280 Mass. 69 | Mass. | 1932
This case comes before us on a report after appeal from an interlocutory decree sustaining grounds 3 and 5 and overruling other grounds set forth in the demurrer to the bill. The allegations of the bill in substance are these: The plaintiffs are the owners of a tract of land in the defendant town bounded on the south and west by the Atlantic Ocean, of great value for business uses. It has a special value for hotel purposes, to which it has been devoted for many years. It is of greatly diminished value for residential purposes and there is little or no demand for dwelling houses in the location and the land is unsalable for that use. In 1924, the defendant adopted a zoning by-law whereby the land of the plaintiffs was placed in a general residence district. The land is unsalable and has no valuable use as zoned, but is salable at a large price if available for new structures to be devoted to hotel purposes. Land across the street from the land of the plaintiffs is zoned and occupied for business. Inclusion of the plaintiffs’ land in the. general residence district does not promote the health, safety, convenience and general welfare of the inhabitants in the vicinity, or of the town as a whole, and is not indispensable to the general plan of zoning. The result of the zoning, if allowed to stand, is that the plaintiffs will be deprived of their property in violation of their constitutional rights.
I. The demurrer to this part of the bill is that the plaintiffs have a plain, adequate, and complete remedy at law.
It is manifest that there have been no interferences with the uses of the land and the several buildings thereon for the purposes to which they were devoted when the zoning ordinance was adopted. There are no allegations of that nature. Such interference is not permissible under the statute enabling municipalities to adopt zoning by-laws.
The General Court has covered the field of zoning by towns by a comprehensive scheme of legislation. G. L. c. 40, §§ 25-32, both inclusive, as amended. It is provided by § 27A, added by St. 1924, c. 133, that a board of appeals created by the statute may vary the application of a zoning by-law “in specific cases wherein its enforcement would involve practical difficulty or unnecessary hardship and wherein desirable relief may be granted without substantially derogating from the intent and purpose of such by-law .... Any person aggrieved by a decision of the board of appeals . . . may . . . bring a petition in the supreme judicial court for a writ of certiorari to correct errors of law therein.” Any party suffering injury to his property through the operation of a zoning by-law is thus given opportunity to present his complaint to a tribunal provided by law, familiar with the local conditions, and to secure the ielief to which he is entitled if any. This statutory remedy is not illusory or inadequate as matter of law. Experience has demonstrated its practical utility. Relief has not infrequently been afforded by boards of appeal; and their errors of law have been corrected by certiorari. Bradley v. Zoning Adjustment Board of Boston, 255 Mass. 160. Norcross v. Board of Appeal of Boston, 255 Mass. 177. Hammond v. Board of Appeal of Springfield, 257 Mass. 446. Kane v. Board of Appeals of Medford, 273 Mass. 97. Roman Catholic Archbishop of Boston v. Board of Appeal of Boston, 268 Mass. 416. Prusik v. Board of Appeal of Boston, 262 Mass. 451.
It is a general principle that, where a statute covers the whole subject to which it relates, including means for redress for wrongs arising in connection with it, other provisions of law are superseded. School Committee of Lowell v. Mayor of Lowell, 265 Mass. 353, 356-357, and cases collected. A. L. Smith Iron Works v. Maryland Casualty
A party cannot come into equity to secure relief open to him at law. Where preliminary proceedings are specially provided for him, there must be resort to them. Waters v. Boyden, 275 Mass. 564, and cases cited. In Nectow v. Cambridge, 260 Mass. 441, and in Nelson v. Belmont, 274 Mass. 35, no question was raised as to relief m equity and that defence must be taken to have been waived so far as available. In the Nectow case the plaintiff first sought relief from the city government, from the superintendent of buildings, and from the board of appeal, and was unsuccessful in all respects.
We think that the demurrer was sustained rightly on ground 3.
2. Ground 5 of the demurrer relates to paragraph 10 of the bill. That paragraph is designed to allege facts constituting res judicata of the matters in issue against all contentions of the defendant. The basis of the allegations is in substance that the controversy was settled by the facts set forth, the conclusions and the findings in the master’s report in Swampscott v. Knowlton Arms, Inc. 272 Mass. 475, to which the plaintiffs were parties, and that the master’s report was confirmed by an interlocutory decree, and that thus all such facts, conclusions and findings were finally approved by a judicial proceeding. Allegations of that nature afford the plaintiffs no relief for the reason that that case was disposed of by the entry of a final decree dismissing the bill because the questions raised
Interlocutory decree affirmed.
