Gamer v. Zoning Bd. of Appeals of Newton

• Decision Date: 09 January 1964
• Citation: 195 N.E.2d 772,346 Mass. 648
• Parties: Israel A. GAMER et al. v. ZONING BOARD OF APPEALS OF NEWTON, et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 772

195 N.E.2d 772

346 Mass. 648

Israel A. GAMER et al. v. ZONING BOARD OF APPEALS OF NEWTON, et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Nov. 7, 1963.

Decided Jan. 9, 1964.

George Waldstein, Boston, for plaintiffs.

Martin W. Cohen, Boston, for defendants.

Before SPALDING, WHITTEMORE, CUTTER, KIRK and SPIEGEL, JJ.

WHITTEMORE, Justice.

The plaintiffs have appealed from the final decree of the Superior Court that upheld a decision of the Zoning Board of Appeals of the city of Newton. The board's decision had dismissed an appeal to it under G.L. c. 40A, §§ 13, 15, and 16.

The controversy arose from the Public Building Commissioner's grant of a building permit on December 8, 1961, to the defendant William R. Stevenson, applicable to a lot on Montvale Road, referred to as lot 23. The plaintiffs are neighbors of Stevenson and on January 11, 1962, sent a letter to the Zoning Board of Appeals purporting to appeal from that action. ¹

The board and the Superior Court both ruled that the appeal to the board was not timely. General Laws c. 40A, as then in force, provided, in § 13, second paragraph: 'A zoning ordinance or by-law may prescribe a reasonable time within which appeals under this section may be taken'; in § 16: that appeals to the board 'be taken within the time prescribed by ordinance or by-law * * * [or, if there is no time so prescribed] within a reasonable time provided by rule of the board of appeals.' ² The zoning ordinance required that appeal be taken within five days.

The plaintiffs contend that five days was not a reasonable time, so that the ordinance was invalid and there is no limit on the right of appeal. We agree that persons aggrieved who were not parties to the proceedings before the Building Commissioner to obtain a permit should not be barred from seeking relief because they did not appeal within five days. But the consequence is not that such persons could appeal at any time, but rather that their only means for relief is a petition for writ of mandamus to enforce the zoning ordinance. See Dodge v. Inspector of Bldgs. of Newburyport, 340 Mass. 382, 385-386, 164 N.E.2d 309; Van Arsdale v. Provincetown, 344 Mass. 146, 151, 181 N.E.2d 597; Kolodny v. Building Com'r of Brookline, Mass., 191 N.E.2d 691, ^a and cases cited. There is no basis for concluding that persons who may be aggrieved by the construction of a building pursuant to the issuance of a permit must have a right of appeal from such issuance.

A substantive issue has been argued and we deem it appropriate to express our views on that issue. MacKenzie v. School Committee of Ipswich, 342 Mass. 612, 614, 174 N.E.2d 657.

The issue argued is whether in 1961 lot 23 was in common ownership wigh lot 24 under that part of § 23.8(d) of the zoning ordinance which provides that '* * * if, at any time subsequent to 1950, two or more contiguous lots with frontage upon a common street shall be in common ownership * * * paragraphs (a) and (b) [the provisions of § 23.8 stating minimum lot sizes] shall apply to the extent that it is possible by combining such lots * * * to provide one or more lots each of which complies, or more nearly complies * * * with said paragraphs (a) and (b).'

The judge in the Superior Court, differing from the board, ruled that 'common ownership' was inclusive of beneficial ownership and found that in 1961 Daniel Mordecai, predecessor in title of Stevenson, had been the owner of lot 23 at a time when he was also beneficial owner of lot 24 which he had conveyed to his son for a nominal consideration as a 'gift.' The judge found also...