Fairman v. Board of Appeal of Melrose
| Decision Date | 01 March 1954 |
| Citation | 117 N.E.2d 829,331 Mass. 160 |
| Parties | FAIRMAN et al. v. BOARD OF APPEAL OF MELROSE et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
James P. McNamara, Boston, for plaintiffs.
A. Van Allen Thomason, Boston, for defendants.
Before QUA, C. J., and LUMMUS, RONAN, WILKINS and WILLIAMS, JJ.
This is an appeal to the Superior Court in the form of a suit in equity under G.L. (Ter.Ed.) c. 40, § 30, as appearing in St.1933, c. 269, § 1, and subsequently amended, brought by persons who allege that they are residents of Melrose and property owners within the neighborhood of property of one Lieberman, to whom the defendant board granted a variance to convert a single dwelling and a carriage house in a single residence district into buildings of four apartments. The plaintiffs seek an annulment of the decision granting the variance and an injunction against the granting of a building permit by the defendant building commissioner of Melrose.
The case was heard by a judge of the Superior Court, whose findings and rulings are as follows: The defendants appealed to this court from a final decree annulling the decision of the board.
In this court the parties seem to be in agreement that the board is not established under G.L. (Ter.Ed.) c. 40, § 30, as amended. In their answer the defendants allege that there has been no acceptance of c. 40, but that the board is governed by a specified ordinance. We cannot take judicial notice of municipal ordinances and by-laws. Cerwonka v. Town of Saugus, 316 Mass. 152, 153, 55 N.E.2d 1. In their brief the defendants assert that the board was established by St.1924, c. 22, § 3, of which is quoted in full. By section 4, of c. 22, that act is to take effect upon acceptance by the board of aldermen. We cannot take judicial notice of such acceptance if that be the fact. Howes v. Town of Essex, 329 Mass. 381, 382, 108 N.E.2d 684. In their brief the plaintiffs state: 'It is conceded that the city of Melrose has adopted a zoning ordinance pursuant to the enabling statute.' We understand the statements in the briefs to be the equivalent of a stipulation that St.1924, c. 22, is the enabling statute.
Unlike G.L. (Ter.Ed.) c. 40, § 30, as amended, St.1924, c. 22 contains no provision for an appeal from a decision of the board...
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...inserted by St.1954, c. 368, § 2) a bill in equity will not lie as an appeal from such a decision. Fairman v. Board of Appeal of Melrose, 331 Mass. 160, 117 N.E.2d 829. The defendants appropriately demurred to the bill in this aspect, and the demurrers were brought to the attention of the t......
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