Carr v. Board of Appeals of Medford

• Decision Date: 03 May 1956
• Citation: 334 Mass. 77,134 N.E.2d 10
• Parties: John C. CARR, Jr. v. BOARD OF APPEALS OF MEDFORD et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 10

134 N.E.2d 10

334 Mass. 77

John C. CARR, Jr. v. BOARD OF APPEALS OF MEDFORD et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Jan. 5, 1956.

Decided May 3, 1956.

Lawrence R. Cohen and Albert R. Mezoff, Boston, for plaintiffs.

Mark E. Gallagher, Jr., City Sol, Boston, for Board of Appeal of Medford and another.

Israel Bloch, Lynn, for intervener.

Before QUA, C. J., and RONAN, SPALDING, WILLIAMS and COUNIHAN, JJ.

SPALDING, Justice.

This bill in equity was brought in the Superior Court by way of an appeal from a decision of the board of appeals of the city of Medford directing the building commissioner to issue a permit for the construction of a drive-in theatre.

The circumstances which gave rise to this proceeding are these. Suburban Drive-In Theatre Corp. (hereinafter called Suburban) is the owner of a tract of land in Medford which is located in a 'heavy industrial district.' Suburban, which desires to construct a drive-in theatre on the premises, applied to the building commissioner of the city for a building permit. The commissioner, purporting to act under section 11 of the city's building code, referred the application to the city council for approval. At a meeting of the city council held on November 16, 1954, it was voted that the application be denied, and the commissioner was so advised. Thereafter the commissioner denied the application. Suburban then appealed to the board of appeals which, after hearing reversed the action of the commissioner and directed him to issue the permit. ¹ From this decision the mayor and four other members of the city council by way of appeal under G.L. (Ter.Ed.) c. 40A, § 21, inserted by St.1954, c. 368, § 2, brought this bill in equity. The members of the board of appeals and the commissioner were named as defendants. Suburban was allowed to intervene as a party defendant. Findings of material facts were made by the judge and he ordered a decree to be entered that the board of appeals decision was not in excess of its authority. From a decree entered accordingly the plaintiffs appealed.

After the case had been entered in this court four of the plaintiffs, Dello Russo (the mayor) and Skerry, McDermott and Pompeo (city councillors), presented motions to withdraw as parties plaintiff and these motions were allowed. Hence the only plaintiff now prosecuting the appeal is Carr, a member of the city council.

The defendants contend that the plaintiff Carr has no standing to prosecute the appeal and we think that this contention must be sustained. The statute governing appeals from decisions of the board of appeals provides that 'Any person aggrieved by a decision of a board of appeals, whether or not previously a party to the proceeding, or any municipal officer or board, may appeal to the superior court sitting in equity for the county in which the land concerned is situated.' It will be noted that the statute makes a distinction between an appeal by a private person on the one hand and one by 'any municipal officer or board' on the other. In the former situation the appealing party must be a 'person aggrieved,' Circle Lounge & Grille, Inc., v. Board of Appeal of Boston, 324 Mass. 427, 86 N.E.2d 920; but there is no such requirement as to appeals by a municipal officer or board. David v. Board of Appeals of Reading, Mass., 132 N.E.2d 386. While the statute does not undertake to limit the right of appeal to any particular class of municipal officer or board it was intimated in the case last cited that a municipal board seeking to appeal under the similarly worded predecessor of section 21, G.L. (Ter.Ed.) c. 40, § 30, as appearing in St.1933, c. 269, § 1 must have duties which relate to the subject matter. In that case the appealing municipal board was the planning board of the town and it was held that it had standing to appeal under section 30.

The city of Medford operates under a Plan E charter and the powers and duties of its city council are set forth in G.L. (Ter.Ed.) c. 43, §§ 95-107, inserted by St.1938, c. 378, § 15, as amended. We assume without deciding that the city council acting as a body is a board within the meaning of c. 40A, § 21, and that its duties relate to the building code and zoning to such an extent that it would have standing to prosecute this appeal. But that is not the situation here. The city council never appealed as a body. Rather some of its members attempted to do so. And now, as stated above, only one member of...