Smith v. Board of Appeals of Plymouth

Citation340 Mass. 230,163 N.E.2d 654
PartiesAlexander SMITH et al. v. BOARD OF APPEALS OF PLYMOUTH et al.
Decision Date06 January 1960
CourtUnited States State Supreme Judicial Court of Massachusetts

Douglas A. Randall, Wollston, for plaintiffs.

Allan M. Hale, Middleboro, and Hugh R. Maraghy, Plymouth, for defendants.

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

WHITTEMORE, Justice.

The plaintiffs, as owners of land on Saby's Pond in Plymouth, alleging harassment by acts of the defendants Euclid and Adrienne Carreau in repeatedly applying to the board of appeals for permits to use their land on the pond as sites for picnicking, tenting and a trailer camp, seek, by a bill of complaint filed April 17, 1959, to enjoin the board of appeals and its clerk from issuing notices and holding hearings on any such applications, and to enjoin the Carreaus from acting in violation of an order of the board of selectmen, served in compliance with a writ of mandamus in proceedings in which the Carreaus were intervening parties.

These are the plaintiffs' appeals from the interlocutory decree sustaining the demurrers of the board of appeals and the Carreaus, and from the final decree dismissing the bill.

1. The demurrer of the board of appeals was rightly sustained. As the demurrer asserts, the bill does not state a cause for equitable relief against the board.

The exclusive remedy of a person aggrieved by a decision of the board is the statutory appeal to the Superior Court. G.L. c. 40A, § 21. Boyle v. Building Inspector of Malden, 327 Mass. 564, 566, 99 N.E.2d 925, and cases cited. See Howe v. Town of Ware, 330 Mass. 487, 488, 115 N.E.2d 455. Contrast Atherton v. Selectmen of Bourne, 337 Mass. 250, 257-259, 149 N.E.2d 232; Publico v. Building Inspector of Quincy, 336 Mass. 152, 155, 142 N.E.2d 767. The plaintiffs, as owners of nearby land, are persons aggrieved, Vainas v. Board of Appeals of Lynn, 337 Mass. 591, 594, 150 N.E.2d 721, and the bill asserts that they have appealed from the board's decision of February 18, 1959.

The bill does not show any basis for granting extraordinary relief against the board and we need not consider what remedies might be available in the appropriate case. See Jaffarian v. Mayor of Somerville, 275 Mass. 264, 266, 175 N.E. 639, and cases cited (mandamus); Stiles v. Municipal Council of City of Lowell, 233 Mass. 174, 181-183, 123 N.E. 615, 4 A.L.R. 1365 (tort); Kenyon v. City of Chicopee, 320 Mass. 528, 534-536, 70 N.E.2d 241, 175 A.L.R. 430 (injunction, repeated criminal complaints which invaded constitutional rights). On this bill we must take it that the board is complying with its statutory obligation as to applications which it must receive and act on. G.L. c. 40A, §§ 4, 15, 17. There is no allegation or implication that the board is abusing its powers. The averment that 'without notice to the plaintiffs' (by April 17, when the bill was filed) a notice of a hearing to be held April 21, 1959, on the last of the three or four petitions referred to, had been published in the Brockton Enterprise, states a fact consistent with an intent to comply with the statute. On demurrer there is no intendment in favor of the challenged pleading. Gabriel v. Borowy, 324 Mass. 231, 235, 85 N.E.2d 435. The plaintiffs' brief specifies as impropriety in the notice only that there was failure 'to advertise in a Plymouth paper of general circulation.' But there is no allegation that the Brockton Enterprise is not 'a newspaper of general circulation, in the city or town.' G.L. c. 40A, § 17. The statute does not require publication in a newspaper published in the town. Compare G.L. c. 244, § 14. See Gladstone v. Treasurer & Receiver Gen., 337 Mass. 48, 147 N.E.2d 786. We do not intimate that patent error in giving notice would support the prayers against the board of appeals.

'Vexatious litigation may in itself become a ground for equitable relief', Boyajian v. Hart, 312 Mass. 264, 266, 44 N.E.2d 964, 965, and we assume that in the appropriate case the court could enjoin the Carreaus from abuse of their right to apply for exceptions or variances. This bill, however, does not seek such relief and the question is not presented of the propriety of an order ancillary thereto, which would bar acceptance by the board of the Carreaus' petitions.

Furthermore, although the bill states facts which suggest the possibility of abuse of the right to file applications, it does not clearly set out a basis for enjoining the Carreaus on this ground. It does not show that the Carreaus are attempting to relitigate settled questions or that, in applying, as the bill avers they did, in 1956 for a permit for 120 acres which the board refused, and successively in 1959, after the mandamus order, in respect of 15 acres, 32 acres and 36 acres, the Carreaus were abusing their statutory rights, the allegation is that in the mandamus proceedings it had been found that the Carreaus' existing use violated the by-law. This did not in terms bar applications by the Carreaus for exceptions or variances in an attempt to change the by-law as applied to their land. We need not now determine the effect, if any, of the mandamus order on a subsequent exception or variance. See Colabufalo v. Public Bldgs. Com'r of Newton, 336 Mass. 205, 211-212, 143 N.E.2d 477.

2. The demurrers of the Carreaus were also...

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