Reynolds v. Board of Appeal of Springfield
| Decision Date | 14 February 1957 |
| Citation | 140 N.E.2d 491,335 Mass. 464 |
| Parties | Edna REYNOLDS et al. v. BOARD OF APPEAL OF SPRINGFIELD et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Henry E. Patnaude, Springfield, for the defendants Dufficy.
Charles D. Sloan, City Sol., and Donald A. Clancy, Associate City Sol., Springfield, for the defendant Board of Appeals, submitted a brief.
Raymond T. King, Springfield (Richard S. Milstein, Westfield, with him) for plaintiff.
Before WILKINS, C. J., and SPALDING, WILLIAMS, WHITTEMORE and CUTTER, JJ.
These are appeals by the board of appeal of the city of Springfield, and by the two other defendants, the owners of a parcel of residential property in that city, from a final decree of the Superior Court which annulled a decision of the board of appeal authorizing variances of both the building code and the zoning ordinance. The variances would operate to permit the owners to convert the frame dwelling house on their property into a nursing home and to use the building for that purpose.
There is no statutory provision for this appeal in equity. St.1910, c. 349, St.1945, c. 243 (). G.L.(Ter.Ed.) c. 143. The special statute, St.1945, c. 243, § 2(g), authorizes only a petition for a writ of certiorari by 'A person aggrieved' by a decision of the board of appeal. This remedy, at law, has been provided by statute in other instances (see G.L. [Ter.Ed.] c. 40, § 27A, prior to enactment of St.1933, c. 269, § 1; Lambert v. Board of Appeals of Lowell, 295 Mass. 224, 227, 3 N.E.2d 784; Hull v. Town of Belmont, 309 Mass. 274, 279, 34 N.E.2d 692. It is available under the principles of common law. Swan v. Justices of Superior Court, 22 Mass. 542, 544, 111 N.E. 386; Morrissey v. State Ballot Law Commission, 312 Mass. 121, 43 N.E.2d 385; Jordan Marsh Co. v. Labor Relations Commission, 312 Mass. 597, 599, 45 N.E.2d 925; Gifford v. Commissioner of Public Health, 328 Mass. 608, 619, 105 N.E.2d 476. In the absence of an express statutory provision therefor (compare G.L. [Ter.Ed.] c. 40A, § 21, inserted by St.1954, c. 368, § 2) a bill in equity will not lie as an appeal from such a decision. Fairman v. Board of Appeal of Melrose, 331 Mass. 160, 117 N.E.2d 829.
The defendants appropriately demurred to the bill in this aspect, and the demurrers were brought to the attention of the trial judge when the case came on for hearing. The action of coperation of the attorneys for the defendants in getting the case on the merit list, and not on the motion list in the first instance, in the hope, as one of the attorneys stated to the trial judge, that the judge 'might like to hear all facts of the case at the same time,' was not a waiver of the demurrers by proceeding to hearing under the familiar rule. See Saltzberg v. Lumbermens Mutual Casualty Co., 326 Mass. 351, 353, 94 N.E.2d 269. The trial judge in saying 'I am not going to rule on your demurrer until all of the evidence has been presented' indicated his reservation of the point. The effect of this was to permit a decision to be based 'on facts rather than words' and, if the facts proved should call for relief, to permit an appropriate decree subject to any needed amendment of the bill, although a dismissal of the bill on the demurrers without deciding on the evidence remained within the judge's power. Olszewski v. Sardynski, 316 Mass. 715, 717, 56 N.E.2d 607. Here the judge found on the evidence before him that the variance of the building code derogated from the intent and purpose of the code and entered a decree providing that it 'exceeds the authority of the board of appeals and is annulled.'
Nothing in the evidence showed that notwithstanding the lack of jurisdiction in equity to review the board's action by way of appeal, Fairman v. Board of Appeal of Melrose, 331 Mass. 160, 117 N.E.2d 829, there was some other general or special basis for sustaining equitable relief. The principle that equity may retain a bill brought in good faith to do complete justice with reference to the subject matter even though the relief prayed for cannot be given and a bill would not lie solely for the specific relief awarded, Fields v. Othon, 313 Mass. 115, 118, 46 N.E.2d 546, is without application; the bill here did not state a case in equity for relief on any ground from the action of the board of appeal in respect of the building code. The appeal from the action of the board as to the zoning law was a separate issue, and relief in respect of the building code variance was in no sense incidental to giving complete relief in the cause over which the court did have jurisdiction.
The bill cannot be maintained, on the evidence any more than on the allegations, as a bill to enjoin board action which was illegal because of the composition of the board of appeal. 1 If the composition of the board was subject to attack other than directly by quo warranto and we intend no intimation, compare Attorney General v. Simonds, 111 Mass. 256; Prince v. City of Boston, 148 Mass. 285, 287, 19 N.E. 218; Attorney General v. Loomis, 225 Mass. 372, 114 N.E. 676; Sevigny v. Lizotte, 260 Mass. 296, 157 N.E. 594; Commonwealth v. DiStasio, 297 Mass. 347, 349-352, 8 N.E.2d 923, 113 A.L.R. 1133; Lawrence v. Selectmen of Saugus, 335 Mass. ----, 140 N.E.2d 304, the point would be available on certiorari. Sesnovich v. Board of Appeal of Boston, 313 Mass. 393, 47 N.E.2d 943. See Attorney General v. Board of Public Welare of Wilmington, 328 Mass. 468, 471, 104 N.E.2d 496. Hence the absence of a remedy at law cannot be the basis of equity jurisdiction. An improperly constituted board is not, as the plaintiffs appear to contend, in itself a basis for equitable action to annul its proceedings. In Fisk v. City of Springfield, 116 Mass. 88, in sustaining a demurrer we said at page 89: 'The city council * * * being a tribunal having general jurisdiction of the subject of altering the grade of highways in the city * * * the validity of its orders as to such alterations * * * can only be impeached directly by a petition for a writ of certiorari to quash them, and not collaterally by a petition in equity * * *.' The case is unlike Nectow v. City of Cambridge, 260 Mass. 441, 157 N.E. 618, and Nelson v. Town of Belmont, 274 Mass. 35, 174 N.E. 320, where the attack in equity was on the validity of a zoning ordinance or by-law and the point of other available remedy was waived. See Knowlton v. Town of Swampscott, 280 Mass. 69, 72, 181 N.E. 849; Hull v. Town of Belmont, 309 Mass. 274, 279, 34 N.E.2d 692.
We do not reach the point whether owners of neighboring property whose interest was to maintain zoning restrictions could be persons 'aggrieved' by a decision on a matter affecting structural safety of the subject building without a showing of possibility of increased risk to their property as through fire hazard. Nor do we come to the plaintiffs' point that the board granted the variance of the building code upon allowance of an amendment to the petition for a zoning variance, without publishing or serving notice of the amendment notwithstanding the express requirement of St.1945, c. 243, § 2(b), of 'due notice and a hearing.' See Roman Catholic Archbishop of Boston v. Board of Appeal of etc., of City of Boston, 268 Mass. 416, 418-419, 167 N.E. 672; Kane v. Board of Appeals of City of Medford, 273 Mass. 97, 103-104, 173 N.E. 1; Morrison v. Selectmen of Weymouth, 279 Mass. 486, 490-491, 181 N.E. 786; Co-Ray Realty Co., Inc., v. Board of Zoning Adjustment of Boston, 328 Mass. 103, 107-108, 101 N.E.2d 888.
The bill should have been dismissed on its allegations and on the evidence so far as it attacked the action of the board of appeal in respect of the building ordinance.
The appeal lay under G.L. (Ter.Ed.) c. 40A, § 21. On such...
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