360 Mass. 872

January 4, 1972

This is an action of tort for bodily injuries and consequential damages resulting from a fall caused by a defective sidewalk on premises owned and controlled by the State of Connecticut within the defendant's fairgrounds. The case was transferred to a District Court, and the Appellate Division dismissed a report after a finding for the defendant. The case was then retransferred to the Superior Court and tried without a jury on the draft report as a statement of agreed facts. The judge found that the plaintiff wife bought a ticket from the defendant entitling her to visit the premises in question, and that there was no evidence that she was told or should have inferred that the premises were not in the defendant's control. The defendant's exceptions were specifically directed to the judge's rulings on control. In view of the scope of the invitation embodied in the ticket, control was unnecessary. There was no error. Barron v. McLellan Stores Co. 310 Mass. 778, 783-784. Rouillard v. Canadian Klondike Club, Inc. 316 Mass. 11, 12-13. Collins v. Croteau, 322 Mass. 291, 294. Compare Sherman v. Texas Co. 340 Mass. 606, 608-609; Buck v. Clauson's Inn at Coonamessett, Inc. 349 Mass. 612, 615. See Restatement 2d: Torts, Section 415 and comment b.

Exceptions overruled.


[Note 1] Her husband, Jerome Huard.


360 Mass. 872

January 5, 1972

Owners of houses in a residential A zone in Wareham seek (G. L. c. 40A, Section 21) to overturn a variance given to Daniel C. Nyman and the People's Church of the Nazarene (which had merged with another congregation) to convert its forty-year old solid frame church (locus) on Route 6, in the same residential zone, into office suites. One reason for abandoning

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the church was the heavy traffic on Route 6, where a church member's child had been killed recently. The land on the opposite side of Route 6 is zoned commercial D for about 1,500 feet, and contains a warehouse and a business enterprise. Other old houses in the residential zone have been there since before the zoning by-law was adopted in 1952. The trial judge found that "it is unrealistic to consider that the . . . [locus] could be used . . . for either single or multiple residence[s]." To demolish the church would cost about $1,500. The vacant lot then would be worth about $3,000. The approximate cost of renovating the church for dwelling use (exclusive of land cost) would be $20,000 for a single residence and $42,000 for two apartments. Three office suites could be put in the building for about $26,000. There was evidence that the locus would then be worth about $45,000. The judge's subsidiary findings are justified by the reported evidence. The judge reasonably concluded that the variance could "be granted without substantial detriment to the public good" or substantial derogation from the purpose of the by-law. In the opinion of a majority of the court, he also reasonably concluded that, in the circumstances, conditions especially affecting the locus and the old church building created a hardship not applicable to the zoning district generally. The judge correctly ruled that naming, in the notice given under G. L. c. 40A, Section 17, the record owner as applicant, without mentioning another applicant (a prospective purchaser of the locus for $15,000) did not invalidate the board's action. The purchaser's name was made known at the public hearing. Evidence strongly suggested that he would not be forced to purchase if the variance was not granted. The hardship in not being able reasonably to use this unusual, if not unique, and substantial "existing building" (see G. L. c. 40A, Section 15, as amended through St. 1958, c. 381) for any permitted purpose brings the case within authorities like Dion v. Board of Appeals of Waltham, 344 Mass. 547, 551-552, and Sherman v. Board of Appeals of Worcester, 354 Mass. 133, 134-136, rather than cases such as Bouchard v. Ramos, 346 Mass. 423, 426, McLaughlin v. Rockland Zoning Bd. of Appeals, 351 Mass. 678, 683, and Garfield v. Board of Appeals of Rockport, 356 Mass. 37, 40-41.

Decree affirmed.