McHugh v. Board of Zoning Adjustment of Boston

• Decision Date: 05 February 1958
• Citation: 336 Mass. 682,147 N.E.2d 761
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Mary E. McHUGH v. BOARD OF ZONING ADJUSTMENT OF BOSTON and another.

Page 761

147 N.E.2d 761

336 Mass. 682

Mary E. McHUGH v. BOARD OF ZONING ADJUSTMENT OF BOSTON and another.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 10, 1957.

Decided Feb. 5, 1958.

Joseph P. Graham, Boston, for plaintiff.

William D. Quigley, Asst. Corp. Counsel, Dorchester, Edmund J. Burke, Boston, with him, for defendants.

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

WHITTEMORE, Justice.

This is an appeal from a final decree in the Superior Court adjudging that a decision of the board of zoning adjustment of the city of Boston acting under St.1924, c. 488, § 20, as most recently amended by St.1952, c. 109, § 1, which extended the boundaries of a zoning district, was not in excess of its authority and that no modification of the decision was required. The evidence in the Superior Court is reported. There were no findings of fact.

The application to the board was by the defendant Lucy A. Centola, owner of premises at the southwesterly, acute angle, corner of Western Avenue and Waverly Street in the Brighton section of Boston. Both sides of Western Avenue are zoned for general business (B-65, 65 foot height) to a depth of 100 feet. The application asked and the board granted an extension of the boundary of the business zone so as to include the applicant's land on Waverly Street directly in the rear of that part of the applicant's corner property which front on Western Avenue and is zoned for business. This area is included in the general residence district (R 40, 40 foot height) as it stood prior to the board's decision. The effect of the change of boundary is to extend the business zone southwesterly on the northwesterly side of Waverly Street into an area which measures about 170 feet along the center line of Waverly Street and about 150 feet along the Waverly Street lot line, and contains, as estimated by the applicant's husband, about 10,000 square feet. The practical effect of the change will be to allow the extension into the rezoned area of the terminal, or park, for the trucks used in the business conducted on or from the applicant's Western Avenue premises.

1. The decision of the board was not invalid for want of participation of the requisite number of its members.

The statute (St.1924, c. 488, § 20, as amended) provides that 'No such change [of boundaries] shall be made except by the decision of not less than four fifths of the members of the board [twelve in number] excepting only any member or members not qualified to act, rendered after a public hearing thereon * * *. A majority of the board shall constitute a quorum for all public hearings and for all acts of the board, except that decisions changing the boundaries of districts on the zoning map or confirming a decision of the board of appeal shall be deemed to comply with this section only if the written record of such decision is signed, in case of any change of boundaries as aforesaid, by not less than four fifths, or, in case of any confirmation of a decision of the board of appeal, by not less than two thirds, of the members of the board qualified to act. If less than a majority of the board is present at any public hearing or at any executive session, the members actually present may adjourn the same by proclamation to such time and place as they deem advisable, and further notice thereof shall not be necessary. The board may adopt rules, not inconsistent with the provisins of this act, governing notice and procedure.'

The application was heard at a meeting attended by nine members. The written record of the decision was signed by ten members including two who did not attend the hearing.

Our decisions establish that an unqualified requirement that all, or a stated fraction, of the membership make the decision after a public hearing means that all who are to join in the decision must have attended the hearing. Sesnovich v. Board of Appeal of Boston, 313 Mass. 393, 396-398, 47 N.E.2d 943; Perkins v. School Committee of Quincy, 315 Mass. 47, 51-53, 51 N.E.2d 978. These decisions are broadly based. In the Sesnovich case we said in respect of St.1924, c. 488, § 19, that a 'quorum for [such unanimous] decision * * * necessarily consists of the 'entire membership of the board * * *. A 'public hearing' at which less than the 'entire membership' * * * was in attendance would not be a 'public hearing' such as is required by the statute * * *. The board, without a quorum present, would not be legally competent to hold the 'public hearing' * * *. The requirement * * * relates to the jurisdiction of the board.' But the express provision before us is qualified by the subsequent language in respect of quorum and signing, which was added by St.1925, c. 219, § 12. We think that read together, the two sentences provide that, under this section of the statute, the quorum for the public hearing does not consist of all who are to participate in the decision to make the required number for valid action but does consist of only a majority of the board. The exception stated is an exception in respect of an 'act * * * of the board,' that is, the signing of the decision. Thus, what is meant in the earlier sentence by the requirement of a 'decision of not less than four fifths of the members * * * after a public hearing' is made explicit; it is that if a majority of the board has attended the hearing a decision changing boundaries will 'comply with this section' (that is, comply with the provision for a four-fifths decision after public hearing), if, but only if, the decision is signed by the requisite four fifths of the members. Sufficient familiarity with what has occurred to enable members who sign but were not present at the hearing to exercise informed judgment is implied. See and compare Perkins v. School Committee of Quincy, 315 Mass. 47, 52-53, 51 N.E.2d 978, 981, where we said in respect of a different statute, 'We do not imply that under a statute or valid rule, different from the statute here involved, a reading of a stenographic report of evidence and arguments may not furnish a legally sufficient basis for a decision.' The difference between § 19 and § 20 in the respect under discussion tends to confirm this construction.

2. The decision of the board was, on its face, 'spot zoning' and the decree of the Superior Court sustaining it was erroneous.

Criteria for valid action by the board are stated in the statute (St.1924, c. 488, § 20, as amended) as follows: 'Either upon petition or otherwise, the board may, subject to the following conditions, change the boundaries of districts by changing the zoning map, on file at the state secretary's office, to meet altered needs of a locality, to avoid undue concentration of population, to provide adequate light and air, to lessen congestion in streets, to secure safety from fire, panic and other dangers, to facilitate the adequate provision of transportation, water, sewerage and other public requirements and to promote the health, safety, convenience and welfare of the inhabitants of the city of Boston. Such changes shall be made with reasonable consideration, among other things, of the character of the district and its peculiar suitability for particular uses, and with a view to conserving the value of buildings and encouraging the most appropriate use of land. * * * The board shall cause to be made a detailed record of all its proceedings, which record shall set forth the reasons for its decisions * * *.'

The decision of the board was in evidence. It recites: 'The board being of the opinion after hearing all the evidence in the case: (a) That the present general business boundary line of 100 ft. on Western Avenue is not of sufficient depth to accommodate many general business uses which include manufacturing and warehousing establishments, as well as truck terminals (b) That the Western Avenue area is an expanding distributing center and as such requires accessory uses for the parking of vehicular equipment and motor truck terminals (c) That it is not the expansion of the truck terminal itself that creates a difficulty, but rather the street routing of trailer trucks which may be corrected by petitioning the traffic commission to regulate this type of traffic on neighborhood streets and thus restrict truck access to Western Avenue and Waverly Street (d) That the long term highest and best use of land in this area appears to be for general business and further expansion is indicated since the small residential area is entirely surrounded by business and industrial zones (e) That due allowance should be made for modern trends in development and the continuance of a thriving distributing center so as to broaden the tax base and thus be for the best advantage of the entire municipality [the board] thus holds that the highest and best use of the land make necessary this change in use classification (1) To meet altered needs of a locality (7) To promote the health, safety, convenience and welfare of the inhabitants of the city of Boston.'

The appeal to the Superior Court is governed by the provisions of St.1924, c. 488, § 20, as appearing in St.1941, c. 373, § 19. ¹ These are similar to G.L. (Ter.Ed.) c. 40A, § 21, inserted by St.1954, c. 368, § 2. It is now well established that under such a statute it is the duty of the judge to hear the matter de novo, expressly determine the facts, and rule upon the legal validity of the decision appealed from in the light of the facts found by him. Co-Ray Realty Co., Inc. v. Board of Zoning Adjustment of Boston, 328 Mass. 103, 106, 101 N.E.2d 888; Devine v. Zoning Board of Appeals of Lynn, 332 Mass. 319, 321, 125 N.E.2d 131; Blackman v. Board of Appeals of Barnstable, 334 Mass. 446, 449, 136 N.E.2d 198.

While the decision of the board 'has no evidentiary weight' in respect of the facts relevant to test it (Devine v. Zoning Board of Appeals of Lynn, 332 Mass....