Cefalo v. Board of Appeal of Boston
| Decision Date | 04 February 1955 |
| Citation | 332 Mass. 178,124 N.E.2d 247 |
| Parties | Ida CEFALO v. BOARD OF APPEAL OF BOSTON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
William D. Quigley, Asst. Corp. Counsel, Dorchester, for respondent.
Isadore H. Y. Muchnick, Boston (James M. McDonough, Boston, with him), for petitioners.
Before QUA, C. J., and RONAN, WILKINS, SPALDING and WILLIAMS, JJ.
This is a bill in equity filed in the Superior Court by way of 'appeal' under the zoning law of Boston, St.1924, c. 488, § 19, as appearing in St.1941, c. 373, § 18, from a decision of the board of appeal denying to the plaintiff a variance which would have permitted a 'mortician's home' in a single resident district.
The board found that the plaintiff 'did not advance sufficient reasons to cause the Board to come to the conclusion that this was a specific case where a literal enforcement of the Act involved a substantial hardship upon the appellant, nor where desirable relief might be granted without substantially derogating from the intent and purpose of the Act.' The Superior Court heard the case de novo, made findings contrary to those of the board, and ordered the board to grant the variance. The board appeals to this court.
The plaintiff contends that the board has no interest in the case and so has no right to appeal. This position cannot be maintained in view of the peculiar provisions of St.1924, c. 488, § 19, as appearing in St.1941, c. 373, § 18. This section provides that any person aggrieved by a decision of the board 'may appeal to the superior court sitting in equity.' This provision, like the similar provision applicable outside of Boston now found in G.L. (Ter.Ed.) c. 40, § 30, as appearing in St.1933, c. 269, § 1, and as most recently amended by St.1953, c. 102, has always been understood as requiring a suit in equity to be brought in court with the usual incidents of such a suit. Lambert v. Board of Appeals of Lowell, 295 Mass. 224, 3 N.E.2d 784. The suit marks the transfer of the controversy from the administrative into the judicial field. It is to be expected that such a suit will have the usual concomitants of a suit in equity including parties plaintiff and parties defendant. The practice has been uniformly in accord. That the statute itself contemplates that there will be parties on both sides of the suit is shown by the sentence reading, 'The foregoing remedy shall be exclusive, but the parties shall have all rights of appeal and exception as in other equity cases.' It is obvious that if the members of the board could not be made defendants there would be in many instances no one who could be made a defendant, and no suit could be brought. The provision of the same section that no costs shall be allowed against the board unless it acts with gross negligence or in bad faith shows that it is expected that the members of the board will be parties. And it may be added that the present remedy by bill in equity takes the place of the former remedy by certiorari under St.1924, c. 488, § 19, in which of necessity the members of the board were the parties respondent. Once it is demonstrated that the members of the board are proper parties to the suit in equity, the sentence last quoted above from the statute applies to them and they 'have all rights of appeal [to this court] and exception as in other equity cases.'
This case was decided in the Superior Court before the decision of this court in Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555, 120 N.E.2d 916, and it was decided upon the same erroneous construction of the pertinent statute, St.1924, c. 488, § 19, as appearing in St.1941, c. 373, § 18, that was applied in the Pendergast case to G.L. (Ter.Ed.) c. 40, § 30, as appearing in St.1933, c. 269, § 1. The two statutes are substantially alike in wording and must...
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