Fairman v. Board of Appeal of Melrose

331 Mass. 160 (1954) 117 N.E.2d 829

GEORGE W. FAIRMAN & others
vs.
BOARD OF APPEAL OF MELROSE & another.

Supreme Judicial Court of Massachusetts, Middlesex.

February 1, 1954. March 1, 1954.

Present: QUA, C.J., LUMMUS, RONAN, WILKINS, & WILLIAMS, JJ.

A. Van Allen Thomason, for the defendants.

James P. McNamara, for the plaintiffs.

WILKINS, J.

This is an appeal to the Superior Court in the form of a suit in equity under G.L. (Ter. Ed.) c. 40, § 30, as appearing in St. 1933, c. 269, § 1, and subsequently amended, brought by persons who allege that they are residents of Melrose and property owners within the neighborhood of property of one Lieberman, to whom the defendant board granted a variance to convert a single dwelling and a carriage house in a single residence district into buildings of four apartments. The plaintiffs seek an annulment of the decision granting the variance and an injunction against the granting of a building permit by the defendant building commissioner of Melrose.

The case was heard by a judge of the Superior Court, whose findings and rulings are as follows: "This is an appeal under G.L.c. 40, § 30. I find that the decision of the appeal board was not based on any finding of hardship; that the reasons given by the board are not sufficient to warrant a variance either in law or fact. The decision of the appeal board is hereby declared null and void." The defendants appealed to this court from a final decree annulling the decision of the board.

The board seems not to have been established under § 30, but to have been established under St. 1924, c. 22, which contains no provision for an appeal from a decision of the board to the Superior Court. Hence the present proceedings cannot lie. The appropriate remedy for the plaintiffs should have been a petition for a writ of certiorari. Lambert v. Board of Appeals of Lowell, 295 Mass. 224, 227. Turner v. Board of Appeals of Milton, 305 Mass. 189, 192. Petros v. Superintendent of Buildings of Lynn, 306 Mass. 368, 369. Tranfaglia v. Building Commissioner of Winchester, 306 Mass. 495, 497. Boyle v. Building Inspector of Malden, 327 Mass. 564, 566-567. Sunderland v. Building Inspector of North Andover, 328 Mass. 638, 641. See Bicknell Realty Co. v. Board of Appeal of Boston, 330 Mass. 676, 678-679.

Decree reversed.

Bill dismissed.