Planning Bd. of Springfield v. Board of Appeals of Springfield

• Citation: 154 N.E.2d 349,338 Mass. 160
• Parties: PLANNING BOARD OF SPRINGFIELD v. BOARD OF APPEALS OF SPRINGFIELD et al.
• Decision Date: 03 December 1958
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 349

154 N.E.2d 349

338 Mass. 160

PLANNING BOARD OF SPRINGFIELD v. BOARD OF APPEALS OF SPRINGFIELD et al.

Supreme Judicial Court of Massachusetts, Hampden.

Argued Oct. 28, 1958.

Decided Dec. 3, 1958.

Lionel G. Angers, Springfield, for Board of Appeals of City of springfield.

Matthew J. Ryan, Jr., City Sol., and S. Thomas Martinelli, Asst. City Sol., Springfield, for Edward J. Breck et al.

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

CUTTER, Justice.

This is an appeal by the members of the board of appeals of Springfield (hereinafter referred to as the board of appeals) from a decree annulling a decision of that board 'granting a variation from the application of the zoning ordinance of * * * Springfield on property * * * located at 843 Carew Street.' The evidence designated by the parties is reported. The facts are stated below on the basis of the trial judge's findings.

One Sullivan in September, 1955, owned the premises at 843 Carew Street which consisted of two adjacent parcels of vacant land, cash 50 feet wide and 100 feet deep. These parcels were in a Residence B district under the Springfield zoning ordinance. On December 28, 1955, Sullivan applied to the board of appeals for a variance from the requirements of the zoning ordinance, § 4(a) of which provided that 'no * * * structure * * * shall be erected [in such a district] which is intended or designed to be used * * * for any * * * trade * * * or commercial purpose.' Sullivan wished to erect a one story building to be used as a hardware store or center. An earlier effort had been made unsuccessfully, by petition, early in 1955, to have the premises changed to a business zone. The members of the planning board 'acting as a board' reported adversely on this petition which was then refused.

On September 19, 1956, the board of appeals, after due notice and hearing, granted the variance prayed, subject to a restriction that Sullivan erect a cedar type picket fence, six feet high, on three of the boundaries of the two parcels. An appeal to the Superior Court was filed by the city solicitor in behalf of the members of the planning board on October 2, 1956. The members of the board of appeals filed a plea to the jurisdiction alleging in part that the members of the planning board 'have not acted in their capacity, and by virtue of the authority conferred by law upon them, as the planning board * * * and that the * * * planning board has not voted to bring this appeal, nor authorized by vote the bringing of this appeal * * * in its behalf.'

The trial judge heard the case de novo and made careful findings of fact (discussed more fully below) independent of those of the board of appeals (see Reynolds v. Board of Appeal of Springfield, 335 Mass. 464, 468-469, 140 N.E.2d 491) and ruled (1) that the board of appeals exceed its statutory authority in granting the request for a variance; and (2) that the appeal was properly before the Superior Court.

1. The facts found by the judge, which are relevant to the plea of the board of appeals, are as follows. The planning board is composed of the mayor, two other ex officio members, and six appointed members. This board was created by ordinance, the full text of which, since not in the record, is not before us (see Brown v. Neelon, 335 Mass. 357, 359-360, 140 N.E.2d 213; cf. Blanchard's Case, 335 Mass. 175, 179, 138 N.E.2d 762). The planning board was 'to have all the powers and duties granted by' G.L. c. 41, §§ 81A-81J, as amended, and was 'authorized to employ experts and clerical and other assistance.' It 'has many duties and performs many services * * * in the administrative work relating to zoning.'

One Saunders had been employed as the planning board's engineer for many years. Ten years before the hearing in the present case, the planning board had authorized him, whenever he learned that the board of appeals had made a decision affecting zoning, to confer with the city's law department. He followed this procedure in the present case and the city solicitor filed the appeal to the Superior Court 'in behalf of all the members of the planning board, reciting * * * that they composed the * * * board.' An ordinance provided that the law department should have charge of all law business of the city and its departments and that the city solicitor 'shall appear and protect the * * * interests of the city in all * * * proceedings * * * by or against any board or department.' The judge concluded that the city solicitor had authority to act for the planning board and gave weight to the presumption that public officers act legally in the performance of their duties, a presumption which had 'not been rebutted.' See e. g. Morrison v. Selectmen of Weymouth, 279 Mass. 486, 493, 181 N.E. 786; School Committee of Gloucester v. Gloucester, 324 Mass. 209, 220, 85 N.E.2d 429; Kidder v. City Council of Brockton, 329 Mass. 288, 289, 107 N.E.2d 774.

The planning board is clearly within the group which may appeal under G.L. c. 40A, § 21 (inserted by St.1954, c. 368, § 2), from a decision of the board of appeals. Section 21 gives the right of appeal to the Superior Court to 'any municipal officer or board.' The planning board is vitally concerned with zoning, so the appeal is not subject to objection of the type considered in Carr v. Board of Appeals of Medford, 334 Mass. 77, 79-80, 134 N.E.2d 10. See under earlier statute Planning Bd. of Reading v. Board of Appeals of Reading, 333 Mass. 657, 662, 132 N.E.2d 386.

The argument that the appeal to the Superior Court was not properly taken by the planning board rests on the fact that no formal vote authorizing the appeal was adopted by the planning board at a meeting prior to filing the appeal. Decisions of public boards, such as those involving eminent domain takings (Alphen v. Shadman, 330 Mass. 608, 609, 116 N.E.2d 252) and appointments to office (Kenney v. McDonough, 315 Mass. 689, 693-694, 53 N.E.2d 1006), should be made by formal action by vote at a duly constituted meeting within the rule that 'a board of public officers should act jointly and that all should have an opportunity to participate in their action.' New England Box Co. v. C & R Constr. Co., 313 Mass. 696, 701-702, 49 N.E.2d 121, 126, 150 A.L.R. 152. However, the day to day work of many public boards obviously must be carried out under authority delegated to subordinates, acting consistently with express votes of the board or in accordance with well established practices and policies approved...