Prusik v. Bd. of Appeal of Bldg. Dep't of City of Boston

• Decision Date: 05 March 1928
• Citation: 160 N.E. 312,262 Mass. 451
• Parties: PRUSIK et al. v. BOARD OF APPEAL OF BUILDING DEPARTMENT OF CITY OF BOSTON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

262 Mass. 451

160 N.E. 312

PRUSIK et al.

v.BOARD OF APPEAL OF BUILDING DEPARTMENT OF CITY OF BOSTON et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 5, 1928.

Report from Supreme Judicial Court, Suffolk County.

Certiorari by Anna Prusik and others against the Board of Appeal of the Building Department of the City of Boston and another, to review the action of the Board. The petition was ordered dismissed. On report for the determination of the full court. Writ to issue.Edmund Z. Dymsza, of Boston, for petitioners.

Frank S. Deland, Corp. Counsel, and Leo Schwartz, Asst. Corp. Counsel, both of Boston, for respondents.

RUGG, C. J.

This is a petition for a writ of certiorari to review the action of the respondent board in varying the application of the zoning law of the city of Boston. The function of the writ of certiorari is ‘to enable a party without remedy by appeal, exception or other mode of correcting errors of law committed against his rights, to bring the true record of an inferior tribunal, whose proceedings are judicial or quasi judicial in nature, properly extended, so as to show the principles of the decision, before a superior court for examination as to material mistakes of law apparent on such record. Only errors of law can be reviewed. Findings of fact are not commonly open to revision.’ Mayor of Medford v. Judge of First District Court of Eastern Middlesex, 249 Mass. 465, 468, 144 N. E. 397.

Numerous allegations of fact in the petition, not supported by the facts set forth in the return of the respondent board, and not passed upon by the single justice, must be disregarded. Ward v. Board of Aldermen of Newton, 181 Mass. 432, 63 N. E. 1064;Swan v. Justices of the Superior Court, 222 Mass. 542, 546, 111 N. E. 386;Blankenburg v. Commonwealth, 260 Mass. 372, 157 N. E. 693. Moreover, it was not open to the petitioners to show by evidence outside the record, at the hearing before the single justice upon the petition for the writ of certiorari, that conditions warranting the exercise of the power conferred by the statute upon the respondents did not exist unless their jurisdiction thereby would be affected. Bradley v. Board of Zoning Adjustment of City of Boston, 255 Mass. 160, 171, 150 N. E. 892;Marcus v. Board of Street Commissioners of Boston, 252 Mass. 331, 333, 334, 147 N. E. 866. The case at bar must be considered on the return of the respondents.

The return shows that one Sarah Waterman, apparently the owner of land with building thereon in that part of Boston known as ‘Hyde Park,’ made application to the building commissioner of Boston ‘to amend plans for change of occupancy of building No. 44-46 Dana Ave., Hyde Park,’ which was refused because it would be in violation of the zoning law (St. 1924, c. 488). Although it is not stated categorically or with much plainness in the return, it is inferable that this lot was located in a general residence district as established by St. 1924, c. 488, § 2. Therefore, unless some variation of the application of the zoning law was secured, the building on the land in question could not be used for ‘battery service for charging batteries.’ St. 1924, c. 488, § 4. That was the kind of use sought to be authorized as described in refusal made by the building commissioner of her application for change of use. Upon refusal of the application by the building commissioner, appeal from that decision was made to the respondent board setting forth what are termed therein ‘grounds of and reasons for the appeal.’ Upon the filing of that appeal the respondent board ordered that:

‘Notice be given by the petitioner to all abutting owners as they appear in the local tax list, and also be advertised in a newspaper published in the city of Boston, and by mailing by prepaid registered mail a copy to every owner of record of each parcel of land abutting on your parcel of land on which your building stands. Notice must be sent no later than March 31. Date of hearing will be Wednesday, April 6, at 3 p. m. Before that time a copy of the newspaper publication, together with the return receipt cards from the abutting owners, must be sent to the office of the board of appeal.’

The respondent board sent her, also, ‘copy of the advertisement as it must appear in the newspaper.’

It is provided by St. 1924, c. 488, § 19, that the respondent board ‘may vary the application’ of the zoning law in specific cases, but--

‘no such variance shall authorized except by the unanimous decision of the entire membership of the board, rendered upon a written petition addressed to the board and after public hearing thereon, of which notice shall be mailed to the petitioner and to the owners of all property deemed by the board to be affected thereby as they appear in the most recent local tax list and also advertised in a daily newspaper published in the city of Boston.’

The return fails to show any ‘written petition addressed to the board,’ The appeal as therein set forth is addressed ‘To the Building Commissioner of the City of Boston.’ Possibly it was thought that the procedure provided by St. 1907, c. 550, § 7 (being the building law of the city of Boston), was applicable to the present case. However that may be, there does not appear to have been compliance with St. 1924, c. 488, § 19, as to the form of written petition.

The return raised some doubt whether there was compliance with the requirement of said section 19 as to the form of notice. The ‘copy of the advertisement as it must appear in a daily newspaper published in Boston,’ according to the order of the respondent board, describes the substance of the appeal as ‘concerning premises, 44-46 Dana Ave., Wd. 18, asking variance of a provision of the zoning law of Boston, namely, section 4-battery service for charging batteries not allowed in R-40 district.’ The power conferred upon the respondent board was to ‘vary the application’ of the zoning law, and not to ‘vary a provision’ of it. The importance of strict compliance with the terms of the statute in giving the notice arises from the circumstance that by the following section 20, of the same chapter 488, power if conferred upon the board of zoning adjustment to ‘change the boundaries of districts' established by the zoning law. To the ordinary landowner or member of the public to whom such notice is addressed, it well might be a matter of doubt whether the notice here issued related to a petition to ‘vary the application’ of the zoning law, or...