Hull v. Town of Belmont
| Decision Date | 29 May 1941 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | HARRY D. HULL v. TOWN OF BELMONT & another. |
March 5, 1941.
Present: FIELD, C.
J., DONAHUE, QUA DOLAN, & COX, JJ.
Equity Jurisdiction, Zoning. Zoning. Jurisdiction, Zoning. Supreme Judicial Court, Jurisdiction. The Supreme Judicial Court for a county, under the statutes as existing in
1939, had no jurisdiction of a suit in equity against a town in substance seeking to have a zoning by-law of the defendant declared void as to the plaintiff's land and that he be permitted to erect on his land a building which did not comply with its requirements.
BILL IN EQUITY filed in the Supreme Judicial Court for the county of Middlesex on April 17, 1939.
Upon transfer to the Superior Court, the suit was heard by Forte, J. J. F Daly, for the plaintiff, submitted a brief.
Amos L. Taylor, town counsel, (J. W. Flett & A. Leavitt Taylor with him,) for the defendants.
This is a bill in equity filed in the Supreme Judicial Court for the county of Middlesex on April 17, 1939. By order of the single justice, it was transferred to the Superior Court for said county on August 2, 1939, for final disposition. See G. L (Ter. Ed.) c. 214, Section 32. There the suit was referred to a master, whose report was confirmed by interlocutory decree, and the plaintiff appealed from a final decree dismissing the bill.
The bill alleges, in substance, that the plaintiff is the owner of a tract of land in the defendant town, a partial description of which is that it is "shown on a `Plan of Land in Belmont, Mass.' dated February 18, 1938"; that said tract was placed in the "General residential districts" under zoning by-laws adopted on January 19, 1925; that in March, 1938, the plaintiff filed a petition with the board of appeals of said town "to vary said ordinances to give him the relief here prayed for"; that this petition was denied on April 4, 1939; that on said date he filed with the inspector of buildings of said town an application to construct a restaurant on his land, which the inspector refused to consider "as the land referred to is not zoned for business purposes"; and that "Your plaintiff thereupon within fifteen days from the refusal of either the town to vary said ordinances and later the refusal of the inspector of buildings to consider his application for a permit filed this bill." There are further allegations as to the unsuitableness of the land in question for residential purposes; that the defendants are acting toward the plaintiff "and his land" in an arbitrary manner and have not accorded him such a judicial consideration as they are able to give; and that the scheme for zoning is unreasonable and capricious. It is also alleged that he has been offered a contract for the use of his land for restaurant purposes, which would be of value to him; that the by-laws, in so far as they deprive him of the right to build a restaurant, are "compelling" to the conclusion that they have no foundation in reason and are violative of the rights secured to him by the Constitution of this Commonwealth and by the Fourteenth Amendment to the Constitution of the United States. The bill prays for a mandatory injunction directing the town and the inspector of buildings, who is a defendant, to consider and pass upon any application of the plaintiff for a permit to erect the restaurant "as if said ordinance had not been enacted"; that a mandatory injunction issue directing the town to permit him to erect any lawful building upon his land "disregarding the provisions of said alleged ordinance"; that said ordinance, if held to be legally enacted, be held to be invalid in its specific application to the plaintiff's land; and for such further relief as justice may require. The defendants' answer alleges, among other things, that the plaintiff has a complete and adequate remedy at law under "General Laws, Chapter 40, Section 25-30B"; that the remedies therein contained are exclusive, superseding all other provisions of law; that there is no provision for such remedy as the plaintiff seeks; that he has a plain, complete and adequate remedy at law in addition to the remedy provided by said c. 40, especially by petition for writ of mandamus or certiorari, or other similar action; and that he has not stated any case entitling him to relief in equity, or any relief "in this action."
The defendants contend that they are entitled to a determination of the questions raised by the special matter contained in their answer, apart from any consideration of the merits. We are of opinion that the questions are open. See Beauregard v. Dailey, 294 Mass. 315 , 326. Furthermore, the question is presented whether this court has original jurisdiction of the subject matter of the bill. It is a familiar rule that it is the duty of an appellate court to consider this question upon its own motion, and that the question of jurisdiction can be raised by the parties at any stage of the proceedings. Assessors of Boston v. Suffolk
Law School, 295 Mass. 489 , 495, and cases cited. The trial judge filed no report of any findings of fact and did not disclose any reasons for the entry of the final decree dismissing the bill. The defendants contend that there was no waiver of the special matter contained in the answer. The plaintiff contends that the bill and prayers for relief follow the practice in Nectow v. Cambridge, 260 Mass. 441 .
G. L. (Ter.
Ed.) c. 40 was amended by St. 1933, c. 269, Section 1, by striking out Sections 25-30A, inclusive, and inserting other sections in their place. Section 30, as inserted, provided that municipal zoning ordinances or by-laws shall provide for a board of appeals which shall, among other things, have the power to hear and decide appeals where it is alleged by the applicant for a permit that there is error in any order or decision made by an administrative official in the enforcement of Sections 25-30A, inclusive. Said Section 30 was further amended by St. 1935, c. 388, Sections 1, 2, so as to provide that the board of appeals shall fix a reasonable time for the hearing of any appeal or other matter referred to it "or any petition for a variance," and that it might authorize upon appeal, "or upon petition in cases where a particular use is sought for which no permit is required," with respect to a particular parcel of land, a variance from the terms of such an ordinance or by-law under conditions therein specified. Section 29 as inserted by said c. 269 provides, among other things, that the inspector of buildings "shall withhold a permit for the construction or alteration" of any building that would be in violation of the ordinances. Section 30 as inserted by said chapter further provides that appeals to the board of appeals may be taken by any person aggrieved by reason of his "inability" to obtain a permit from any administrative official under the provisions of Sections 25-30A, inclusive. Prior to the adoption of the foregoing amendments, Section 27A of said c. 40 provided that a board of appeals might vary the application of any by-law or ordinance under certain conditions, and that any person aggrieved by a decision of the board might, within fifteen days after the entry of such decision, bring a petition in the Supreme Judicial Court for a writ of certiorari to correct errors of law therein. This provision as to certiorari does not appear in the sections inserted by said c. 269, Section 30 of which provides as follows: ...
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