Brown v. Neelon
| Decision Date | 31 January 1957 |
| Citation | 140 N.E.2d 213,335 Mass. 357 |
| Parties | Robert G. BROWN and others. v. Roger W. NEELON and others. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Chester Shatz, Boston (Marvin H. Siegel, Boston, with him) for plaintiffs.
John J. Flynn, 3d, City Solicitor, waltham, for defendants.
Before WILKINS, C. J., and RONAN, SPALDING, WILLIAMS and CUTTER, JJ.
This is a bill for declaratory relief. The bill as amended may be summarized as follows: The plaintiffs are all owners of property abutting on Tavern Square, Waltham. Under the city's zoning ordinance of 1946 Tavern Square was in a 'Residence B' zone. On September 15, 1952, Walter A. Gray, the city's building inspector, issued permits to one Neelon and one Lopez for the erection in Tavern Square of two four-family apartment houses. Prior to that, in June, 1952, the board of survey and planning for the city (hereinafter called the board), pursuant to notice by publication, held public hearings at various places in the city on the subject of a proposed new zoning ordinance. After these hearings the board, on August 7, 1952, submitted to the city council a proposed new zoning ordinance. On September 9 and 11, 1952, the council, pursuant to published notice, held public hearings on the proposed ordinance. On October 9, 1952, the board submitted a report to the council on the proposed ordinance and recommended its adoption. On December 4, 1952, the council, after notice, held further hearings on the proposed ordinance, and on December 10 the council at a first reading passed the ordinance under which Tavern Square was located in a 'Residence A-3' zone. On December 23, 1952, the council after amending the Tavern Square area from 'Residence A-3' to 'Business A' proceeded to enact the ordinance. The bill contained conclusions to the effect that the proceedings by the board and council were improper. But there were no averments of fact, other than those recited above, in support of these conclusions.
Demurrers were filed by the building inspector, the city, and the board of appeals which were sustained by interlocutory decree. From a final decree dismissing the bill as against these defendants the plaintiffs appealed. The plaintiffs also come here on exceptions to the denial of their motion to vacate the interlocutory decrees. These exceptions need not concern us, for the only question argued is the correctness of the interlocutory decrees sustaining the demurrers. This question is open for consideration upon the appeal from the final decree. G.L.(Ter.Ed.) c. 214, § 27. Gibbons v. Gibbons, 296 Mass. 89, 4 N.E.2d 1019; Rigs v. Sokol, 318 Mass. 337, 339, 61 N.E.2d 538.
The demurrers was grounded on (1) misjoinder of parties, (2) multifariousness, and (3) failure to state a case for declaratory relief. The bill is confused and artlessly drawn and it is not clear what the plaintiffs seek to have determined. The bill asks the court to determine (1) the authority of the building inspector to issue permits for the erection of the four-family apartment houses; (2) the validity of those permits; (3) the validity of the zoning ordinance as it relates to Tavern Square; and (4) the 'rights of your petitioners and the rights of the respondents named herein.' Perhaps the demurrers could have been sustained on the grounds of misjoinder or multifariousness, or both, but we need not decide those questions, for we are of opinion that they were rightly sustained on the ground that the bill failed to state a case for declaratory relief.
Although the bill does not clearly say so, it appears to have been framed to seek a declaration as to the validity of the building permits for the four-family apartment houses, and we deal with it on that footing. Under one theory advanced by the plaintiffs the entire zoning ordinance of 1952 is invalid, and accordingly the zoning ordinance of 1946, never having been repealed, is still in effect. But this does not present a case for declaratory relief. The bill, to be sure, alleges that under the ordinance of 1946 the Tavern Square area was in a 'Residence B' zone. But there is no allegation that the building permits were issued contrary to the zoning requirements of 'Residence B' areas. There is nothing in the bill setting forth these requirements. And, of course, it is not a matter of which we can take judicial notice. Boyle v. Building Inspector of Malden, 327 Mass. 564, 566, 99 N.E.2d 925. Therefore, even if we should construe the bill as alleging that the entire ordinance of 1952 was invalid, the bill still does not set forth enough to show the basis of a controversy touching the building permits. At most there is presented an academic question, the answer to which would not settle anything.
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