Broderick v. Board of Appeal of Boston

• Decision Date: 23 March 1972
• Citation: 280 N.E.2d 670,361 Mass. 472
• Parties: Charles BRODERICK et al. v. BOARD OF APPEAL OF BOSTON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 670

280 N.E.2d 670

361 Mass. 472

Charles BRODERICK et al. v. BOARD OF APPEAL OF BOSTON et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Feb. 10, 1972.

Decided March 23, 1972.

Jerome M. Leonard, Dover, for plaintiffs.

William D. Quigley, Boston (Jacob I. Brier, Boston, with him), for Faulkner Hospital Corp.

Before TAURO, C.J., and SPIEGEL, REARDON and BRAUCHER, JJ.

TAURO, Chief Justice.

The plaintiffs appeal from a final decree dismissing their bills seeking annulment under St.1956, c. 665, § 11, ¹ of two decisions of the Boston board of appeals (board) granting certain variances from the city's zoning code to the Faulkner Hospital Corporation (the Faulkner) for the construction of a new hospital and a parking garage on a large parcel of land in a residential district in which the plaintiffs reside. After a hearing on the merits, the bills were dismissed for failure to file a bond in the amount of $100,000 as ordered by the trial judge.

A summary of the prior proceedings is as follows: The Faulkner on October 19, 1970, sought from the board variances to permit the erection of an eight story hospital, including doctors' offices and a five story garage accessory to the hospital in an S--3 (single family) residential district. The new hospital would replace existing hospital structures which would be demolished. On November 17, 1970, the board granted all required variances in two separate decisions. On December 8, 1970, the plaintiffs filed the bills of complaint pursuant to St.1956, c. 665, § 11, and on December 18, 1970, a bond of $1,000,000 was ordered thereunder. The order was amended to $50,000 on December 21, 1970, and a bond in such amount was filed and approved on February 2, 1971. On April 29, 1971, after our decision in DAMASKOS V. BOARD OF APPEAL OF BOSTON, MASS., 267 N.E.2D 897,^A the bond was reduced to $5,000, and on June 7, 1971, a bond in such amount was filed and approved. Later in June, there was a full hearing on the merits. The judge ordered the suits to be fused. On July 1, 1971, the judge's 'Findings, Rulings and Order for Decree' was entered. Contained therein was an interlocutory order requiring that the plaintiffs replace the $5,000 bond, previously filed, with a $100,000 bond within ten days. If the requirement was met, then a final decree was to be entered sustaining the decisions of the board; otherwise, the plaintiffs' bills of complaint were to be dismissed. The required bond was not filed and a final decree dismissing the plaintiffs' bills was entered on July 26, 1971. The plaintiffs appealed. G.L. c. 214, § 19.

1. The plaintiffs contend principally on the basis of Damaskos v. Board of Appeal of Boston, supra, that the judge erred in ordering them to post a bond in the sum of $100,000 as a prerequisite to the entry of a final decree on the merits. The plaintiffs seek reversal of the final decree and a remand of the case to the Superior Court with directions for the entry of a new final decree declaring that the board exceeded its authority, and annulling its decisions with respect to the hospital and garage.

Where there had been a full hearing on the plaintiffs' bills of complaint, we do not believe that the interlocutory order conditioning the entry of a final decree on the merits upon the posting of additional surety was correctly included in the judge's 'Findings, Rulings and Order for Decree.' We have stated in our decisions construing St.1956, c. 665, § 11, that the purpose of the requirement for the filing of a bond is to discourage frivolous and vexatious appeals from decisions of the Boston board of appeal to the Superior Court 'but not . . . unreasonably to prohibit . . . meritorious appeals.' DAMASKOS V. BOARD OF APPEAL OF BOSTON, SUPRA, AT ---, 267 N.E.2D AT 903.^B See Begley v. Board of Appeal of Boston, 349 Mass. 458, 460, 208 N.E.2d 799 (decided under predecessor statute); MCNEELY V. BOARD OF APPEAL OF BOSTON, MASS., 261 N.E.2D 336.^C We have said that when 'there has been a judicial determination of the case in the form of a final decree in the Superior Court' 'the legislative purpose is fully achieved.' For this reason, 'after the entry of the final decree, (the Superior Court judge) was without power to . . . (increase the bond) under St.1956, c. 665, § 11.' MCNEELY V. BOARD OF APPEAL OF BOSTON, SUPRA, ---, 261 N.E.2D 347^D.

In the instant case, a bond in the amount of $50,000 was ordered under § 11, and subsequently, after our Damaskos decision, the bond was reduced to $5,000. Upon considering the factors delineated in the Damaskos case, supra, at 351--352, 267 N.E.2d 897, the trial judge presumably determined that $5,000 was sufficient surety for the purpose of § 11. Once the judge had held a full hearing and made his findings and rulings, the case was ripe for the entry of a final decree on the merits. In these circumstances, the legislative purpose of the bond requirement in § 11 had been accomplished as a practical matter, and in view of our holding in the McNeely case, supra, we conclude that it was legal error to require that the plaintiffs post an increased bond as a condition for the entry of the final decree, or in the alternative, have their bill dismissed without a final decree on the merits. To conclude otherwise would be to exalt form over substance and would result, in effect, in a nullification of the rule which we laid down in the McNeely case. The plaintiffs clearly were entitled to have a final decree entered on the merits in the Superior Court.

Our holding, however, should not be construed as conferring on an appellant from a final decree in the Superior Court in a zoning case an absolute right to appeal to this court without filing a surety bond. Appeals to this court under St.1956, c. 665, § 11 (cf. G.L. c. 40A, § 21), are subject to the same statutory rules as apply in other equity proceedings. See G.L. c. 214, §§ 19--28. In appropriate circumstances after the entry of a final decree, a justice of the Superior Court or of this court under G.L. c. 214, § 22, may order, pending appeal, that a surety bond be filed by the appellant in an amount which is sufficient to protect the interests of the appellee and is otherwise appropriate. See Eastern Inv. & Dev. Corp. v. Franks, 339 Mass. 280, 292--293, 158 N.E.2d 881; Reed, Equity Pleading & Practice, § 1077 (Supp.1970). For an enumeration of factors which we require to be considered in fixing the amount of a surety bond, see Damaskos v. Board of Appeal of Boston, Mass., 267 N.E.2d 897. ^e

Having concluded as we do, there is no occasion to apply the principles of the Damaskos decision with reference to the bond ordered in the instant case. Without regard to the Damaskos decision for reasons stated above, the order for a decree dismissing the plaintiffs' bills was error and we must reverse the final decree entered pursuant to such order. Inasmuch as the trial judge's order for a decree was in the alternative, and the parties have fully argued the merits of the case, we deem it appropriate to consider and decide the case on its merits.

2. We will consider the possible decree sustaining the decisions of the board, the entry of which was ordered by the judge in the event that a bond in the sum of $100,000 was filed. This final decree was based on the judge's ultimate findings that 'each of the statutory conditions (of St.1956, c. 665, § 9) ² . . . (has) been established, and that the action of the (b)oard of (a) ppeal did not exceed its authority.' The judge made complete and adequate subsidiary findings. All the evidence before the judge is before us, including, as exhibits, photographs of the locus and the decisions of the board. In these circumstances, 'all questions of law, fact, and discretion are open for review by us and we can make findings in addition to those made by the trial judge, but we do not disturb his findings of fact unless they appear to be plainly wrong.' Rodenstein v. Board of Appeal of Boston, 337 Mass. 333, 334, 149 N.E.2d 382, 383.

The plaintiffs contend that the two prerequisites essential to the granting of a variance have not been established. First, they maintain: 'There are no conditions especially affecting the locus, but not affecting generally the zoning district in which it is situated, which would make the literal enforcement of the provisions of the (Boston) Zoning Code a hardship upon the locus or the . . . Faulkner Hospital.' The judge's findings on this point, however, were that the land area of the hospital was an irregular shaped parcel, that it contained variations in grade, extreme in some locations, and that subsoil borings revealed 'ledge refusal' in some areas. He also found that the environs were not comparable to the locus with regard to the extremity of variations of grade nor was there comparable land in size or topography in the environs. Owing to these factors, he concluded that 'any proposal to utilize the locus as a subdivision for residential housing would be economically unfeasible,' and furthermore, that unless the requested variances were granted, because of the existing hospital's functional obsolescence, the Faulkner would suffer extinction as a nonprofit community hospital serving the entire Jamaica Plain section of Boston as well as the immediate environs. Second, the plaintiffs maintain that granting of the variances is 'a substantial detriment to the public good and substantially derogates from the intent and purpose of the Boston Zoning Code.' On this point, the judge found...