Massachusetts Feather Co. v. Aldermen of Chelsea

• Decision Date: 01 July 1954
• Citation: Massachusetts Feather Co. v. Aldermen of Chelsea, 120 N.E.2d 766, 331 Mass. 527 (Mass. 1954)
• Parties: MASSACHUSETTS FEATHER CO. v. ALDERMEN OF CHELSEA et al.
• Court: Supreme Judicial Court of Massachusetts

Page 766

120 N.E.2d 766

331 Mass. 527

MASSACHUSETTS FEATHER CO. v. ALDERMEN OF CHELSEA et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Jan. 4, 1954.

Decided July 1, 1954.

Joseph Gorfinkle, Boston, for petitioner.

Alexander E. Finger, City Sol., Boston, for respondents.

Before QUA, C. J., and LUMMUS, RONAN, WILLIAMS and COUNIHAN, JJ.

QUA, Chief Justice.

This is a petition for a writ of certiorari to quash action of the board of aldermen whereby the board purported to order the inspector of buildings to grant a permit to J. Shore and Co., Inc., for the extension and enclosing of a loading platform on its land between its building and the petitioner's building. In the Superior Court an order was entered for judgment in favor of the petitioner. The respondent aldermen appeal from the order.

Since there was no final judgment in the court below, the appeal is not here under G.L. (Ter.Ed.) c. 213, § ID, inserted by St.1943, c. 374, § 4, but since it appears that the case was heard below solely on the pleadings and a paper which was in substance a return, as hereinafter appears, we deem the case to be properly here under G.L. (Ter.Ed.) c. 231, § 96. Hannigan v. Board of Appeals of Lowell, 328 Mass. 366, 367-368, 103 N.E.2d 696.

Procedure has been most irregular. Instead of filing a formal return the respondent aldermen filed a paper in the form of an answer, and all parties, including the aldermen, joined in a statement of facts setting forth fully the proceedings before the aldermen, the action taken by them and other facts necessary to an understanding of what took place. The case was heard in the Superior Court on that basis. All parties have taken part in this method of presenting the case. No one has objected. Defects of form have been waived. We think the statement of facts as agreed may be taken as in substance a return by the aldermen, and the case may be considered on that footing. Byfield v. Newton, 247 Mass. 46, 52-53, 141 N.E. 658; Wall v. Registrar of Motor Vehicles, 329 Mass. 70, 72, 106 N.E.2d 425.

It was also irregular to join J. Shore and Co., Inc., as a party. The only proper respondents to a petition for certiorari are the members of the tribunal whose action is to be examined. Marcus v. Commissioner of Public Safety, 255 Mass. 5, 8, 150 N.E. 903; Farrell v. Mayor of Revere, 306 Mass. 221, 225, 27 N.E.2d 724; Marshall v. Registrar of Motor Vehicles, 324 Mass. 468, 469, 87 N.E.2d 7. It would have been proper, however, to hear argument from the Shore company without making it a party. Marcus v. Commissioner of Public Safety, 255 Mass. 5, 8, 150 N.E. 903. The joining of that company was an irregularity to which all parties have assented.

We come now to the merits. Before 1946 the city of Chelsea had a building ordinance regulating in detail the different classes of construction. Part II, § 6, of this ordinance provided that any person who had been refused a permit or whose permit had been revoked or who had been ordered to incur expense might appeal to the board of aldermen, and that if the action of the inspector was modified or annulled he should issue a permit in accordance with the decision of the board. In 1946 the city adopted a zoning ordinance under the authority of G.L. (Ter.Ed.) c. 40, §§ 25-30B, as appearing in St.1933, c. 269, § 1, and as amended. This ordinance provided for a board of appeals as required by § 30. ¹ That section in its first paragraph contains this sentence, 'Any board so established may also act as the board of appeals under the local building or planning ordinances or by-laws.' Under the authority so conferred by § 30 and under the general authority to enact building ordinances conferred by G.L. (Ter.Ed.) c. 143, § 3, as amended, the zoning ordinance contained in its § 19(b) a provision that appeals to the board of appeals might be taken by any person aggrieved by an order or decision or failure to act of the inspector of buildings in violation of the zoning ordinance 'or any ordinance affecting the use, construction, alterations and repair of land and buildings' (emphasis supplied). The zoning ordinance further provided in § 24 that all other ordinances of the city pertaining to the same subject matter should remain in full force and effect 'unless clearly inconsistent with any provisions of this ordinance.' The limited system of appeal to the board of aldermen contained in the prior building ordinance was 'clearly inconsistent' with the all-inclusive system of appeal to the board of appeals contained in the later zoning ordinance. There could not in reason or under the statute be two boards of appeal with jurisdiction over the same appeals. Moreover, the later rights of appeal were broader than the earlier ones. The former rights of appeal to the board of aldermen under the building ordinance were superseded by the later rights of appeal to the board of appeals.

Early in 1952 the inspector of buildings denied the application of the...