Lane v. Selectmen of Great Barrington

• Decision Date: 03 May 1967
• Citation: 226 N.E.2d 238,352 Mass. 523
• Parties: Elmer W. LANE et al. v. SELECTMEN OF GREAT BARRINGTON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 238

226 N.E.2d 238

352 Mass. 523

Elmer W. LANE et al. v. SELECTMEN OF GREAT BARRINGTON et al.

Supreme Judicial Court of Massachusetts, Berkshire.

Argued April 6, 1967.

Decided May 3, 1967.

William W. Simons, Pittsfield (Abraham W. Chesney, Pittsfield, with him), for plaintiffs.

Robert J. Donelan, Great Barrington, for defendants, Horace C. Decelles and another.

Before WILKINS, C.J., and SPALDING, WHITTEMORE, CUTTER and REARDON, JJ.

WHITTEMORE, Justice.

This is an appeal by the plaintiffs from a final decree of the Superior Court in a zoning appeal under G.L. c. 40A, § 21. The selectmen of Great Barrington on July 27, 1964, granted to the defendants Horace C. Decelles and Gerald Duprey a permit for an open air motion picture theatre. The plaintiffs appealed from the selectment's decision to the board of appeals. The board of appeals ruled that the selectmen did not violate the zoning by-law or G.L. c. 40A. The appeal to the Superior Court was from the board's decision. The final decree of the Superior Court determined that the board of appeals did not exceed its authority and no modification of its decision was required. The evidence is reported.

The permit was granted under § 45.3 of the zoning by-law: 'The following uses (in a general business district) are permitted if approved by the * * * Selectmen in accordance with Article 10:45.31 Commercial amusements.' Article 10 requires written application to the board of selectmen and a public hearing 'after such notice as it may direct,' and notice to the planning board and holders of real estate who may be affected. Conditions may be imposed and '(n)o approval shall be granted * * * without considering the effect upon the neighborhood and the town. * * * If a permit would result in substantial injury it shall be refused.'

The by-law in these provisions resembles that considered in GALLAGHER V. BOARD OF APPEALS OF FALMOUTH, MASS., 221 N.E.2D 756,^A where we held that the by-law gave the selectmen the statutory power expressed in G.L. c. 40A, § 4; that the procedure before the selectmen must comply with the statute; and that the appeal from the action of the selectmen is to the Superior Court under § 21, and not to the board of appeals under § 13. The holding of that case is applicable here.

Supplementing what we said in that opinion, we note the following. By G.L. c. 40A, § 13, an appeal to the board of appeals is from a decision of an 'administrative official.' ¹ The selectmen of Great Barrington, although by article 12 of the by-law they are the enforcing officers, are not acting as administrative officials in exercising their discretion under article 10. Appeals in respect of permits granted or withheld under the discretionary power to provide exceptions are, by the express provisions of G.L. c. 40A, § 4, to the Superior Court. Section 4 provides that the power given by that section may be either in the board of appeals or the selectmen. If the * * * selectmen are designated to act upon such a special permit they shall be subject to the requirements of sections eighteen (procedure), nineteen (procedure), twenty (limitation on reconsideration) and twenty-one (appeals to the Superior Court) in the same manner as the board of appeals.'

Article 11 of the by-law, providing for the board of appeals, is consistent with the statute: 'Section 113--Appellate Jurisdiction The Board of Appeals shall hear and decide appeals from and review any order, requirements, decision, or determination made by the Building Inspector or other officer charged with the enforcement of this by-law. Such appeals may be taken to the Board by any officer or board of the town, or by any person aggrieved by such order, requirement, decision, or determination, following the procedure established under Sections 16 ² and 17 of Chapter 40A of the General Laws as amended.'

The appeal to the Superior Court must be dismissed as the Superior Court lacked jurisdiction. No appeal from the selectmen's decision was taken within the twenty day period as required by G.L. c. 40A, § 21. Inasmuch, however, as the issue of the invalidity of a permit may be raised by appropriate parties notwithstanding the absence of a valid appeal, Brady v. Board of Appeals of Westport, 348 Mass. 515, 518--521, 204 N.E.2d 513, we note that, according to the evidence in the Superior Court, there were defects in the statutory procedure before the selectmen. General...