Marotta v. Board of Appeals of Revere

• Decision Date: 10 June 1957
• Citation: 143 N.E.2d 270,336 Mass. 199
• Parties: Theresa MAROTTA and another v. BOARD OF APPEALS OF REVERE and others.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 270

143 N.E.2d 270

336 Mass. 199

Theresa MAROTTA and another v. BOARD OF APPEALS OF REVERE and others.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 7, 1957.

Decided June 10, 1957.

Walter Powers, Jr., Boston, Antonio Abbene, Jr., Revere, for plaintiffs.

Salvatore E. Aloisi, Revere, for defendants.

Before WILKINS, C. J., and RONAN, WILLIAMS, WHITTEMORE and CUTTER, JJ.

WHITTEMORE, Justice.

This is a bill in equity by way of appeal under G.L. (Ter.Ed.) c. 40A, § 21 (inserted by St.1954, c. 368, § 2) ¹ (incorrectly stated in the bill as under c. 40, § 30) from a decision of the board of appeals of the city of Revere granting a variance to Joseph A. Di Nanno and Rocco Di Nanno, who were joined as defendants by amendment, to permit them to build and operate dog kennels on property situated in an area zoned for residence. Dog kennels had been maintained on the subject property for many years, apparently under a misconception, by some or all concerned, as to the owner's right to do so. See as to kennels in residence districts Meadows v. Town Clerk of Saugus, 333 Mass. 760, 133 N.E.2d 498. The plaintiffs have appealed from the final decree of the Superior Court in which the judge ruled that the decision of the board of appeals did not exceed its authority.

The judge found, in precise accordance with an allegation of the bill which was admitted in the answer of the board of appeals but not in the answer of the Di Nannos, that the plaintiffs 'are owners of the respective property at which they reside, and are property owners determined by the board of appeals of Revere to be within the neighborhood affected by the petition * * * [for the variance].' The document entitled 'Findings and Order for Decree' also states that the plaintiffs 'have offered no evidence to sustain the allegations in their bill, but the parties agreed that the decision of the board of appeals * * * may be offered in evidence and marked exhibit A. In accordance therewith, I find * * *.' There follow findings which are in substance findings made by the board of appeals. Following these findings the judge stated, 'From a view of the locus and surrounding areas: [Paragraph] I therefore adopt the decision of the board of appeals as stipulated in their decision of August 31, 1956, and I further find that the variance as adopted will permit said premises to be used for a purpose similar in character to the use of said premises as they were at the time the zoning by-laws became effective ² and no different in character from any use provided under any special exception of the zoning by-laws, and that such use will not be detrimental to the neighborhood or to the public good, nor will it nullify and substantially derogate from the intent and purpose of said by-law.'

1. It is quite possible that the parties intended to stipulate that the facts found by the board of appeals should be deemed the facts for purposes of the appeal. The decision of the board of appeals has no evidentiary weight, Devine v. Zoning Board of Appeals of Lynn, 332 Mass. 319, 321, 125 N.E.2d 131; Lawrence v. Board of Appeals of Lynn, Mass., 142 N.E.2d 378, but is nevertheless properly admitted to show the conclusion which the board reached. Bicknell Realty Co. v. Board of Appeal of Boston, 330 Mass. 676, 679, 116 N.E.2d 570. No stipulation being needed to qualify the decision as evidence for this limited purpose, the fact of any agreement about it suggests an intention to qualify it for wider use. An agreement to this effect in open court would of course be valid, Dalton v. Post Publishing Co., 328 Mass. 595, 599, 105 N.E.2d 385, but it must appear with reasonable certainty that it was made. That does not appear here. Since the decision of the board is admissible in evidence for a limited purpose, and is necessary evidence to permit the judge to perform his function on appeal, there is no basis for the contention of the defendants that, being in evidence, the decision can be used for every purpose including one which our cases have said it does not serve.

The defendants contend that as the findings of fact are voluntary and are not in a report made under the statute (G.L. [Ter.Ed.] c. 214, § 23), and as the evidence is not reported, the entry of the final decree 'imported a finding of every fact essential to sustain it and within the scope of the pleadings.' Druzik v. Board of Health of Haverhill, 324 Mass. 129, 136, 85 N.E.2d 232, 236. This principle is of no application to the facts in respect of the right to a variance for the trial judge had made it clear that the only facts in this respect on which he based the decree are those which are stated in the board's decision and in substance restated by him. Goldston v. Randolph, 293 Mass. 253, 255, 199 N.E. 896, 103 A.L.R. 1117; Uccello v. Gold'n Foods, Inc., 325 Mass. 319, 320, 90 N.E.2d 530, 16 A.L.R.2d 459; Katz v. Katz, 330 Mass. 635, 638, 116 N.E.2d 273. We construe what the judge said in respect of the view taken by him to state that the observation which the view afforded confirmed to him the correctness of the facts set forth in the decision of the board. We do not understand the judge to state that the view gave him knowledge of new facts which, not being expressed by the judge, could, for all that appears support the decree.

In the absence of an express stipulation to establish the facts found by the board as evidence in the Superior Court we cannot rule that there was, on the appeal, that determination of facts, independent of any findings of the board, which is required under the rule. Bicknell Realty Co. v. Board of Appeal of Boston, 330 Mass. 676, 679, 116 N.E.2d 570; Lawrence v. Board of Appeals of Lynn, Mass., 142 N.E.2d 378. For this reason the decree may not stand and we need not determine whether the omissions in the concluding findings (see G.L. [Ter.Ed.] c. 40A, § 15) could be overcome by our examination of underlying facts properly found.

2. The defendants contend that the appeal to the Superior Court must fail because it does not appear that the plaintiffs are 'persons aggrieved' who alone (other than a municipal officer of board) may avail themselves of the special statutory right of appeal to the Superior Court.

The Superior Court had no jurisdiction to consider the case unless an appeal (if not by a municipal officer on board) was taken by an aggrieved person. Pattee v. Stetson, 170 Mass. 93, 94, 48 N.E. 1022; Weston v. Fuller, 297 Mass. 545, 548, 9 N.E.2d 538; First Christian Church v. Brownell, 332 Mass. 143, 147, 123 N.E.2d 603; Circle Lounge & Grille, Inc., v. Board of Appeal of Boston, 324 Mass. 427, 86 N.E.2d 920. See Carr v. Board of Appeals of Medford, 334 Mass. 77, 134 N.E.2d 10. It is immaterial that the point was not raised in the answers or before the Superior Court. Ensign v. Faxon, 224 Mass. 145, 151-152, 112 N.E. 948; Board of Assessors of Boston v. Suffolk Law School, 295 Mass. 489, 495, 4 N.E.2d 342; First Christian Church v. Brownell, 332 Mass. 143, 148, 123 N.E.2d 603. See Carey v. Planning Board of Revere, 335 Mass. ----, 139 N.E.2d 920. ³

We assume that there is some basis for the finding made by the judge, in the words of the bill, of the status and...