Tutela v. Hines , 1 Mass. App. Ct. 860 ( 1973 )

This is an appeal by an abutter (the plaintiff) from a final decree of the Superior Court (G. L. c. 40A, § 21) which sustained a decision of the board of appeals of the town of Foxborough granting the owner of the locus (the defendant) a variance from the provisions of the zoning by-law for the erection and display of two single faced, free standing signs near the Foxborough entrance (in a “Highway Business District,” § IV, D, of the by-law) to an industrial park located partly in that town but mostly in the town of Mansfield. The printed record includes the trial judge’s findings, rulings and order for decree and a certification of certain exhibits (including aerial photographs); the evidence is not reported. The only contention enunciated in the plaintiff s brief which bears any relationship to the exhibits or to the judge’s findings is that the signs are excessive in size in view of the by-law provision (§ VIII, B, 3) which would otherwise limit the defendant to a single (but presumably double faced) free standing sign not exceeding forty square feet in area. “Whether a variance is within permissible limits is largely a matter of degree.” Miller v. Emergency Housing Commn. 330 Mass. 693, 698 (1953). We have examined the exhibits and the findings and find scant, if any, support for the plaintiffs contention; there is nothing which requires us to disturb the judge’s findings that the combined display of the signs would not result in substantial detriment to the public good and would not derogate substantially from the intent or purpose of the by-law. G. L. c. 40A, § 15, cl. 3. The plaintiffs brief is struck from the files for failure to include anything which can fairly be called argument within the meaning of Rule 1:15 (1) (d) of the Appeals Court. Rule 1:15 (2) (6). See Lolos v. Berlin, 338 Mass. 10, 13-14 (1958); Commonwealth v. Martin, 358 Mass. 282, 290 (1970). The final decree of the Superior Court is affirmed, with costs of appeal to the defendant.

Robert I. Kalis for the plaintiff. Ernest L. White, Jr., for John M. Hines, trustee.

So ordered.