Damaskos v. Board of Appeal of Boston

• Citation: 267 N.E.2d 897,359 Mass. 55
• Parties: Demetrios DAMASKOS et al. v. BOARD OF APPEAL OF BOSTON et al.
• Decision Date: 16 March 1971
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 897

267 N.E.2d 897

359 Mass. 55

Demetrios DAMASKOS et al. v. BOARD OF APPEAL OF BOSTON et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Feb. 1, 1971.

Decided March 16, 1971.

Thomas G. Shapiro, Boston (William P. Homans, Jr., Boston, with him), for plaintiffs.

James F. Sullivan and George A. Goldstein, Boston, submitted a brief, for the Conway Realty Trust.

Before TAURO, C.J., and SPALDING, CUTTER, SPIEGEL and BRAUCHER, JJ.

CUTTER, Justice.

The plaintiffs, residents of Boston, by their bill in equity sought review under St.1956, c. 665, § 11, of a decision of the board of appeal of Boston granting to Conway Realty Trust (Trust) a variance from the Boston zoning ordinance for a twenty-four unit apartment house on a parcel of land of 36,099 square feet (the locus), in a general residence district in the area where the plaintiffs reside. The 'minimum lot size should be two acres.' Trust, also a defendant, filed its answer and a motion that the plaintiffs be required to file a bond under c. 665, § 11. ¹ The motion was allowed in the Superior Court on January 21, 1970. Bond was set in the amount of $50,000. No bond had been filed by March 31, 1970. Thereupon, on Trust's motion, a final decree dismissing the bill was entered. The plaintiffs appealed.

1. The plaintiffs contend that the provision in § 11, requiring a bond, imposes an unreasonable, unconstitutional limitation upon 'open and equal access to the courts.' See North Carolina v. Pearce, 395 U.S. 711, 724, 89 S.Ct. 2072, 2080, 23 L.Ed.2d 656 (appellate criminal review, once established, 'must be kept free of unreasoned distinctions'). They raise novel questions, largely of first impression in Massachusetts, not dealt with in the two earlier decisions concerning § 11. ² See Begley v. Board of Appeal of Boston, 349 Mass. 458, 460, 208 N.E.2d 799, where it was held (with a dissent by one judge based on the amount of the bond) only that § 11 did not deny the equal protection of the laws by requiring a bond only in zoning appeals to the Superior Court from the zoning board of Boston, without (see G.L. c. 40A, § 21) making a similar provision applicable to comparable appeals from zoning boards of appeal in other communities. In upholding § 11 against this contention, this court placed reliance upon the principle (see Thompson v. Chelsea, Mass., 260 N.E.2d 699) ^a that the Commonwealth's largest city may reasonably be made the subject of special legislation not applicable to other communities in the State. See also McNeely v. Board of Appeal of Boston, Mass., 261 N.E.2d 336, ^b where this court said (at page) ^c that the 'legislative purpose, among others, was to discourage frivolous and vexations appeals from the decisions of the Boston board, a condition which might not be found in comparable degree in other counties.'

The present question arises from the provision that each person appealing from a decision of the board shall file a surety bond sufficient to indemnify the person prevailing before the board 'from all damages and costs which' the prevailing party 'may sustain in case the (board's) decision * * * is affirmed.' As was pointed out in the Begley case (349 Mass. 458, 459, 461, 208 N.E.2d 799, 800, where a $15,000 bond was required), under § 11, it seems to have been assumed that the statute permitted the court to require a bond in an amount securing any substantive loss incurred by the prevailing party before the board and not merely any court costs. In the present case, the bond was set at $50,000. ³ The plaintiffs, if they had provided the bond (as a condition of having the legality of this local zoning board's decision tested judicially), would have undertaken not only to pay any necessary premium (probably a large sum) for the bond, but also to pay (within the penal sum) any loss to Trust, if the board's decision should be affirmed. The heavy financial risk of an appeal is plainly a substantial, if not prohibitive, deterrent to questioning the board's decision, even if that decision reasonably may appear to the owner of land adjacent to that owned by the successful party to be artibrary, capricious, and grossly illegal. The appealing owner may not have the resources either to obtain the necessary bond or to pay (or assume the risk of having to pay) the losses to the appellee in the event of an affirmance. The provision in § 11 for a bond securing 'from all damages,' literally interpreted, results in far more than mere discouragement of frivolous or vexatious appeals. It may constitute, for all but very wealthy aggrieved persons, a de facto denial of highly meritorious appeals.

Provisions for a bond, as a condition of judicial or other action, are not unusual. See e.g., G.L. (Ter.Ed.) c. 224, § 21 (discharge of debtor from imprisonment on supplementary process); c. 231, §§ 98, 104 (as amended through St.1965, c. 377--$100 bond on removal of District Court actions to Superior Court); c. 239, § 5 (as amended through St.1969, c. 366--appeal bond of defendant in summary process for the possession of real estate, which may be waived by court order); ⁴ c. 246, §§ 1 (as amended through St.1961, c. 158) 31, 66 (bonds in trustee process); c. 247, §§ 2, 8 (replevin); c. 250, §§ 17 (bond in petition to vacate judgment), 24 and 25 (writ of review). In some jurisdictions, statutes require security for litigation and some other expenses before certain class proceedings, such as minority stockholders' suits, may be pressed. See McKinney's Consol.Laws, c. 4, N.Y.Bus.Corp.Law, § 627 (as amended Law of N.Y.1965, c. 803, § 23); Henn. Corporations (2d ed.), § 372. Such statutes have been upheld as valid under the Fourteenth Amendment. See Cohen v. Beneficial Ind. Loan Corp., 337 U.S. 541, 550--553, 69 S.Ct. 1221, 93 L.Ed. 1528. See also Phelps v. Burnham, 327 F.2d 812, 813 (2d Cir.); Marks v. Seedman, 309 F.Supp. 332, 333--334 (S.D.N.Y.); Roach v. Franchises Intl. Inc., 32 A.D.2d 247, 249--253, 300 N.Y.S.2d 630.

Bonds also may be required, under usual equity principles, in connection with granting or dissolving injunctions and possibly other equitable relief, as matter of judicial discretion. See American Circular Loom Co. v. Wilson, 198 Mass. 182, 211, 84 N.E. 133; Thayer Co. v. Binnall, 326 Mass. 467, 480, 95 N.E.2d 193; Yakus v. United States, 321 U.S. 414, 440, 64 S.Ct. 660, 88 L.Ed. 834. See also Eastern Inv. & Dev. Corp. v. Franks, 339 Mass. 280, 292--293, 158 N.E.2d 881. That such a requirement of security is discretionary is indicated by cases under Rule 65(c) of the Federal Rules of Civil Procedure. ⁵ Despite the seemingly absolute mandate of the rule, it has been interpreted as discretionary, in part because of the italicized words (fn. 5), and in part by application of general principles of judicial discretion in granting equitable relief. See Urbain v. Knapp Bros. Mfg. Co., 217 F.2d 810, 815--816 (6th Cir.), cert. den. 349 U.S. 930, 75 S.Ct. 772, 99 L.Ed. 1260; Continental Oil Co. v. Frontier Ref. Co., 338 F.2d 780, 781--783 (10th Cir.). See also Russell v. Farley, 105 U.S. 433, 446, 26 L.Ed. 1060; Brotherhood of Locomotive Engrs. v. Missouri-Kans.-Tex. R.R., 363 U.S. 528, 533--534, 80 S.Ct. 1326, 4 L.Ed.2d 1379.

It should be noticed that, in almost all the examples, noted above, of a statute or rule requiring a party to provide security, the provision falls within one or more of the following groups: (a) it does not require substantial security; (b) there has been a prior judicial (and not merely an administrative) proceeding, and the security is a condition of relief on appeal, or of vacating a court order; or (c) modification of the requirement is possible, to some extent, as a matter of judicial discretion; or (d) it is a condition of garnishment or other attachment. Access to a court for the first time is usually unlimited, except for replevin, statutory attachments, and statutes such as those in some other States relating to a shareholders' derivative or class action, where a bond is required (usually subject to an exception that the bond requirement shall not apply if holders of a stated minimum percentage of the shares join in the action) to prevent unreasonable, frivolous, or vexatious proceedings harmful to the corporation and the greater part of its shareholders.

2. We consider St.1956, c. 665, § 11, in the light of the somewhat comparable requirements just mentioned. The zoning jurisdiction of Boston's board of appeal includes appeals under c. 665, § 8, 9, (a) from the refusal of a building or other permit under that chapter, or (b) from any order or decision of the building commissioner or other administrative official in violation of that chapter or any regulation thereunder. On appeals to the board, it may grant or withhold exceptions under § 10 (cf. G.L. c. 40A, § 4, as amended) and variances under § 9 (cf. c. 40A, § 15, as amended). We are concerned here with a review of a variance which the board has granted from zoning provisions applicable to the affected land which would have precluded Trust's proposed development in the absence of the variance. The granting of variances is subject to as strict requirements under the Boston zoning statute (St.1956, c. 665, § 9) ⁶ as under G.L. c. 40A, § 15. Comparable decisions have been rendered under the two statutes. See e.g. Real Properties, Inc. v. Board of Appeal of Boston, 319 Mass. 180, 184--185, 65 N.E.2d 199; Bicknell Realty Co. v. Board of Appeal of Boston, 330 Mass. 676, 678--680, 116 N.E.2d 570; Hurley v. Kolligian, 333 Mass. 170, 172--174, 129 N.E.2d 920; Abbott v. Appleton Nursing Home, Inc., 355 Mass. 217, 220--223, 243 N.E.2d 912. Cf. Rodenstein v. Board of Appeal of Boston, 337 Mass. 333, 336--337, 149 N.E.2d 382. No person has a legal right to a variance and they are to be granted sparingly. Di Rico v. Board of Appeals of Quincy, 341 Mass. 607, 610--611, 171 N.E.2d 144; Rose v. Board of Appeals of Wrentham, 352 Mass. 301, 303, 225 N.E.2d 63; ...