Publico v. Building Inspector of Quincy

• Decision Date: 03 June 1957
• Citation: 142 N.E.2d 767,336 Mass. 152
• Parties: Angelina PUBLICO v. BUILDING INSPECTOR OF QUINCY and another.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 767

142 N.E.2d 767

336 Mass. 152

Angelina PUBLICO v. BUILDING INSPECTOR OF QUINCY and another.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued May 7, 1957.

Decided June 3, 1957.

Douglas A. Randall, City Sol., Wollaston, for appellants.

Henry H. Chmielinski, Jr., Quincy, Samuel W. Gaffer, Boston, for appellee.

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

WILKINS, Chief Justice.

The owner of a parcel of land in Quincy brings this bill against the city and its building inspector to obtain a decree declaratory of her rights under the city's zoning ordinance. The defendants entered an appearance, but filed no answer, and the bill was taken pro confesso against them. A final decree was entered declaring that the plaintiff's parcel is not affected by the minimum lots requirements of the zoning ordinance, and ordering that a building permit issue. The defendants appealed.

'The interlocutory decree taking the bill for confessed did not ensure a decree for the plaintiff. It only established as true the facts properly pleaded, and required the entry of whatever decree those facts demanded.' Mayor of Cambridge v. Dean, 300 Mass. 174, 175, 14 N.E.2d 163, 165; Matek v. Matek, 318 Mass. 677, 679, 63 N.E.2d 583; Merchants National Bank v. Morrissey, 329 Mass. 601, 603, 109 N.E.2d 821. This rule resembles that in cases where, after hearing on the merits, there is no report of the evidence and no findings of the material facts. In such cases the only question presented is whether as matter of law the decree could have been entered on the pleadings. Levinson v. Connors, 269 Mass. 209, 168 N.E. 736; Novick v. Novick, 299 Mass. 15, 11 N.E.2d 481; Smith v. Wheeler, 326 Mass. 223, 225, 93 N.E.2d 544, 18 A.L.R.2d 516. But there is an important difference which is pertinent here. The defendants have not waived a defence which would be waived by proceeding to hearing without raising it.

The allegations of the bill are that the plaintiff owns the parcel of land, described by metes and bounds, which is 45 feet wide and 115 feet long, and contains 5,175 square feet; that the parcel was conveyed as a building lot by Mary L. Verkampen to Harold Brooks, the 'respondent's' (sic) predecessor in title, by deed dated August 18, 1923, and duly recorded; that the conveyance was made prior to July 1, 1943, the date of enactment of the zoning ordinance; that the plaintiff applied for a permit to build and was informed by the defendant inspector that a variance was necessary under the zoning ordinance, particularly § 17(e); that the plaintiff applied to the zoning board for a variance, which was refused, from which an appeal was taken to the zoning board of appeals, where a variance was again refused; and that a controversy exists as to the interpretation of § 17(e). The bill does not set forth the wording of § 17(e) or specify what is in controversy.

The final decree, after reciting that the case was 'heard on a final decree and was argued by counsel,' and that the plaintiff is the owner of the land, which is 45 feet wide and contains 5,175 square feet, went on to say: 'Section 17 subsection (e) of the zoning ordinances of the city of Quincy, effective July 1, 1943, provides as follows: 'Minimum lot requirements. For single dwellings hereafter erected the minimum lot area shall be 4500 square feet and the minimum lot width shall be 50 feet * * *. These minimum lot requirements for buildings shall not apply to lots of smaller area which, prior to the effective date of this chapter are shown as such by plan, deed or other instrument duly recorded in the registry of deeds for the county of Norfolk or the Norfolk registry district of the Land Court; provided, however, that any buildings to be erected thereon shall conform to all other provisions of this chapter and chapter 4 of this revision relative to buildings.'' The decree declared that the deed from Verkampen to Brooks being duly recorded prior to the effective date of the zoning ordinance, 'the minimum lot requirements thereof are not applicable'; and ordered that a permit to build be issued without...