Kane v. Bd. of Appeals of City of Medford

• Citation: 273 Mass. 97,173 N.E. 1
• Parties: KANE et al. v. BOARD OF APPEALS OF CITY OF MEDFORD.
• Decision Date: 11 October 1930
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

273 Mass. 97

173 N.E. 1

KANE et al.

v.BOARD OF APPEALS OF CITY OF MEDFORD.

Supreme Judicial Court of Massachusetts, Middlesex.

Oct. 11, 1930.

Exceptions from Supreme Judicial Court, Middlesex County.

Petition by Dennis J. Kane and others for writ of certiorari to review the proceedings of the Board of Appeals of the City of Medford, relative to variance in application of zoning ordinance. Petition was dismissed, and requests for ruling denied, and petitioners bring exceptions.

Exceptions sustained.

L. Bryant, of Boston, and D. B. Curnane, of Malden, for petitioners.

J. N. Johnson, of Medford, for respondent.

RUGG, C. J.

This is a petition for a writ of certiorari brought under section 27A inserted in G. L. c. 40 by St. 1924, c. 133. Its object is to examine for alleged errors of law the proceedings of the board of appeals of Medford relative to variance in the application of the zoning ordinance of that city. The case was heard on the petition and return. The petitioners requested rulings to the effect that ‘on the record and evidence in the case’ the records in question should be quashed. Reference to the evidence in these requests was impertinent. This is not one of the rare cases where evidence rightly could be received on a petition for a writ of certiorari. Selectmen of Wakefield v. Judge of District Court, 262 Mass. 477, 481, 160 N. E. 427. No evidence appears to have been offered or received. Reference to the evidence in the requests does not affect their substance. The single justice denied the petitioners' requests for rulings and ordered the petition dismissed, but not ‘as a matter of discretion.’ The petitioners excepted to the denials of the requests for rulings and to the dismissal of the petition.

The bill of exceptions raises only questions of law. The bill of exceptions is interpreted to mean that the single justice ruled as matter of law that the petitioners were not entitled to the relief sought.

By the zoning ordinance of Medford, effective in October, 1925, the land of one Calese was included in a single residence district wherein was prohibited business of all kinds. On June 10, 1929, Calese applied to the building commissioner of Medford for a permit to erect a gasoline filling station on his land. Permit was refused because forbidden by the ordinance. Thereafter Calese appealed and petitioned the respondents, the board of appeals, to vary the application of the ordinance so as to permit the erection on his land of a gasoline filling station building. The respondents, the board of appeals, according to schedule ‘B’ made a part of their return, issued a notice addressed ‘To Whom It May Concern.’ It recited the presentation of the petition by Calese ‘asking for a variance of section 4, chapter 47 of the City Ordinances, as applied to the erection of alterations in a proposed building’ on the described land of Calese ‘for the purposes as set forth in said petition. You are hereby notified to appear at a meeting of the Board to be held’ at a time and place specified ‘to show cause, if any you have, why the same should not be granted. And said petitioner is hereby directed to give public notice thereof, by publishing this citation in the Medford Mercury fourteen days before said hearing and mailing a copy of the same to all persons in interest, within a radius of two hundred feet, seven days at least before said hearing.’ Calese made oath that he had served the notice as ordered.

The return of the respondents, the board of appeals, sets out that pursuant to a standing rule they indicated to Calese that the estates affected by his petition were those within a radius of two hundred feet of his land in question, and that he then ascertained from the most recent tax list the names and addresses of the owners so affected. At the time and place fixed in the notice for hearing, but before taking testimony, the respondents, the board of appeals, ‘examined the list of addresses of owners and inspected the return postal receipts and duly determined that the petitioner [Calese] had duly and fully complied with the provisions of law relative to notice to interested parties as more fully set forth’ in a schedule ‘B’ annexed to the return. The petitioners were owners respectively of land in the area described as within two hundred feet of the premises of Calese, and with a single exception were occupants of houses situated on their respective lots. It is alleged in their petition that their several lots were subject under the zoning ordinance to similar restrictions as was the land of Calese, and it appears from the record that the petitioner Hammond was not named in the schedule ‘B’ and there is nothing to indicate that any notice was given him. This point has not been taken in argument, and no weight is attached to it in this decision. The respondents, the board of appeals, granted the petition, setting forth at some length their reasons and concluding with a decision couched largely in the words of the first sentence of said section 27A. The respondent building commissioner of Medford made return in substance that in obedience to the decision of the respondents, the board of appeals, he issued a building permit to Calese to erect a filling station on his lot.

[2] The petitioners challenge the legality of the record shown by the return in respect to the order of notice. It is required by said section 27A, as a condition precedent to the exercise of the power by a board of appeal to vary the application of a zoning ordinance or by-law, that ‘No such variance shall be authorized except by the unanimous decision of the entire membership of the board, rendered upon a written petition addressed to the board and after a public hearing thereon, of which notice shall be mailed to the petitioner and to the owners of all property deemed by the board to be affected thereby as they appear on the most recent local tax list and also advertised in a newspaper published in the city or town.’ As matter of construction this statute is a mandate to the board of appeals with...