Mahoney v. Board of Appeals of Winchester

• Decision Date: 04 September 1974
• Citation: 366 Mass. 228,316 N.E.2d 606
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Margaret C. MAHONEY et al. v. BOARD OF APPEALS OF WINCHESTER. & another.

Page 606

316 N.E.2d 606

366 Mass. 228

Margaret C. MAHONEY et al. v. BOARD OF APPEALS OF WINCHESTER. & another.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued April 5, 1974.

Decided Sept. 4, 1974.

Margaret C. Mahoney, Winchester, for plaintiffs.

Jack J. Moss, Winchester, for First Carriage Hill Associates, Inc.

Douglas A. Randall, Town Counsel, Wollaston, for the Board of Appeals of Winchester.

Before TAURO, C.J., and REARDON, QUIRICO, BRAUCHER and WILKINS, JJ.

QUIRICO, Justice.

By this bill in equity brought under G.L. c. 40A, § 21, the plaintiffs seek to annul the decision of the defendant board of appeals of the town of Winchester (the Board) granting the defendant First Carriage Hill Associates, Inc. (First Carriage) a comprehensive permit to construct 176 units of law and moderate income housing under the provisions of G.L. c. 40B, §§ 20--23, all inserted by St.1969, c. 774, § 1. The plaintiffs own property in Winchester abutting the property for which this comprehensive permit was granted. They bring this suit as persons allegedly 'aggrieved' by its issuance, as provided in c. 40B, § 21.

The board originally granted a permit to First Carriage by a decision dated March 3, 1972, in response to which the plaintiffs filed their original bill of complaint in the Superior Court. After several days of trial the judge remanded the case to the board in order that notice and an opportunity to be heard could be given to owners of neighboring property in addition to the abutters of the property involved. The board gave such notice, held an additional hearing on First Carriage's application, and on December 29, 1972, affirmed its previous decision. The plaintiffs thereafter filed a supplemental bill of complaint. On March 26, 1973, First Carriage filed a 'Motion for Immediate Entry of Final Decree in Favor of the Respondents,' alleging in substance that the plaintiffs' bill raised only an issue of law which had been resolved by this court in BOARD OF APPEALS OF HANOVER V. HOUSING APPEALS COMM. IN THE DEPT. OF COMMUNITY AFFAIRS, --- MASS. --- , 294 N.E.2D 393 (1973)^A, decided March 22, 1973. The motion was allowed and a final decree dismissing the plaintiffs' bill was entered. The case is before us on the plaintiffs' appeal. We affirm.

1. We first dispose of First Carriage's claim that the plaintiffs' appeal to this court was not filed within the twenty days permitted. See G.L. c. 214, § 19. There is no merit in this argument. Although the judge allowed First Carriage's motion for immediate entry of final decree on April 17, 1973, and a notation to that effect was written on the motion, the final decree was not entered until May 4. As a general rule, only the final decree itself is the subject of appeal. See Fusaro v. Murray, 300 Mass. 229, 230--231, 15 N.E.2d 228 (1938). Although there are cases in which both parties have treated the judge's informal notation of his ruling or an order for a final decree as the final decree itself, see Wallin v. Smolensky,303 Mass. 39, 42, 20 N.E.2d 406 (1939); A. J. Wolfe Co. v. Baltimore Contractors, Inc., 355 Mass. 361, 363, 244 N.E.2d 717 (1969), the parties did not do so in this case with respect to the judge's April 17 notation on the motion. First Carriage prepared and filed the final decree for entry, as it was required to do by Rule 82 of the Superior Court (1954), as amended, and it is therefore responsible for any delay between the allowance of its motion and entry of such decree. The statutory twenty-day appeal period ran from May 4, 1973, and not April 17. The plaintiffs filed their appeal seasonably on May 24.

2. Although neither First Carriage nor the board filed a demurrer and both filed answers to the plaintiffs' bill, there appears to be no factual dispute between the parties. There was no evidentiary hearing on the bill. Accordingly, the question before us is limited to whether the plaintiffs' allegations are sufficient as matter of law for them to maintain their cause of action. We hold that they are not.

The plaintiffs' allegations may be summarized as follows. General Laws c. 40B, §§ 20--23, constitutes an unlawful delegation of power and fails to set forth adequate standards to guide the board's action, in violation of the plaintiffs' constitutional rights under the Fourteenth Amendment to the United States Constitution and art. 10 of the Massachusetts Declaration of Rights. The board's action in granting the comprehensive permit to First Carriage denies the plaintiffs equal protection of the laws and due process of law in violation of the Fourteenth Amendment to the United States Constitution and the Massachusetts Declaration of Rights. By granting First Carriage an 'immunity' from the requirements of the subdivision control law and the Winchester building by-law, the board has deprived the plaintiffs of their rights, inherent in their ownership of adjacent property, to have these requirements uniformly enforced. General Laws c. 40B, §§ 22--23, by giving only the applicant for a comprehensive permit the right of appeal to the Housing Appeals Committee in the Department of Community Affairs, denies the plaintiffs their right to equal access to the courts. The board failed to satisfy the criteria required by G.L. c. 40B, § 21, prior to granting a comprehensive permit. The board failed to give proper notice of the initial hearing.

The claim that G.L. c. 40B, §§ 20--23, constitutes an unconstitutional delegation of power and is unconstitutionally vague was given extensive treatment in Board of Appeals of Hanover v. Housing Appeals Comm. in the Dept. of Community Affairs, --- Mass. ---, --- - --- ^b, 294 N.E.2d 393 (1973), and was resolved against the position argued here by the plaintiffs. Nothing need be added to our discussion in that case. The same is true of the plaintiffs' claim that they have been denied equal access to the courts on the ground that they have no right of appeal to the Housing Appeals Committee. This is in essence an argument that the different method of review afforded an applicant for a permit from one aggrieved by its issuance constitutes a denial of equal protection of the laws. In response to a contention, the reverse of what the plaintiffs raise here--that it was the applicant who was denied equal protection by virtue of being forced to appeal to the Housing Appeals Committee rather than seeking a de novo review in the Superior Court--we held in the Hanover case that 'there are no substantial differences between the alternative methods of review.' Id. at --- ^c, 294 N.E.2d at 416. And finally, to the extent that the plaintiffs' explicit allegation of a denial of equal protection constitutes a contention that G.L. c. 40B, §§ 20--23, permits unconstitutional spot zoning, the Hanover case specifically considered and rejected the claim. Id. at --- - ---, ^d 294 N.E.2d 393.

The plaintiffs' principal contention on appeal centers around their allegation concerning the subdivision...