273 Mass. 97 | Mass. | 1930
This is a petition for a writ of certiorari brought under § 27A inserted in G. L. c. 40 by St. 1924, c. 133. Its object is to examine for alleged errors of law the proceedings of the board of appeals of Medford relative to variance in the application of the zoning ordinance of that city. The case was heard on the petition and return. The petitioners requested rulings to the effect that “on the record and evidence in the case” the records in question should be quashed. Reference to the evidence in these requests was impertinent. This is not one of the rare cases where evidence rightly could be received on a petition for a writ of certiorari. Selectmen of Wakefield v. Judge of the District Court, 262 Mass. 477, 481. No evidence appears to have been offered or received. Reference to the evidence in the requests does not affect their substance. The single justice denied the petitioners’ requests for rulings and ordered the petition dismissed, but not “as a matter of discretion.” The petitioners excepted to the denials of the requests for rulings and to the dismissal of the petition.
The bill of exceptions raises only questions of law. The bill of exceptions is interpreted to mean that the single justice ruled as matter of law that the petitioners were not entitled to the relief sought.
By the zoning ordinance of Medford, effective in October, 1925, the land of one Cálese was included in a single residence district wherein was prohibited business of all kinds. On June 10, 1929, Cálese applied to the building commissioner of Medford for a permit to erect a gasoline filling station on his land. Permit was refused because forbidden by the ordinance. Thereafter Cálese appealed and petitioned the respondents, the board of appeals, to vary the application of the ordinance so as to permit the erection on his land of a gasoline filling station building. The respondents, the board of appeals, according to schedule “B,”
The return of the respondents, the board of appeals, sets out that pursuant to a standing rule they indicated to Cálese that the estates affected by his petition were those, within a radius of two hundred feet of his land in question and that he then ascertained from the most recent tax list the names and addresses of the owners so affected. At the time and place fixed in the notice for hearing, but before taking testimony, the respondents, the board of appeals, “examined the list of addresses of owners and inspected the return postal receipts and duly determined that the petitioner [Cálese] had duly and fully complied with the provisions of law relative to notice to interested parties as more fully set forth” in a schedule “B” annexed to the return. The petitioners were owners respectively of land in the area described as within two hundred feet of the premises of Cálese, and with a single exception were occupants of houses situated on their respective lots. It is alleged in their petition that their several lots were subject "under the zoning ordinance to similar restrictions as was the land of Cálese, and it appears from the record that the petitioner Hammond was not named in the schedule “B” and there is nothing to indicate that any notice was given him. This point has not been taken in argument,
The petitioners challenge the legality of the record shown by the return in respect to the order of notice. It is required by said § 27A, as a condition precedent to the exercise of the power by a board of appeal to vary the application of a zoning ordinance or by-law, that “No such variance shall be authorized except by the unanimous decision of the entire membership of the board, rendered upon a written petition addressed to the board and after a 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 on the most recent local tax list and also advertised in a newspaper published in the city or town.” As matter of construction this statute is a mandate to the board of appeals with respect to the duties there prescribed. The petition is to be addressed to the board. Plainly the hearing must be held and the decision be rendered by the board. It is equally plain that the notice of the hearing which “shall be mailed to the petitioner” must be mailed to the petitioner by the board of appeals. That is the only notice to the petitioner for which the statute makes provision. It would be vain to require that the petitioner mail notice to himself. Construing the words of the statute according to their only permissible meaning, the notice to the “owners of all property” deemed to be affected must be mailed by the same persons by whom the “notice shall be mailed to the petitioner,” that is, by the board. The “owners of all property . . . as they appear on the most recent local tax list ” must be determined by the board. The standard established by the statute is that such owners must be ascertained from the most recent tax list. The list of
The notice was defective. It contained no adequate intimation of the subject matter of the petition. The petition was that the board vary the application of the ordinance in order that the landowner might erect a gasoline filling station building on his described lot. The notice declared that the petitioner was “asking for a variance” of the ordinance, not to vary its application, and that the request of the petition was for such “variance ... as applied to the erection of alterations in a proposed building.” From this notice alone it could not be determined with reasonable certainty whether the petition was to the end that a new building could be erected, or that a building could be altered. Further, the notice contains no intimation of the use to which the proposed building was to be put. The location was in an area zoned as a “single residence district.” The notice ought to have contained some reference to this subject so as to indicate in a general way whether the proposed building or alteration was for a residence other than a single residence or whether it was for business, or if for business, what was its nature. The notice was not in strict conformity to the requirement of the statute. Prusik v. Board of Appeal of Boston, 262 Mass. 451.
The return of the respondents, the board of appeals, as printed in the record, shows that the notice, issued in the form above stated, with the exception of the order of service, was mailed to the interested landowners. It was suggested
This conclusion results necessarily from the words used in the statute. It is in harmony with the essential and dominating design of any zoning law. That design is to stabilize property uses in the specified districts in the interests of the public health and safety and the general welfare, and not to permit changes, exceptions or relaxations except after such full notice as shall enable all those interested to know what is projected and to have opportunity to protest, and as shall insure fair presentation and consideration of all aspects of the proposed modification. This is not a technical requirement difficult of performance by the unwary. It is dictated by common sense for protection of an established neighborhood to be subject to change only after fair notice. The notice issued by the respondents, the board of appeals, did not conform to these essential requisites.
It follows that there are errors of substance disclosed on the return of the board of appeals. Zoning laws are enacted under the police power and relate to public health, public safety and the general welfare. Opinion of the Justices, 234 Mass. 597, 611. It is only indirectly that they conserve private interests. In these circumstances certiorari rightly may issue even though the errors disclosed on the record may not be of high magnitude. Public justice requires conformity to substantial requirements of the zoning law before its provisions are varied. Farmington River Water Power Co. v. County Commissioners, 112 Mass. 206, 212. Westport v. County Commissioners, 246 Mass. 556, 562. There is nothing inconsistent with this result in cases like Gleason v. Sloper, 24 Pick. 181, 184, Thorpe v. County Commissioners, 9 Gray,
The ruling that as matter of law the petitioners were not entitled to relief manifested by the denial of requests two and three and the dismissal of the petition were error.
Exceptions sustained.
