
    Planning Board of Framingham vs. Zoning Board of Appeals of Framingham & another.
    March 4, 1977.
   Even if we were to decide that the findings of the defendant board and those of the trial judge established the existence of a “hardship” within the meaning of G. L. c. 40A, § 15, as amended through St. 1958, c. 381 (but see Sullivan v. Board of Appeals of Belmont, 346 Mass. 81, 84-86 [1963]), neither the board nor the judge made findings sufficient to satisfy the requirement of that section that the variance could “be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of... [the zoning] by-law.” The mere repetition of the statutory language did not fill that hiatus. Wolfson v. Sun Oil Co. 357 Mass. 87, 89 (1970). Raia v. Board of Appeals of No. Reading, 4 Mass. App. Ct. 318, 322 (1976). The finding by the board and the judge that the grant of the variance would have no significant impact on traffic conditions in the area, though relevant to the quoted requirement, was insufficient without more. Compare Planning Bd. of Springfield v. Board of Appeals of Springfield, 355 Mass. 460, 462 (1969). The other factor relied upon by the judge, the proximity of the locus to a public library and to various commercial enterprises, was insignificant in light of the fact that the locus happens to be situated at the boundary between the residential zoning district in which it lies and a neighboring business district. The proximity of those uses is more appropriately a matter for consideration by the town under procedures for amending the by-law itself rather than by the board of appeals in granting variances thereunder. Coolidge v. Zoning Bd. of Appeals of Framingham, 343 Mass. 742, 745-746 (1962), and cases cited. Missing is any finding as to the overall effect of the proposed use of the locus upon other property within the same district, a necessary element in determining whether the statutory standard has been met. See Circle Lounge & Grille, Inc. v. Board of Appeal of Boston, 324 Mass. 427, 431 (1949); Everpure Ice Mfg. Co. Inc. v. Board of Appeals of Lawrence, 324 Mass. 433, 438-439 (1949); Benjamin v. Board of Appeals of Swansea, 338 Mass. 257, 261262 (1959); DiRico v. Board of Appeals of Quincy, 341 Mass. 607, 610-611 (1961). Compare Cary v. Board, of Appeals of Worcester, 340 Mass. 748, 751-753 (1960). Nor, bearing in mind that the defendants had the burden of producing evidence in support of the missing finding (Raia v. Board of Appeals of No. Reading, 4 Mass. App. Ct. at 321), can we supply that finding on the basis of the meager evidence before us relating to the effect of the proposed use. See Hunt v. Milton Sav. Bank, 2 Mass. App. Ct. 133, 138-139 (1974). Compare Cass v. Board of Appeal of Fall River, 2 Mass. App. Ct. 555, 558 (1974). It follows that the variance was improperly granted. The judgment is reversed, and a new judgment is to be entered that the decision of the board of appeals was in excess of its authority and is annulled.

Douglas A. Randall for the Planning Board of Framingham.

Aaron K. Bikofsky, Town Counsel, for the Zoning Board of Appeals of Framingham.

Robert J. Flynn for Eamonn Trust.

So ordered.  