MARION L. HURLEY vs. J. MARK KOLLIGIAN & another, trustees, & others.

SPALDING, J. This is a bill in equity under G. L. (Ter. Ed.) c. 40, Section 30, as appearing in St. 1933, c. 269, Section 1, as amended, by way of appeal from a decision of the board of appeals granting a variance with respect to the use of certain property in Cambridge as an off-street parking lot. The judge made findings of fact and an order for decree, and pursuant thereto a decree was entered that the decision of the board did not exceed its authority and that no modification of it was required. The plaintiff appealed. The case comes here with a report of the evidence.

There is virtually no dispute as to the facts. Facts found by the judge and by us are these. J. Mark Kolligian and Koren Kolligian are trustees of the Kolligian Realty Trust and will hereinafter sometimes be referred to as the defendants. The realty trust owns a brick building at 456

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Broadway, Cambridge, which it leases to Kolligian Motors, Inc., hereinafter called the corporation, of which J. Mark and Koren Kolligian are officers. Since 1945, the corporation has carried on the business of selling, repairing, and servicing automobiles on these premises as a nonconforming use. In 1953 the realty trust acquired title to two parcels of real estate located at 452 and 450-450A Broadway. These premises are adjacent to the garage occupied by the corporation, and consist of two stucco apartment houses. It is the area in the rear of these apartment houses that is involved in this litigation. The defendants desire to use this space for parking twenty automobiles, five in the rear of number 452 and fifteen in the rear of numbers 450-450A. The area is reached by a driveway running between the two parcels from Broadway. Part of the area here involved is in a Residence C-1 district and part is in a Residence C-2 district. With minor exceptions not here material business and commercial uses are prohibited in both districts. The intended use of the area would be related to the conduct of the business of selling and repairing automobiles carried on at 456 Broadway by the corporation. The defendants concede that without a variance the use of the area for a parking space accessory to the business of the corporation would not be permissible, and to obtain such a variance the defendants applied to the board of appeals.

Finding that streets in the vicinity were congested, that it would be an unnecessary hardship on the defendants to deny the variance, that such a variance (with restrictions) would not detract from the residential character of the neighborhood but would serve it in its need for parking space, and that the variance, if granted, would not derogate from the intent and purpose of the city's zoning ordinance, the board of appeals granted the variance, subject, however, to certain restrictions. [Note 1]

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With respect to the character of the neighborhood the judge made these findings. "Almost directly opposite the locus is situated the Rindge Manual Training School . . . and closely adjoining the latter is the Cambridge High and Latin School. Both . . . institutions carry large enrollments of scholars, and . . . large teaching staffs, bringing into the immediate vicinity numerous automobiles during school hours. The locus is a very short distance . . . from the yard of Harvard College . . .. The general locality . . . can be properly termed residential save for . . . a small number of stores, [and] a second garage located a few hundred feet from the Kolligian Garage. The New England Telephone & Telegraph Co. has a general headquarters in a large business structure approximately 250 feet . . . from the rear . . . of the `area' in question, and a parking space accommodating a considerable number of automobiles used by employees and for business purposes of the company. An apartment house [owned by the plaintiff] comprising fifty-two apartments is contiguous to the parking area in question and the garage [of the corporation]." Thirty-five tenants as part of their tenancy are furnished with outdoor parking privileges in the rear of the apartment house.

The judge concluded that the variance would benefit the public welfare by affording relief to the overcrowding of thoroughfares by automobile traffic or automobiles parked in thoroughfares in the immediate vicinity; that "off-street" private parking spaces are in use near by but they are wholly inadequate to cope with the overcrowded conditions; that these conditions will grow worse rather than better; that the variance will benefit the community; and that the proposed use would not be detrimental to the values or enjoyment of either the adjoining properties or those in the immediate vicinity.

Under Section 30 the board of appeals was empowered to grant a variance "where, owing to conditions especially affecting such parcel but not affecting generally the zoning district in which it is located, a literal enforcement of . . . [the

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zoning ordinance] would involve substantial hardship to the appellant, and where desirable relief may be granted without substantial detriment to the public good and without substantially derogating from the intent or purpose of . . . [the ordinance], but not otherwise."

Relying heavily on Brackett v. Board of Appeal of Boston, 311 Mass. 52, the plaintiff argues that there was no hardship of the sort mentioned in Section 30. We are of opinion that this contention must be sustained. That case involved the propriety of a decision granting a variance in Boston under Section 19 of the zoning law of that city, St. 1924, c. 488. The applicant was a corporation which owned and operated a hotel. In order to alleviate its parking problem it purchased a lot near by in a general residence district and sought a variance to permit the parking of automobiles thereon. Section 19 of c. 488 provided that the board of appeal could vary the application of the zoning law "in specific cases wherein its enforcement would involve practical difficulty or unnecessary hardship and wherein desirable relief may be granted without substantially derogating from the intent and purpose of . . . [the law], but not otherwise." It was held that the "unnecessary hardship" mentioned in the statute must relate to the premises for which the variance was sought. By that test the only hardship to the corporation was with respect to its ownership of the hotel and not with respect to its ownership of the lot for which the variance was sought. Accordingly, it was held that the requirements of the statute relating to hardship had not been satisfied and that the board of appeal exceeded its authority in granting a variance.

The facts in the case at bar are substantially the same as those in the Brackett case on the issue of hardship. The hardship here does not relate to the premises for which the variance is sought. Rather it relates to other property owned by the defendants, namely the garage. As the judge found, "The intended use of the `area' would be related to the . . . business of . . . [the corporation] and to relieve overcrowded conditions within its garage, repair shops and

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salesroom." The Brackett case is, therefore, controlling unless it can be said that there are differences in the statute here involved which call for a different result. While the wording of the two statutes varies somewhat, the differences touching the matter of hardship are not such as to take the present case out of the rule in the Brackett case. If anything, the present statute makes a stronger case for the application of that principle, for it authorizes variances only "where, owing to conditions especially affecting such parcel but not affecting generally the zoning district in which it is located, a literal enforcement of . . . [the zoning ordinance] would involve substantial hardship to the appellant . . ." (emphasis supplied). The defendants stress the point that Section 30 speaks of hardship "to the appellant" whereas the statute involved in the Brackett case did not. But that difference in our opinion is not material. Under the statute in the Brackett case the hardship likewise must have been suffered by the person seeking the variance. Section 30 merely made explicit that which was implied in Section 19 of the 1924 statute.

This is the opinion of a majority of the court.

The decree is reversed and a decree is to be entered stating that the decision of the board of appeals of Cambridge was in excess of its authority and is annulled; and that the clerk of the court within thirty days after the entry of the decree send an attested copy thereof to the board and to the superintendent of buildings of Cambridge.

So ordered.