313 Mass. 393 | Mass. | 1943
This is a petition for a writ of certiorari brought by David Sesnovich against the members of the board of appeal of the city of Boston, hereinafter referred to as the respondents, to quash a purported decision of the board upon the application of Nellie A. McDonald to vary the application of the zoning law relating to the city of Boston (St. 1924, c. 488, as amended) at premises 461 Commonwealth Avenue. The respondents filed a return to the peti
The order for judgment made in the Superior Court was, in substance, an order for judgment quashing the decision of the board of appeal. This order was right since on the facts disclosed by the return of the respondents the board was without authority to make the decision.
The zoning law of the city of Boston, St. 1924, c. 488, as amended, in § 19 thereof appearing in its amended form in St. 1926, c. 350, § 1, authorizes the board of appeal provided for in § 6 of the building law of the city of Boston, St. 1907, c. 550, and acts in amendment thereof or in addition thereto — a board consisting of five regular members, provision being made for the designation of substitutes (Real Properties, Inc. v. Board of Appeal of Boston, 311 Mass. 430) — to “vary the application of this act” in certain cases, but provides 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 public hearing thereon, of which notice” shall have been given in a prescribed manner. The section provides also that the “board shall cause to be made a detailed record of all its proceedings, which record shall set forth the reasons for its decisions, the vote of each member participating therein, and the absence of a member or his failure to vote.”
The return of the respondents to the petition sets forth the following record of the meetings of the board: “All members present except F. Warren Clark. Absent because of
The authority conferred upon the board by the governing statute has been described as “quasi judicial in its nature.” Coleman v. Board of Appeal of Boston, 281 Mass. 112, 115. Important features of the statute are the provisions that no variance “shall be authorized except by the unanimous decision of the entire membership of the board” rendered “after public hearing” upon a written petition therefor addressed to the board. The meaning of “entire membership of the board” was considered in Real Properties, Inc. v. Board of Appeal of Boston, 311 Mass. 430, and it was held (page 439) “that the 'board of appeal’ when acting under said § 19 may be a board of appeal constituted for the particular case consisting of appointed members and a substitute, or substitutes duly designated as such in accordance' with the provisions of said § 6” of the building
The matter is within the principle upon which Farrell v. Mayor of Revere, 306 Mass. 221, was decided. That case arose under a provision of the city charter of Revere (St. 1914, c. 687) which provided, in § 31 thereof, for the suspension of an “executive or appointive officer” by the mayor and report by him of “his action and his reasons therefor to the council.” The city council consisted of nine members, the majority of whom constituted a quorum. The officer suspended was given a hearing before the mayor and two members of the council. This court said (page 225) that the suspended officer “did not have the hearing ‘before the mayor and the council’ to which she was entitled. . . . We think that § 31 requires more than a notice and an opportunity, and that actual presence of at least a quorum is necessary to a hearing before .‘the council.’” A quorum for a decision upon a petition to vary the application of the zoning law necessarily consists of the “entire membership of the board” that is to make the decision. A “public hearing” at which less than the “entire membership of the board,” a quorum thereof, was in attendance would not be a “public hearing” such as is required by the statute to be held before a variance can be allowed. The board, without a quorum present, would not be legally competent to hold the “public hearing” that
The records of the meetings of the board set out in the return of the respondents make it clear that the “public hearing” therein referred to was not held by the “entire membership of the board,” a quorum thereof for the purpose of a “public hearing” upon an application for a variance. It was held by four members of the board. Neither Mr. Clark nor any duly designated substitute for him was present, and the study and consideration given by him to the matter as described in the return, however thorough, did not meet the technical requirement that he or a substitute for him be present at the “public hearing.” And the fact that the decision of the board was signed by the “entire membership of the board” including Mr. Clark did not validate a decision that was not made after a “public hearing” by the “entire membership of the board.” Since the lack of a quorum at the “public hearing” affected the jurisdiction of the board and could not be waived, it is unnecessary to consider whether the facts set out in the return of the respondents show that the petitioner consented to the procedure that was followed. Even if he consented thereto, he is not precluded from attacking upon this petition for certiorari a decision of the board on the ground of lack of a quorum at the “public hearing.”
It follows that as matter of law the decision of the board of appeal should be quashed. Judgment is to be entered to that effect.
Although doubtless the practice has been common, it is ‘
Judgment is to be entered “quashing the decision of the Board of Appeal granting a permit varying the application of the provisions of Ch. 488, Acts of 1924.”
So ordered.