Sesnovich v. Board of Appeal of Boston

• Decision Date: 29 March 1943
• Citation: 313 Mass. 393,47 N.E.2d 943
• Parties: DAVID SESNOVICH v. BOARD OF APPEAL OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

313 Mass. 393

47 N.E.2d 943

DAVID SESNOVICH v. BOARD OF APPEAL OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

March 29, 1943

November 6, 1942.

Present: FIELD, C.

J., DONAHUE, QUA COX, & RONAN, JJ.

Board of Appeal. Boston. Zoning. Public Officer. Waiver. Certiorari.

A decision under St. 1924, c. 488, Section 19, as amended, granting a variance of the Boston zoning law, made unanimously by all the members of the board of appeal, was invalid and must be quashed on certiorari where the required public hearing on the application for the variance was held by four only of the five members, although before the decision was made the absent member had examined the premises in question and had read the stenographer's report of the hearing and other relevant papers, and the decision was made at an executive meeting of the board at which all the members were present but without further public hearing.

The requirement of the presence of the "entire membership" of the board of appeal of Boston at a public hearing on an application for a variance of the zoning law under St. 1924 c. 488, Section 19, as amended, relates to the jurisdiction of the board to make the variance and cannot be waived by the parties interested in the matter.

If the respondents in a certiorari case voluntarily file a return including a record of their proceedings and it appears that their decision should be quashed, it is not proper practice under G. L. (Ter. Ed.) c. 249,

Section 4, to order that a "writ . . . issue" quashing the decision the proper order is merely that judgment quashing the decision be entered.

PETITION, filed in the Supreme Judicial Court for the county of Suffolk on February 6, 1942, and transferred to the Superior Court.

The case was heard by Collins, J. A. S. Allen, for the respondents.

H. Sesnovich, for the petitioner, submitted a brief.

FIELD, C.J. This is a petition for a writ of certiorari brought by David Sesnovich against the members of the board of appeal of the city of Boston, hereinafter referred to as the respondents to quash a purported decision of the board upon the application of Nellie A. McDonald to vary the application of the zoning law relating to the city of Boston (St. 1924, c 488, as amended) at premises 461 Commonwealth Avenue. The respondents filed a return to the petition and the case was heard in the Superior Court upon the petition and the return. An order for judgment was made that a "writ is to issue quashing the decision of the Board of Appeal granting a permit varying the application of the provisions of Ch. 488, Acts of 1924." A ruling requested by the respondents, that there "is no error of law in the action of the respondent board granting the variance of the zoning law requested by Nellie A. McDonald," was denied and the respondents claimed an exception. At the request of the respondents the judge who heard the case reported it to this court. G. L. (Ter. Ed.) c. 213, Section 1B, inserted by St. 1939, c. 257, Section 1; c. 231, Section 111.

The order for judgment made in the Superior Court was, in substance, an order for judgment quashing the decision of the board of appeal. This order was right since on the facts disclosed by the return of the respondents the board was without authority to make the decision.

The zoning law of the city of Boston, St. 1924, c. 488, as amended, in Section 19 thereof appearing in its amended form in St. 1926, c. 350, Section 1, authorizes the board of appeal provided for in Section 6 of the building law of the city of Boston, St. 1907, c. 550, and acts in amendment thereof or in addition thereto -- a board consisting of five regular members, provision being made for the designation of substitutes (Real Properties, Inc. v. Board of Appeal of Boston, 311 Mass. 430) -- to "vary the application of this act" in certain cases, but provides that no "such variance shall be authorized except by the unanimous decision of the entire membership of the board, rendered upon a written petition addressed to the board and after public hearing thereon, of which notice" shall have been given in a prescribed manner. The section provides also that the "board shall cause to be made a detailed record of all its proceedings, which record shall set forth the reasons for its decisions, the vote of each member participating therein, and the absence of a member or his failure to vote."

The return of the respondents to the petition sets forth the following record of the meetings of the board: "All members present except F. Warren Clark. Absent because of illness Board met at 9.30 a.m. January 14, 1942 Mr. William H. Ellis, Chairman of the Board stated to all attending the hearing that one of the members, Mr. F. Warren Clark, was absent because of illness, and that due to the fact that the Board cannot designate a substitute, the Law Dept. of the City of Boston has advised the Board to use the following procedure in such cases: The Board explain to those present that a member was absent: that the testimony presented at the public hearing today would be presented to Mr. Clark; that he would read same and then state to the Board when he was willing and ready to act on the case. The Board would then in executive session vote on the appeal and petition. Mr. Ellis then asked those present in favor and in opposition to the appeal and petition before the Board were they willing to proceed with the hearing under the circumstances. All present agreed to the procedure, and the Board proceeded with the hearing. . . . The Board heard the appeal and petition of Nellie A. McDonald in re varying the application of the Zoning Law at premises 461 Commonwealth Ave., Wd. 5. . . . [It is then set forth that the applicant was represented by counsel, and persons favoring the application are named.] The Board heard the following objectors to the aforementioned petition: Nathan Shienfeld, atty., 18 Tremont St. representing David Sesnovitch, owner, of 583 Beacon St., Boston . . . [and other persons named]. The Board read all data pro and con relative to the above petition. The Board took the case under advisement." "In Executive Session Boston, Mass. All members present. Board met at 9.30 a.m. January 20, 1942. Board further considered the appeal of Nellie A. McDonald . . . in re premises 461 Commonwealth Ave., Wd. 5. Due to the fact that Mr. F. Warren Clark was unavoidably absent from illness on January 14, 1942, the Board explained to Mr. Clark that at the public hearing held on January 14, 1942, the Board heard the appeal and petition of Nellie A. McDonald asking to vary the application of the Zoning Act (Section 4) so as to permit a Funeral Home at 461 Commonwealth Ave., Wd. 5, and that the Board had taken the case under advisement. Mr. F. Warren Clark said that he would read the stenographer's report of the public hearing of January 14, 1942, that he would revisit the locus in question, and would read the testimony on file and after doing same would report to the Board of his readiness to act upon the matter. . . . the Board took the case under advisement until it received a further report from Mr. Clark." "In Executive Session Boston, Mass. All members present. Board met at 9.30 a.m. January 23, 1942 Mr. F. Warren Clark made a report to the Board that he had read the appeal and petition of Nellie A. McDonald in re premises 461 Commonwealth Ave., Wd. 5, as well as having read the record of the testimony on file in this office relative to same, had re-visited the premises in question, and had read the stenographer's record of the public hearing held on January 14, 1942. Mr. Clark stated that he signified his readiness to act upon the said appeal and petition now pending before the Board. The Board further considered the appeal and petition of Nellie A. McDonald in re premises 461 Commonwealth Ave., Wd. 5. . . . it was unanimously VOTED: To vary the application of the Zoning Act (Section 4) in this specific case, and to annul the refusal of the Building Commissioner (with proviso) as set forth in full in decision on file." The return also sets forth a decision signed by five members of the board including Mr. Clark.

The authority conferred upon the board by the governing statute has been described as "quasi judicial in its nature." Coleman v. Board of Appeal of Boston, 281 Mass. 112 , 115. Important features of the statute are the provisions that no variance "shall be authorized except by the unanimous decision of the entire membership of the board" rendered "after public hearing" upon a written petition therefor addressed to the board. The meaning of "entire membership of the board" was considered in Real Properties, Inc. v. Board of Appeal of Boston, 311 Mass. 430 , and it was held (page 439) "that the `board of appeal' when acting under said Section 19 may be a board of appeal constituted for the particular case consisting of appointed members and a substitute or substitutes duly designated as such in accordance with the provisions of said Section 6" of the building law of the city of Boston. St. 1907, c. 550, as amended. According to the provisions of the statute, however, a variance can be allowed only by a "unanimous decision of the entire membership" of a board so constituted, that is, a board of five persons -- members or duly designated substitutes for members. And the express requirement of the statute that the ...