Co-Ray Realty Co. v. Board of Zoning Adjustment of Boston, CO-RAY

• Decision Date: 16 November 1951
• Docket Number: CO-RAY
• Citation: 101 N.E.2d 888,328 Mass. 103
• Parties: REALTY CO., Inc. v. BOARD OF ZONING ADJUSTMENT OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 888

101 N.E.2d 888

328 Mass. 103

CO-RAY REALTY CO., Inc. v. BOARD OF ZONING ADJUSTMENT OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 14, 1951.

Decided Nov. 16, 1951.

E. O. Proctor, Boston, for the plaintiff.

W. D. Quigley, Dorchester, for the defendants.

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

WILLIAMS, Justice.

This is a suit in equity by Co-Ray Realty Company, Inc., under St.1924, c. 488, § 20, as amended, by way of appeal from a decision of the board of zoning adjustment of the city of Boston which changed a certain area in Boston from a general residence district designated as R-40 to a general residence district designated as R-35. The case is before us on an appeal by the plaintiff from a decree of the Superior Court dismissing its appeal from the decision of the board. The case was heard upon a transcript of the proceedings before the board, certain documentary evidence, and oral testimony which is reported.

The plaintiff is the owner of a parcel of land in the changed area no the southeasterly corner of Corey and Evans roads appearing on the assessors' records as 63 Corey Road, 'vacant land.' On August 16, 1949, the building commissioner of the city of Boston issued a permit to one Morris Kaitz to construct on that part of the parcel located in Boston a twenty-eight family apartment house. Construction began on the next day. On August 29 Mary Kaitz, the owner of the land, conveyed the property to the plaintiff and the name of the latter was substituted for that of Morris Kaitz in the permit. Construction of the proposed building was interrupted by an injunction obtained by the town of Brookline on the ground that the use of the rear part of the plaintiff's land, which was in Brookline, as an adjunct to an apartment house, would violate the zoning law of Brookline. The contention of the town was sustained by this court on July 3, 1950. See Town of Brookline v. Co-Ray Realty Co., Inc., 326 Mass. 206, 93 N.E.2d 581. Thereafter, on application by the plaintiff, permission to use the Brookline portion of the land as a rear yard appurtenant to an apartment house was refused by the town authorities, and on September 28, 1950, the plaintiff filed a petition with the emergency housing commission to obtain such permission. That petition is now pending before the commission.

Meanwhile on July 26, 1950, the plaintiff's building permit was revoked. On July 28 one Ida Mae Kahn filed a petition for the redistricting for zoning purposes of an area in Boston adjoining the Brookline line which included the plaintiff's land and in all about seventeen lots upon which, except for one or two vacant lots, one and two family houses had been built. The board held a hearing on the petition on September 20 and on November 3 ordered the area in question changed from an R-40 district to an R-35 district in which the height of buildings is limited to two and one half stories and the erection of an apartment house like the one contemplated by the plaintiff is forbidden.

The plaintiff contends that the order of the board should be annulled on three grounds: '(1) The board of zoning adjustment failed to mail notice to the appellant as one of the owners of property deemed by the board to be affected within the meaning of § 20. (2) Imposition was practiced upon the board by the petitioner's attorney in advising the board, contrary to the information of which he was possessed, that the appellant in effect did not care to oppose the petition but realized the thing for him to do was to build single and two family houses. (3) The order of the board of zoning adjustment was in excess of the board's authority.'

The board of zoning adjustment of the city of Boston was established under St.1924, c. 488, § 20, in which a remedy was provided by writ of certiorari for a party aggrieved by a decision of the board. In such proceeding only errors of law apparent on the record could be corrected. The statute was amended by St.1941, c. 373, § 19, which provided that 'any person aggrieved [by a decision of the board may] * * * appeal to the superior court sitting in equity for the county of Suffolk; provided, that such appeal is filed in said court within fifteen days after such decision is recorded. It shall hear all pertinent evidence and determine the facts and, upon the facts as so determined, annul such decision if found to exceed the authority of such board, or make such other decree as justice and equity may require. The foregoing remedy shall be exclusive, but the parties shall have all rights of appeal and exception as in other equity cases.' By this amending statute appeals may be taken from the decisions of the board in the same manner as appeals from decisions of boards of appeal outside of Boston. G.L.(Ter.Ed.), c. 40, § 30, as appearing in St.1933, c. 269, § 1. An appealing party is now entitled to a hearing de novo in the Superior Court upon all evidence material to a decision of justiciable issues. Lambert v. Board of Appeals of Lowell, 295 Mass. 224, 3 N.E.2d 784. See Swan v. Justices of Superior Court, 222 Mass. 542, 548, 111 N.E. 386; Sullivan v. Municipal Court of Roxbury District, 322 Mass. 566, 572, 78 N.E.2d 618; Olson v. Zoning Board of Appeal of Attleboro, 324 Mass. 57, 84 N.E.2d 544, 7 A.L.R.2d 591; D'Ambra v. Zoning Board of Appeal of Attleboro, 324 Mass. 61, 84 N.E.2d 456; Everpure Ice Mfg. Co., Inc., v. Board of Appeals of Lawrence, 324 Mass. 433, 86 N.E.2d 906.

At the hearing on appeal there was evidence that the plaintiff received no notice of the hearing before the board and only learned of the hearing and the board's decision by chance after November 3, although in time to perfect its appeal within the limited time of fifteen days. The requirements as to notice of a hearing by the board are stated in § 20 of St.1924, c. 488, as amended by St.1941, c. 373, § 19; 'notice shall be mailed * * * to the owners of all property deemed by the board to be affected thereby as they appear in the current records of the assessing department and also advertised in a daily newspaper published in the city of Boston.' The statute is silent as to the sources from which addresses of owners shall be obtained.

No question is raised concerning the newspaper publication. Preliminary to the prescribed notices by mail an agent of the board examined the records of the assessors and of the collector. He ascertained that the plaintiff, a Massachusetts corporation, was the owner of the lot at the corner of Corey and Evans roads, that the lot was numbered 63 Corey...