant applied for a permit to extend the parking area one hundred feet behind the Farm Stand, a supermarket situated on the Turnpike parcel, and it was denied by the building inspector on the ground that this purpose would require a variance (Exhibit No. 10); the defendant applied for a "variance for additional parking in connection with business use of front property" (Exhibit No. 11), and the Board of Appeals held a hearing on the application on April 6, 1978; the application concerns a strip 100 feet in width which is part of the 9.61 parcel which was the subject of the Coolidge decision; after a recital of the procedural steps taken and the arguments of counsel and others relative thereto the Board's decision dated May 25, 1978 granted the variance unanimously; the reasons which the Board gave, in its decision (Exhibit No.3) were as follows:

The Board finds that there are conditions especially affecting this land which do not affect generally the Zoning district within which it is located. Although the Board is aware that the mere proximity to another zone is not in and of itself a reason to grant a variance, the Board in this case finds that the use being made of the property immediately to the south of the 100 ft. strip in question affects this 100 ft. strip in a manner different from any other land in the zoning district. Because of this unique condition, the Board finds that it would be a substantial hardship, financial or otherwise, to insist that the applicant develop the property for single residence use. Finally, the Board finds that the requested relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent and purpose of the By-Law. In this connection, the Board realizes that to a certain extent every variance derogates from the By-Law in the sense that it is inconsistent with uses specifically allowed by the By-Law. However, the Board does not feel in this case that the variance would create substantial detriment to the neighborhood, particularly in light of the restrictions which the Board intends to impose;

the Board then imposed the following restrictions in granting the variance:

1. The variance is limited to a buffer strip no greater than 100 ft. in depth as shown on the plan submitted at the public hearing.

2. At the northerly end of the new parking area, the applicant must erect, plant and maintain a ten foot wide buffer zone consisting of evergreens, to be a minimum of 6 ft. in height.

3. On both sides of the new parking area (Easterly and Westerly), the applicant must erect, plant and maintain a 25 ft. wide buffer zone consisting of evergreens, to be a minimum of 6 ft. in height.

4. There will be no access to and from the parking area fram Dana Street and if necessary the applicant will construct barriers on its property along the boundary line of Dana Street to prevent such access.

5. The variance shall be limited to the parking of automobiles only and no structures may be erected within the 100 ft. strip.

6. Any lighting erected in connection with the additional parking shall be directed down and away from abutting properties;

the plan which is referred to in the decision is Exhibit No.4; it shows the Turnpike parcel with the existing buildings thereon, the parking spaces to be utilized on that land, location of the proposed parking spaces on the locus with a ten foot wide buffer zone adjacent to its northerly boundary with trees situated within, and two twenty-five foot buffer zones adjacent to the easterly and westerly boundaries; since the decision in Coolidge one of the exits from the Turnpike parcel to Route 9 has been closed, and there is an increased traffic flow out to Prospect Street, the Massachusetts Department of Public Works having installed traffic lights at the junction of Route 9 and Prospect Street; the use of the properties on Prospect Street for at least a mile north of locus is residential other than for a former sanitarium, and the land on Dana Street at the easterly side of locus is also devoted to residential purposes; conversely the property abutting on Route 9 is highly commercial, and the contrast between it and the adjoining residential district is marked; there was testimony by an expert witness (on behalf of the defendant) that the proximity of the business district would not hinder the development of the remaining parcel involved in Coolidge for residential purposes so long as there was a buffer between it and the business district to the south.

General Laws, c. 40A, §10, as added by St. 1975, c. 808, §3, and amended by St. 1977, c. 829, §4B, revised the previous provisions relative to variances found in General Laws, c. 40A, §15 (3) by eliminating use variances unless "local ordinances or by-laws shall expressly permit variances for use." The parties have assumed this to be the case here. The changes made by chapter 808 do not, however, change the basic criteria for determining the validity of a variance. It continues to be a three pronged test in which it must be shown that

1) owing to circumstances relating to the soil conditions, shape or topography of such land or structures and especially affecting such land or structures but not affecting generally the zoning district in which it is located;

2) a literal enforcement of the provisions of the ordinance or by-law would involve substantial hardship, financial or otherwise, to the petitioner or appellant; and

3) desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of the by-law.

All of the statutory requirements must be met by findings of the Board which are to set forth the facts on which they are based, not merely parrot the language of Chapter 40A, §10. Alpert v. Board of Appeals, Mass. App. Ct. (1978) [Note 2]; Wolfson v. Sun Oil Co., 357 Mass. 87 , 89 (1970). A variance cannot be upheld unless all three parts of the test are established. Shacka v. Board of Appeals of Chelmsford, 341 Mass. 593 , 596 (1961); Cary v. Board of Appeals of Worcester, 340 Mass. 748 , 752 (1960). If any one of the necessary elements is lacking, the variance cannot stand. Lewicki v. Board of Appeals of Haverhill, Mass. App. Ct. (1979) [Note 3].

There seems to be some confusion as to whether the judge may make findings which supplement those of the local Board of Appeal and accordingly cure its invalidity. Barnhart supra, seems to say he cannot, but more recent decisions suggest that the rule now may be otherwise. Cf. O'Brian v. Board of Appeals of Brockton, 3 Mass. App. Ct. 740 (1975) and Lewicki v. Board of Appeals of Haverhill, supra, in both of which there are some indications that the deficiencies in the findings of the Board of Appeals may be cured by supplementary findings made by the judge.

In weighing the motion by the plaintiffs for summary judgment I declined to allow it on the ground that at a trial sufficient evidence might be presented for the Court to make findings which would sustain the action of the Board of Appeals without giving the Board's findings or decisions any evidentiary weight. See Josephs v. Board of Appeals of Brookline, 362 Mass. 290 , 295 (1972). The volume of traffic on Route 9 and the highly commercial nature of the 300 foot zone bordering it would appear to be strong factors supporting each of the three statutory requirements for a variance. However, the nature of the neighborhood changes dramatically at the northerly boundary of the business zone and becomes clearly residential. While proximity to the commercial district of properties zoned for residential use may be a factor to be considered in evaluating the standards for a variance, Boyajian v. Board of Appeal of Wellesley, Mass. App. Ct. (1978) [Note 4], O'Brian v. Board of Appeals of Brockton, supra at 740, proximity alone has been held insufficient to warrant a finding of substantial hardship. In Real Properties, Inc. v. Board of Appeal of Boston, 319 Mass. 180 , 183 (1946), a case on its facts very similar to the one before the Court, a decision of the Boston Board of Appeal granting a variance was annulled on the ground that extension of a shopping center would have a detrimental effect on the remainder of the residential district. See also Benjamin v. Board of Appeals of Swansea, 338 Mass. 257 , 262 (1959). In the previous Coolidge case, supra, involving the 9.61 tract the Supreme Judicial Court ruled that a variance granted solely by virtue of the contiguity of the premises to a business zone in effect was a change in the boundary of the zone which was a prerogative of a town meeting, not the Board of Appeals. While I agree with the defendants that after a lapse of time as long as that in the present case, the earlier court proceedings are not res judicata, a new variance cannot be sustained without a change in the factual situation from Coolidge I which warrants it. The changes in the relevant facts are not such as would authorize a different result from the Supreme Judicial Court's earlier decision. The access to and egress from the Turnpike parcel has changed, its commercial nature has increased and we now are concerned with a 100 foot wide strip, not a 9.61 acre tract. It must be kept in mind, however, that it is the zoning of the residential strip which the defendant seeks to change, and there was no evidence that the neighborhood surrounding it and in the same district had changed. In addition, the defendants' own witness testified that the 9.61 acre parcel of which locus is a part was suitable for residential development despite its proximity to Route 9.

On all the evidence I can find nothing to support a different conclusion than that reached by the Supreme Judicial Court in Coolidge I. I therefore rule that the decision of the zoning Board of Appeals of the Town of Framingham was in excess of its authority, and it is annulled.

While it may seem unfair that some of the plaintiffs personally have engaged in commercial activity adjacent to a residential district, such activities are confined to a district already so zoned and so far as appears from this record, they have not sought its extension.

The defendants filed a request for rulings of law on which I take the following action: requests numbers 3, 5 and 9 are granted, and the other requests are denied.

Judgment accordingly.


[Note 1] Section 17 corresponds to previous §21 of Chapter 40A. It was amended again in 1978 by St. 1978, c. 478, §32 in such a way as to eliminate the jurisdiction of this department, but cases pending at the effective date of the amendment have been retained.

[Note 2] Mass. App. Ct. Adv. Sh. (1978) 689.

[Note 3] Mass. App. Ct. Adv. Sh. (1979) 1868.

[Note 4] Mass. App. Ct. Adv. Sh. (1978) 458, 462.