Costa v. Zoning Board of Appeals

Andrew D. Costa & another v. Zoning Board of Appeals of Framingham & another

Costa v. Zoning Bd. of Appeals, 374 N.E.2d 1239 (Mass. App. Ct. 1978)

Court: Massachusetts Appeals Court · State Appellate Courts
Decided: April 25, 1978
Citations: 374 N.E.2d 12396 Mass. App. Ct. 8721978 Mass. App. LEXIS 713

Cited by 5

Opinion of the Court

Text extracted by OCR from a scanned original; check the original for exact wording.

The plaintiffs brought this action under G. L. c. 40A, § 21, as amended through St. 1972, c. 334, to annul the decision of the defendant board. The issues were before the Superior Court on a "stipulation of material facts” and eleven exhibits appended thereto. Although the judge took a view, the record does not reflect what he may have seen on that view. 1. There was nothing in the stipulation from which the judge could have inferred that, "owing to conditions especially affecting [the locus] ... but not affecting generally the zoning district in which it is located, a literal enforcement of the provisions of the... by-law would involve substantial hardship____” G. L. c. 40A, § 15(3), as in effect prior to St. 1975, c. 808, § 3. Contrast O’Brian v. Board of Appeals of Brockton, 3 Mass. App. Ct. 740 (1975), and cases cited. It was agreed that the topography and soil conditions of the locus are not different from other land in the district, and it is clear that the land is not isolated geographically from the rest of the district of which it is a part. Proximity to the sand and gravel pit could not by itself justify a variance. See Real Properties, Inc. v. Board of Appeal of Boston, 319 Mass. 180, 184 (1946); Sullivan v. Board of Appeals of Belmont, 346 Mass. 81, 84-85 (1963); Bouchard v. Ramos, 346 Mass. 423, 425-426 (1963); Garfield v. Board of Appeals of Rockport, 356 Mass. 37, 41 (1969); Wolfson v. Sun Oil Co., 357 Mass. 87, 90 (1970). Dion v. Board of Appeals of Waltham, 344 Mass. 547 (1962), upon which the board relied, is distinguishable because of the factors in that case of peat deposits making the locus unsuitable for residential use and the physical isolation of the locus from the rest of the district of which it was a part. The fact that an unused variance exists, permitting a portion of the locus to be used for an industrial use, can no more justify a finding of conditions especially affecting the locus than could the actual existence on the parcel of a nonconforming industrial use, as to which see McLaughlin v. Rockland Zoning Bd. of Appeals, 351 Mass. 678, 683 (1967). See also Benjamin v. Board of Appeals of Swansea, 338 Mass. 257, 261-262 (1959); Rafferty v. Sancta Maria Hosp., 5 Mass. App. Ct. 624, 631 (1977), and cases cited. 2. Because the necessary element of hardship affecting the locus has not been established, it is unnecessary to discuss the other possible grounds of invalidity of the variance which have been argued. Cf. Garfield v. Board of Appeals of Rockport, supra. Accordingly, the judgment is reversed, and a new judgment is to be entered that the *873 decision of the board of appeals was in excess of its authority and is annulled.

Evan T. Lawson for the plaintiffs. Aaron K. Bikofsky, Town Counsel, for the defendants.

So ordered.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

Cited by 5 cases

View all citing references →

State Appellate Courts5

Relies on it most ⓘ

Harrow v. Board of Appeals of Pittsfield391 N.E.2d 276 (Mass. App. Ct. 1979)
Ploski v. Zoning Board of Appeals of Somerset387 N.E.2d 596 (Mass. App. Ct. 1979)
Parseghian v. Board of Zoning Appeal of Cambridge386 N.E.2d 802 (Mass. App. Ct. 1979)
Lewicki v. Board of Appeals394 N.E.2d 1129 (Mass. App. Ct. 1979)
Planning Board of Sandwich v. Board of Appeals of Sandwich446 N.E.2d 1077 (Mass. App. Ct. 1983)

Most recent

Planning Board of Sandwich v. Board of Appeals of Sandwich446 N.E.2d 1077 (Mass. App. Ct. 1983)
Lewicki v. Board of Appeals394 N.E.2d 1129 (Mass. App. Ct. 1979)
Harrow v. Board of Appeals of Pittsfield391 N.E.2d 276 (Mass. App. Ct. 1979)
Parseghian v. Board of Zoning Appeal of Cambridge386 N.E.2d 802 (Mass. App. Ct. 1979)
Ploski v. Zoning Board of Appeals of Somerset387 N.E.2d 596 (Mass. App. Ct. 1979)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 10

Depth	Case	Cited by
	Garfield v. Bd. of Appeals of Rockport, 247 N.E.2d 720 (Mass. 1969)	28
	Rafferty v. Sancta Maria Hosp., 367 N.E.2d 856 (Mass. App. Ct. 1977)	61
	Dion v. Bd. of Appeals of Waltham, 183 N.E.2d 479 (Mass. 1962)	58
	McLaughlin v. Rockland Zoning Bd. of Appeals, 223 N.E.2d 521 (Mass. 1967)	37
	Real Props., Inc. v. Bd. of Appeal, 65 N.E.2d 199 (Mass. 1946)	37
	Wolfson v. Sun Oil Co., 256 N.E.2d 308 (Mass. 1970)	23
	Sullivan v. Bd. of Appeals of Belmont, 190 N.E.2d 83 (Mass. 1963)	13
	Benjamin v. Bd. of Appeals of Swansea, 154 N.E.2d 913 (Mass. 1959)	11
	Bouchard v. Ramos, 193 N.E.2d 691 (Mass. 1963)	8
	O'Brian v. Bd. of Appeals, 326 N.E.2d 728 (Mass. App. Ct. 1975)	5

`/`	Focus the search box
`j` `k`	Next / previous result
`Enter`	Open the selected result
`x`	Add / remove the selected result from the download list
`n` `p`	Next / previous search term in a case
`c`	Copy the citation of the current case
`+` `−`	Larger / smaller reading text
`?`	Show this list