Marinelli v. Bd. of Appeal of Bldg. Dep't of City of Boston

• Decision Date: 03 April 1931
• Citation: 275 Mass. 169,175 N.E. 479
• Parties: MARINELLI et al. v. BOARD OF APPEAL OF BUILDING DEPARTMENT OF CITY OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

275 Mass. 169

175 N.E. 479

MARINELLI et al.

v.BOARD OF APPEAL OF BUILDING DEPARTMENT OF CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

April 3, 1931.

Exceptions from Supreme Judicial Court, Suffolk County.

Petition for writ of certiorari by Giacomo Marinelli and others against the Board of Appeal of the Building Department of the City of Boston. Petitioners excepted to denial of motion for further return and to dismissal of petition.

Exceptions overruled.

F. R. Walsh, of Boston, for plaintiffs.

L. Schwartz, of Boston, for defendant.

RUGG, C. J.

This is a petition for a writ of certiorari for examination of errors of law alleged to exist upon the record of proceedings of the respondent board touching its action in varying the application of the zoning law of Boston. The exceptions are to the denial of a motion by the petitioners for a further return and to the dismissal of the petition.

The return of the respondent board shows that the City Fuel Company and the New York, New Haven & Hartford Railroad Company appealed from a decision of the building commissioner denying application for permit for use of certain premises and petitioned to the respondent board to vary the application of the zoning law, St. 1924, c. 488, in order to enable the construction of a hopper, a coal pocket, scales, office building and storage space on designated land. Such construction was forbidden by the zoning law because the land was located within a residence area. The reasons set forth by the respondent board for varying the application of the zoning act in substance are that the land in question is in a freight yard of the New York, New Haven & Hartford Railroad Company and had been used for that purpose for a number of years before the enactment of the zoning law, and, although within a district zoned for residential purposes, such use may be continued unde section 9 of the zoning law; that, owing to abandonment by the railroad of freight operations at Mattapan, the City Fuel Company can no longer do business there, and that the railroad orally agreed in April preceding the enactment of the zoning law to relocate the fuel company in this freight yard, which is adapted therefor, and the railroad proposes to sell or lease to the fuel company about ninety thousand square feet of land for the erection of the proposed structures; that the land cannot as a practical matter be used for residential purposes, and that unnecessary hardship and practical difficulty would be imposed upon the fuel company by denying to it the use of the land for the purpose desired. The respondent board found that the proposed used of the land would not conflict with the spirit or purpose of the zoning act, nor injure any person or property. Therefore, with the proviso that the coal pocket be kept one hundred feet back from a nearby highway, and that the elevators and coal pocket be inclosed and lined and made as near dust proof as possible, the respondent board granted the desired variance and ordered permit to be issued accordingly.

The petition to the respondent board was in the names of both the fuel company and the railroad. Though the railroad alone might have sought relief from the department of public utilities under St. 1924, c. 488, § 22, paragraph third, that paragraph is confined in its operation to public service corporations. The only channel for relief open to the fuel company was the respondent board. In these circumstances, petition and appeal by the two to the respondent board were not barred by the fact that the railroad, if alone...