255 Mass. 5 | Mass. | 1926
This is a petition for a writ of certiorari. The material facts are that the petitioner is the record owner of an apartment house in the general residence district in Boston, abutting upon land owned by the Queensberry Realty Company. To that company on June 23, 1925, the board of street commissioners of Boston granted a permit to erect a public garage and a license to keep and store gasoline, both to be exercised on its lot. The petitioner appealed from that decision to the State fire marshal, who, on July 18,1925, after due proceedings revoked that permit and license. The Queensberry Realty Company appealed from that revocation to the commissioner of public safety, who, after hearing, disapproved on August 28, 1925, the action of the State fire marshal. The question argued is whether the commissioner of public safety had jurisdiction to entertain the appeal.
The Boston zoning act, St. 1924, c. 488, so far as relevant governs the rights of the parties. By § 3 it is provided that, in single residence districts no building shall be erected except for uses designated, one of which, subsection 9, is: “Garages . . . provided after public hearing the board of . street commissioners grants a license therefor. . . . From any decision of said commissioners granting any such license any person aggrieved may take an appeal, ... to the State fire marshal, who may after public hearing suspend or revoke any such license.” It is provided in § 4 that in “a general residence district no building . . . shall be erected . . . except for one or more of the following uses: (1) Any use permitted in a single residence district.” All provisions of § 3 (9) with respect to garages in single residence districts are thus imported into § 4 and made applicable to garages in general residence districts. The effect of these provisions is that a garage may be erected in a general residence district upon the same conditions and limitations and in accordance with the same procedure as is required for the erection of a garage in a single residence district, and in no other way.
The reasonable construction to give to G. L. c. 147, § 5, is that it applies to action by the State fire marshal with respect both to licenses to keep and store gasoline and to licenses to erect garages. The procedure is thus rendered harmonious and consistent. It seems much more consonant with presumed legislative intention that as to both
The history of earlier statutes on the subject has a slight tendency to confirm this view. But it is not necessary to review them.
The conclusion is that no error of law is disclosed on the return because the commissioner of public safety had jurisdiction under the statute to pass upon the appeal.
A word ought to be said concerning practice. After the petition had been filed, a motion by the petitioner was presented asking that the Queensberry Bealty Company, to which the permit had been granted, be joined as a party in the proceeding and enjoined from continuing the construction of the garage. The motion was allowed and the injunction denied. This was irregular. The only respondent in a petition for a writ of tiertiorari is the tribunal whose action is to be examined. No other party can be joined as a respondent, or file an answer, or demur. It is proper and in accordance with usage to permit counsel for a party, having-a private interest to maintain the proceeding sought to be quashed, to file a brief and to argue in opposition to the petition, usually by permission and in the name of the respondents. Worcester & Nashua Railroad v. Railroad Commissioners, 118 Mass. 561, 564. Byfield v. Newton, 247 Mass. 46, 52. G. L. c. 249, § 4.
The allowance of the motion must be reversed and the motion denied and the petition dismissed.
So ordered.