Bennett v. Board of Aldermen of Chelsea

• Decision Date: 12 May 1972
• Citation: 282 N.E.2d 669,361 Mass. 802
• Parties: Terence M. BENNETT v. BOARD OF ALDERMEN OF CHELSEA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 669

282 N.E.2d 669

361 Mass. 802

Terence M. BENNETT v. BOARD OF ALDERMEN OF CHELSEA.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Jan. 6, 1972.

Decided May 12, 1972.

Morris Karll, Chelsea, for respondent.

Edward D. Grayson, Boston, for petitioner.

Before CUTTER, QUIRICO, BRAUCHER, and HENNESSEY, JJ.

QUIRICO, Justice.

This is a petition for a writ of certiorari brought by Dr. Terence M. Bennett (petitioner) against the board of aldermen of the city of Chelsea (board). The relief sought by the petitioner is (a) an order quashing the action of the board denying his application for a license 'to maintain and use a building or structure as a garage or repair shop for automobiles,' ¹ and (b) an order that the board issue such a license to him. The case is before us on the board's appeal from an order of a judge of the Superior Court for judgment granting such relief to the petitioner. G.L. c. 213, § 1D, as amended by St. 1957, c. 155; and c. 249, § 4, as amended through St. 1963, c. 661, § 1.

The following are the pertinent facts taken from admissions in pleadings and in the board's return as extended by order of the judge. The petitioner was licensed to practise medicine in this Commonweath on February 5, 1970, and has since maintained an office for such practice in East Boston. On February 18, 1970, he filed a written petition with the board for a '(p)ermit to store and repair automobiles at 152 Pearl St. (in Chelsea) . . . (a)pproximately 30--35 cars maximum storage.' Attached to the petition was a letter by the petitioner to the board stating that his 'intended use of the property is to open a garage specializing in storage, maintenance, and restoration of special interest and vintage motor cars.'

The board referred the petitioner's application to its committee on public safety, to the building inspector and to the chief of police for consideration and reports. On March 30, 1970, the committee recommended the granting of the permit. On April 25, 1970, the chief of police made a report giving biographical information on the petitioner and stating that a deed conveying the premises to the petitioner had been passed on April 17, 1970, and had been recorded, but the police department made no recommendation. On April 27, the building inspector reported that after necessary repairs and alterations of the structures (other than a church), the premises would meet with his approval for the intended use.

On February 17, 1970, Joseph T. DeFelice (DeFelice) applied to the board for a license to repair automobiles on the same premises. On that date he was occupying the premises and he held a 'Class 2' or 'used car dealer's' license authorizing him to buy or sell second-hand motor vehicles on the premises. G.L. c. 140, § 58, as amended through St. 1952, c. 103, § 2.

The board's return includes a copy of a letter dated March 18, 1970, from one J. William O'Donnell (not therein otherwise identified except for his address) stating in part that the premises 'are being sold to Dr. Terry M. Bennett, who will take possession April 19, 1970. Dr. Bennett is purchasing these properties regardless of the disposition of his petition to obtain a permit for the repair and storage of automobiles. Mr. Joseph DeFelice, who is currently occupying a portion of the premises as a tenant-at-will, has been given an (e) viction (n)otice.' On March 30, 1970, the petitioner wrote the board informing it that he was purchasing the premises, that he had started construction work on the buildings, and that 'DeFelice is in the status of an evicted tenant (and) his application for a permit is thereby null and void.' He added: 'My application for a permit is the only valid application before the board at this time. . . . I intend to pursue the granting of the permit via normal legal channels in the event of any further delay or setback, as I am completely committed to opening medical offices, home and garage by mid May of this year.'

The board held a public hearing on April 27, 1970, on the application of the petitioner. Eight persons appeared and spoke in favor of the application. They were the petitioner, his lawyer, a lawyer for the corporation which had sold the premises to the petitioner about a week earlier, and five persons living in the area. These five included some officers and members of a neighborhood organization known as Community Action Programs Inter-City, Inc. (CAPIC). Five persons appeared and spoke against the application. They were DeFelice, his lawyer, and three persons living in the area. At this hearing the board assured the petitioner on several occasions that it found his personal qualifications exemplary and was solely concerned with the propriety of locating an automotive repair garage at the location of the premises.

The judge ruled (a) 'that the evidence before the . . . (board) was as matter of law insufficient to warrant the denial of the license to the petitioner,' and 'that the denial of the petitioner's application was arbitrary and capricious, and abuse of discretion constituting error of law.' General Laws c. 249, § 4, as amended, provides in part that, 'It shall be open to the petitioner to contend at the hearing upon the petition (for a writ of certiorari) that the evidence which formed the basis of the action complained of . . . was as matter of law insufficient to warrant such action' (emphasis supplied).

In reviewing the action of the board on April 27, 1970, denying the petitioner's application, the judge did not limit himself to 'the evidence which formed the basis' of the board's action. He also considered as a fact an allegation made by the petitioner in his petition on July 10, 1970, to the effect that: '14. DeFelice, who was at the time of the hearing under a court order to vacate the Premises by June 1, 1970, vacated the Premises on June 1, 1970 and is not now engaged in any activity at the Premises.' The board's answer to that allegation was that they 'neither admit nor deny the allegations in paragraph 14, and further answering, sav that it is immaterial.' If DeFelice vacated the premises on June 1, 1970, evidence of that fact could not have been part of the evidence which formed the basis of the board's action on April 27, 1970, which the judge quashed. The event on the later date was not relevant to the validity of the board's action on the earlier date, and it was error for the judge to consider it in ruling that the evidence before the board was insufficient to warrant its denial of the petitioner's application.

We hold that the judge's...