In May, 1959, one Maynard purchased over nineteen acres of land in Waltham at the northeast corner of Trapelo Road (which runs approximately east and west) and Smith Street (which runs roughly north and south). This land had a frontage of 760 feet on Trapelo Road and of 375 feet on Smith Street. The nineteen acre lot was purchased subject to two easements, one 250 feet wide granted in 1947 to Boston Edison Company (Edison), and the other a narrower grant to Algonquin Gas Transmission Company (Algonquin) for an underground pipe line. Upon the Maynard land, the southerly edge of the Edison easement runs roughly northwest and southeast and crosses Trapelo Road about 200 feet east of the junction of Trapelo Road and Smith Street. It crosses Smith Street about 180 feet north of that junction. The southerly edge of the Edison easement between Smith Street and Trapelo Road is about 350 feet long and with those two ways forms a triangle (the locus) containing about 25,000 square feet.
At the time of the 1959 purchase, the nineteen acres had
Maynard, in purchasing the land, acted as "straw" for Mr. Connolly, an attorney, and at once gave Mr. Connolly a deed of the property, which has not been recorded. The stamps on the deed to Maynard indicate that Mr. Connolly paid about $19,000 for the entire nineteen acre parcel. Within a week after the purchase, Mr. Connolly began negotiations for the sale of the locus and, before the end of May, 1959, had agreed to sell it for $25,000, provided permission to maintain a filling station upon it could be obtained.
On June 8, 1959, a petition for a change of zone for the whole nineteen acre parcel was filed with the city council. The petition was given "leave to withdraw" on December 4, 1959. On February 15, 1960, Mr. Connolly (through Maynard) applied for permission "to erect and use a filling station on Trapelo Road at the northeast corner of Smith Street." The board of appeals, after a public hearing, on May 3, 1960, voted that Maynard's "appeal ... be granted" with various restrictions as to the type of building, fencing, hours and type of use, signs, and lighting. The board at first made findings only in substantially the words of the zoning statute. See G.L.c. 40A, § 15, cl. 3 (as amended through St. 1958, c. 381).
The members of the Waltham city council and the building inspector (hereinafter collectively referred to as the council) and also Dion appealed. These appeals were heard by a Superior Court judge who made voluntary findings, rulings, and an order for a decree. A final decree was entered in each case stating that the board of appeals "did not exceed its authority by granting a variance." Dion and the council then appealed to this court. The evidence is reported.
The trial judge found essentially the facts already stated with respect to the locus, the Edison and Algonquin easements, the 1959 rezoning of the area occupied by Clevite, and the proximity of Route 128 ("about 800 feet from the" locus). He found also that "[f]or some time the ... [locus] has presented an unsightly appearance due to clandestine dumping ... which would be difficult ... effectively [to] control ... [because of] the accessibility of the
1. The trial judge's subsidiary findings are fully justified by the evidence. The judge also took a view of the locus.
The judge's conclusion, to which most serious objection is made, is that relating to special hardship affecting the locus. Maynard's predecessors in title doubtless received compensation for the injury to the lot of which the locus is a part, caused by the Edison and Algonquin easements. Special hardship affecting this lot can hardly be found by reason of their presence. These easements (as photographs in evidence show), even if paid for, did have the effect of isolating this lot from nearby residential areas, and this isolation has bearing upon whether it is reasonable to treat
It will serve no useful purpose further to summarize the evidence. The judge's findings and those of the board adequately complied with the statutory requirements. See G.L.c. 40A, § 15, cl. 3, as amended (fn. 2, supra); Barnhart v. Board of Appeals of Scituate, 343 Mass. 455, 456-457.
2. The principal basis for the council's contention that the board of appeals did not comply with c. 40A, § 15, cl. 3, appears to be that the amendment on May 20 of the board's original decision of May 3 (which was deficient under the doctrine of Gaunt v. Board of Appeals of Methuen, 327 Mass. 380, 381-382; cf. Cefalo v. Board of Appeal of Boston, 332 Mass. 178, 181) was not compliance with G.L.c. 40A, § 18. We assume that meetings of the board of appeals must be public. See G.L.c. 39, § 23A (inserted by St. 1958, c. 626, § 4; see later amendment by St. 1960, c. 437,
3. The notice of Maynard's petition to the board of appeals amply indicated that it was a petition for a variance. To grant a variance appears to have been the only action that the board of appeals had power to take on Maynard's petition that he "be allowed to erect and use a filling station" on the locus. Maynard, by his petition, seems to have sought to remove merely the zoning obstacle to his conducting a filling station on the locus. Without such a variance it would be futile for him to seek a filling station permit under any ordinance adopted pursuant to G.L.c. 143, § 3 (as amended through St. 1959, c. 607, § 2), or license to store gasoline at the locus, G.L.c. 148, § 13 (as amended through St. 1958, c. 251; see later amendment by St. 1959, c. 353, § 1). See G.L.c. 94, § 295B (as amended through St. 1957, c. 443). It would have been appropriate, in the notice of the hearing on Maynard's petition, to have
General Laws c. 40A, § 15, cl. 3, gives to the board of appeals power to authorize a variance "upon appeal, or upon petition in cases where a particular use is sought for which no permit is required" (see fn. 2, supra). We think that this somewhat confusing language
4. Maynard, holder of record title to the locus, had standing to apply for a variance. As a "straw" for Mr. Connolly, the holder of an unrecorded deed from Maynard covering the locus, Maynard in effect held the record title as fiduciary for Mr. Connolly. See Collins v. Curtin, 325 Mass. 123, 125-126; Barche v. Shea, 335 Mass. 367, 370; Kennedy v. Innis, 339 Mass. 195, 200.
5. At the outset of the hearing before the trial judge, Dion's counsel asked for a ruling that the "burden is on the ... [board of appeal] to establish by evidence that the condition precedent to any valid action by the [b]oard ... required by G.L.c. 40A, § 15, was met before the appellant is required to introduce any evidence." The trial judge refused so to rule.
This request merely asked the judge to rule which party or parties had the burden of going forward with the evidence. He did not rule upon the issue until his order for a decree. At that stage of the case, the ruling had become immaterial, because all the evidence was before the court. All parties had been given full opportunity to present any relevant evidence. There is no indication that any relevant evidence was offered and excluded. The judge appears to have made his findings after appropriate consideration of all the evidence.
Although the ruling was immaterial when made, it is appropriate to state our view that the judge ruled incorrectly. Variances are to be granted sparingly and granting them has been surrounded by many statutory safeguards. See Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555, 557-559; Stark v. Board of Appeals of Quincy, 341 Mass. 118, 121. The legislative policy of avoiding variances, except upon a clear showing that the prerequisites have been satisfied, the circumstance that no evidentiary weight may be given to the board's findings (see Devine v. Zoning Bd. of Appeals of Lynn, 332 Mass. 319, 321), and the provisions for a new hearing, viewed together, show that the burden rests upon the person seeking a variance and the board ordering a variance to produce evidence at
6. There was no prejudicial error in the admission of various items of evidence, over the objection and subject to the exception of Dion's counsel.
Decree affirmed in each case.