Walker v. Board of Appeals of Harwich

• Decision Date: 25 January 1983
• Citation: 445 N.E.2d 141,388 Mass. 42
• Parties: Rufus F. WALKER, trustee, 1 v. BOARD OF APPEALS OF HARWICH et al. 2
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 141

445 N.E.2d 141

388 Mass. 42

Rufus F. WALKER, trustee, ¹ v. BOARD OF APPEALS OF HARWICH et al. ²

Supreme Judicial Court of Massachusetts Barnstable.

Argued Nov. 4, 1982.

Decided Jan. 25, 1983.

Paul V. Benatti, South Dennis, for plaintiff.

James M. Falla, West Harwich, for Bd. of Appeals of Harwich.

Before HENNESSEY, C.J., and LIACOS, ABRAMS, LYNCH and O'CONNOR, JJ.

HENNESSEY, Chief Justice.

The plaintiff, Rufus F. Walker, brought this action in a District Court seeking judicial review of a decision by the defendant board of appeals of Harwich to grant a special permit to the defendants George B. Nelson and Ruth C. Nelson for a change of a nonconforming use of a motel to residential time sharing condominiums and for certain structural alterations to accommodate the proposed use. After holding a hearing and conducting a view, a District Court judge entered a judgment affirming the decision of the board of appeals.

Thereafter, the plaintiff filed a draft report and the Nelsons responded with a draft report of their own. Both parties sought review of the case by the Appellate Division of the District Courts. The District Court judge, in addition to reporting the matters raised by the parties, voluntarily reported the question whether the Appellate Division has jurisdiction to hear appeals from actions tried in the District Court under G.L. c. 40A, § 17. The Appellate Division, after determining that it does possess jurisdiction to hear these appeals, affirmed the District Court's decision and dismissed the plaintiff's report. Walker then brought this appeal arguing that the board of appeals' decision should be annulled (1) because the board of appeals did not have the authority to grant the Nelsons' special permit, (2) because the Nelsons have not demonstrated compliance with all applicable provisions of the Harwich zoning by-law, and (3) because the Harwich zoning by-law precludes condominium conversion. ³

We determine today that the Appellate Division does not have jurisdiction to hear appeals from actions tried in the District Court under G.L. c. 40A, § 17. We do not dispose of this case on that ground, however. Rather, we apply our determination on the jurisdictional issue prospectively only and resolve this case on the merits of the appeal. We further determine that none of Walker's arguments are meritorious and the dismissal of his report, therefore, is affirmed.

The Nelsons own and operate a motel in Harwich. Although the zoning by-law of Harwich prohibits motels in the area where the Nelsons' motel is located, the Nelsons were operating their motel prior to the adoption of this prohibition. Both parties agree, therefore, that the Nelsons' use of their premises as a motel is a valid preexisting nonconforming use. Across the street from the Nelsons' property is certain real estate owned by Rufus F. Walker as the trustee of the Walker trust. The Nelsons petitioned the board of appeals for a special permit to change the valid nonconforming use of their property as a motel to time sharing condominiums. In the application the Nelsons requested permission to convert the motel units to efficiency units, which would require construction of kitchen facilities, ⁴ to construct a putting green, and to enclose an existing outdoor swimming pool. Conversion of the motel units to condominium units would also result in nearly year-round occupancy in contrast to the present seasonal operation.

The board of appeals held a public hearing and reviewed the Nelsons' petition. After the board of appeals voted unanimously to grant the requested permit, stating that the proposed use would not be substantially more detrimental to the neighborhood than the existing nonconforming use, Walker sought judicial review. The District Court judge, and later the Appellate Division, affirmed the decision of the board of appeals. Since appellate review of the Appellate Division's determinations is to this court, rather than to the Appeals Court, the case is here on appeal. G.L. c. 211A, § 10.

1. The first issue that we address is whether the Appellate Division has jurisdiction to hear appeals from cases tried pursuant to G.L. c. 40A, § 17. The issue is not briefed or argued by any party. The District Court judge and the Appellate Division, however, offered extensive analysis on this difficult matter, which is apparently a question of first impression. Under G.L. c. 40A, § 17, as amended by St.1978, c. 478, § 32, there is concurrent jurisdiction in the District and Superior Court Departments to hear zoning cases. The statute also provides that "the parties shall have all rights of appeal and exception as in other equity cases." The normal method of review of a case tried without a jury in a District Court is by a report to the Appellate Division.

The jurisdictional problem in cases tried under G.L. c. 40A, § 17, arises, however, because the method of review contemplated by G.L. c. 40A, § 17 ("appeal and exception as in other equity cases") is not traditionally performed by the Appellate Division. Rather, appeals to the Appellate Division closely approximate the method of review that was available by bills of exception in actions at law. See J.R. Nolan, Civil Practice § 966, at 259 (1975). This method of review allows the Appellate Division to examine only rulings of law, not questions involving findings of fact, unless such findings involve errors of law or are plainly wrong. Zaleski v. Zaleski, 330 Mass. 132, 134, 111 N.E.2d 451 (1955). T.L. Edwards, Inc. v. Fields, 371 Mass. 895, 358 N.E.2d 768 (1976). In contrast, the scope of review of appeals in equity cases was much broader, allowing the appellate court to review all questions of law, fact or discretion and, in certain circumstances, to find facts and to supply deficient findings of fact. See Simeone Stone Corp. v. Oliva, 350 Mass. 31 213 N.E.2d 230 (1965); Hull v. Belmont, 309 Mass. 274, 34 N.E.2d 692 (1941); Flint v. Codman, 247 Mass. 463, 468, 142 N.E. 256 (1924). Hence, the statute contemplates that zoning cases will receive a broader review than the Appellate Division is ordinarily empowered to conduct. Thus, it is unclear whether the Legislature intended the Appellate Division or some other judicial body to have jurisdiction of these appeals. ⁵

In examining whether the Appellate Division of the District Courts has jurisdiction to hear appeals from cases tried in the District Courts under G.L. c. 40A, § 17, we note that there are five potential avenues for appellate review of such a decision by a District Court. These possibilities are: (1) trial de novo in the Superior Court; (2) an action in the nature of certiorari under G.L. c. 249, § 4; (3) direct appeal to this court; (4) appeal to the Appeals Court; and (5) appeal to the Appellate Division. The first three of these alternatives are eliminated easily from serious consideration. First, the Legislature restored District Court jurisdiction over zoning cases, St.1978, c. 478, § 32, but did not restore the provision allowing appeals from the District Court to the Superior Court for a trial de novo. See note 5 supra. Hence, it may be inferred that the Legislature did not intend further judicial review of District Court determinations to occur in the Superior Court. Furthermore, G.L. c. 231, § 97, which allows certain District Court cases to be appealed to the Superior Court is inapplicable to cases under G.L. c. 40A, § 17, because zoning actions that are brought in the District Court may be removed to the Superior Court. See Gentile v. Rent Control Bd. of Somerville, 365 Mass. 343, 346 n. 3, 312 N.E.2d 210 (1974). Therefore, de novo review by the Superior Court is not an available option.

Judicial review through an action in the nature of certiorari to this court or to the Superior Court under G.L. c. 249, § 4, is also not an available avenue. This remedy may be used only if the proceedings sought to be reviewed are not "otherwise reviewable by motion or appeal." G.L. c. 249, § 4. It seems clear that by retaining the language in G.L. c. 40A, § 17, allowing "rights of appeal and exception," the Legislature intended that there be some form of appeal from District Court determinations.

Judicial review of zoning cases through direct appellate review by this court under G.L. c. 211A, § 10, is also inapplicable. Allowing the extraordinary remedy of direct appellate review by this court would frustrate the Legislature's clear intention to treat appeals in zoning cases in the same manner as appeals in other equity cases. Therefore, we determine that the Legislature must have intended that zoning cases be appealed to either the Appellate Division or to the Appeals Court.

The jurisdictional provision for the Appeals Court, G.L. c. 211A, § 10, as appearing in St.1979, c. 344, § 2, grants the Appeals Court jurisdiction over, in relevant part, "a determination made in the superior court, the land court, the probate courts, and the district courts in jury session (a ) in all civil proceedings at law or in equity." Hence, this statute provides for Appeals Court jurisdiction over only those District Court cases that are tried before a jury. The statute, however, does provide the Appeals Court with jurisdiction over appeals in all civil proceedings at law or in equity that arise in the Superior Court, the District Court in jury session, the Land Court, and the Probate Court. Thus, although G.L. c. 211A, § 10, appears to preclude review by the Appeals Court of District Court determinations in nonjury cases, it also seems to establish that equity cases, as a general matter, are to be appealed to the Appeals Court.

The fifth avenue of judicial review of zoning cases tried in the District Courts is that of review by the Appellate Division. General Laws c. 231, § 108, however, gives the Appellate Division jurisdiction over only "matters of law arising in civil cases." Although Mass.R.Civ.P. 2, 365 Mass. 733 (1974),...