Pendergast v. Board of Appeals of Barnstable

• Decision Date: 06 July 1954
• Citation: 120 N.E.2d 916,331 Mass. 555
• Parties: PENDERGAST v. BOARD OF APPEALS OF BARNSTABLE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 916

120 N.E.2d 916

331 Mass. 555

PENDERGAST v. BOARD OF APPEALS OF BARNSTABLE et al.

Supreme Judicial Court of Massachusetts, Barnstable.

Argued Feb. 2, 1954.

Decided July 6, 1954.

Charles E. Cunningham, Boston, for plaintiff.

Kenneth E. Wilson, Town Counsel, Hyannis, J. Blake Thaxter, Jr., Cohasset, for defendants.

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

QUA, Chief Justice.

This is a bill in equity under G.L. (Ter.Ed.) c. 40, § 30, as appearing in St.1933, c. 269, § 1, as amended by St.1935, c. 388, § 2, ¹ by way of appeal from a decision of the board of appeals refusing to grant to the plaintiff a variance, special permit, or 'special exception' for a beach house or bath house for commercial purposes at Craigville Beach in an area zoned for residence purposes. The court ordered the board to grant a variance, and the board appeals to this court. The evidence reported.

At the very outset we are confronted by a question of the construction of that paragraph of section 30 which reads as follows, 'Any person aggrieved by a decision of the board of appeals, whether or not previously a party to the proceeding, or any municipal officer or board, may appeal to the superior court sitting in equity for the county in which the land concerned is situated; provided, that such appeal is filed in said court within fifteen days after such decision is recorded. It shall hear all pertinent evidence and determine the facts, and, upon the facts as so determined, annul such decision if found to exceed the authority of such board, or make such other decree as justice and equity may require. The foregoing remedy shall be exclusive, but the parties shall have all rights of appeal and exception as in other equity cases.'

Both parties and the judge at the hearing seem to have treated this statute as practically substituting the court for the board of appeals and giving the court the same power to grant variance that the board possesses. We do not think that is the meaning of the statute. The vesting in a court of authority to grant to order licenses, permits, or similar privileges of any kind is to say the least unusual. Especially would it be unusual to vest such authority where the granting or refusal of the license, permit, or privilege is in the nature of the exercise of administrative discretion and where the law gives no one a right to such license, permit, or privilege. It is the usual function of courts to secure and defend legal rights. The exercise by a court of licensing powers apart from questions of legal right would involve grave constitutional doubts. The statute should be so construed, if reasonably possible, as to avoid such doubts. Commonwealth v. S. S. Kresge Co., 267 Mass. 145, 148, 166 N.E. 558; Ferguson v. Commissioner of Corporations & Taxation, 316 Mass. 318, 323-324, 55 N.E.2d 618.

We do not understand that any person has a legal right to a variance. It has after been said that variances are to be granted sparingly. Tanzilli v. Casassa, 324 Mass. 113, 116-117, 85 N.E.2d 220, and cases cited. The granting of them has been surrounded by many statutory safeguards, enumerated in the paragraph numbered '3' of section 30, which grants power to boards of appeals 'To authorize upon appeal, or upon petition in cases where a particular use is sought for which no permit is required, with respect to a particular parcel of land a variance from the terms of such an ordinance or by-law where, owing to conditions especially affecting such parcel but not affecting generally the zoning district in which it is located, a literal enforcement of the provisions of the ordinance or by-law would involve substantial hardship to the appellant, and where desirable relief may be granted without substantial detriment to the public good and without substantially derogating from the intent or purpose of such ordinance or by-law, but not otherwise,' We do not believe that any person acquires a legal right to a variance by bringing himself within the terms of paragraph '3'. That paragraph merely gives a discretionary power to the board to be exercised, if at all, only on the conditions therein set forth. Most of the language of the paragraph is restrictive rather than expansive. Variance are always in derogation of the zoning system adopted by the town under its lawful powers. Since paragraph '3' confers upon the landowner only an opportunity and not a right, if the board of appeals decides against him he commonly has no right enforceable in court.

General considerations point in the same direction. Zoning has always been treated as a local matter. The creation and modification of zones are matters of municipal legislation. The board of appeals is a local board familiar with local conditions. It can deal understandingly with questions of variance. A judge of a State wide court, perhaps spending only a few days or weeks in a particular locality, is hardly a suitable tribunal for such purposes.

The statute first quoted is undoubtedly a peculiar one. The court is to 'hear all pertinent evidence and determine the facts,' and it is to act 'upon the facts as so determined'. This involves a hearing de novo and a finding of the facts by the court. This is not one of the familar instances where the court is required to accept to a greater or less extent the findings of the administrative tribunal. But what is the court to do when it has found the facts? First, it is to 'annul' the decision of the board, 'if found to exceed the authority of such board'. This is nothing more than the application of the law to the facts found and is within the usual functions of a court. Next come the words which have been productive of misunderstanding, 'or make such other decree as justice and equity may require.' We do not construe these words as opening up to the court the whole area of administrative discretion, contrary to all precedent. We construe them as requiring a decree according to law. Here again we think the court is simply to apply the law to the facts found. Such phrases as 'justice and equity' have frequently been construed as referring only to legal and equitable rights. Wells v. Child, 12 Allen 333, 334; Banaghan v. County Commissioners of Worcester, 213 Mass. 17, 19, 99 N.E....