ANTHONY COLABUFALO vs. BOARD OF APPEAL OF THE CITY OF NEWTON & another.

WHITTEMORE, J. This is a bill in equity under G. L. (Ter. Ed.) c. 40A, Section 21, inserted by St. 1954, c. 368, Section 2, by way of an appeal from a decision of the board of appeal of the city of Newton approving the issuance under the zoning ordinance of a permit by the public buildings commissioner to the intervener DiCarlo Bros., Inc., for the erection of a garage, workshop and office building on land on Hamlet Street. The case is here on appeal from the decree of the Superior Court that the decision of the board requires no modification.

The land in question is in a private residence district and is across the street from the area which is the subject of the decision in Colabufalo v. Public Buildings Commissioner of Newton, 332 Mass. 748. Our opinion on an appeal in ancillary contempt proceedings in that case is at page 205, ante.

A building such as is described in the permit is not permitted in a private residence district under the provisions of the ordinance which state district uses. Prior to the issuance of the building permit the board of aldermen on October 17, 1955, issued an order purporting to grant to the intervener defendant a variance for the construction of the building. The board of appeal found that the order of the board of aldermen authorized the building, that it "will involve no substantial detriment to the neighborhood, that denial of the permit will result in substantial hardship to DiCarlo Bros., Inc., and that erection of the proposed building will be without derogation from the purpose and intent of the zoning ordinances."

The controlling issue is the jurisdiction of the board of aldermen to grant the so called variance under the statute and ordinance. No ground is suggested on which the buildings commissioner could deny a permit for construction which had been authorized by the board of aldermen under a valid provision of the ordinance or for a reversal of his action in such case by the board of appeal.

1. The board of aldermen had no power to grant variances.

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The provision of the ordinance [Note p215-1] which purports to give it this power conflicts with the enabling statute. Massachusetts Feather Co. v. Aldermen of Chelsea, 331 Mass. 527, 529-530. Cases cited in Planning Board of Reading v. Board of Appeals of Reading, 333 Mass. 657, 660, to the statement that a "by-law cannot conflict with the statute." Tranfaglia v. Building Commissioner of Winchester, 306 Mass. 495, 497. Leahy v. Inspector of Buildings of New Bedford, 308 Mass. 128, 131. Smith v. Board of Appeals of Fall River, 319 Mass. 341, 343-344. See Commonwealth v. McFarlane, 257 Mass. 530.

The statutory provisions for the granting of variances by boards of appeals are precise and complete (Turner v. Board of Appeals of Milton, 305 Mass. 189, 192); they occupy the field. G. L. (Ter. Ed.) c. 40A, Section 15. [Note p215-2] There were similar provisions in the predecessor statute, G. L. (Ter. Ed.) c. 40, Section 30, as appearing in St. 1933, c. 269, Section 1, as amended. In St. 1954, c. 368, which inserted c. 40A, it is provided in Section 3: "The provisions of chapter forty A of the General Laws, so far as they are the same as those of sections twenty-five

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five to thirty B, inclusive, of chapter forty of the General Laws, shall be construed as continuations of said provisions, and the enactment of this statute shall not affect the validity of any action lawfully taken under said provisions prior to the effective date of this act." The zoning ordinance in Section 23.25 provides, "The provisions of this chapter are ordained for the purpose of promoting the health, safety, convenience, morals and welfare of the inhabitants of the city in accordance with G. L., c. 40, Par. 25, et seq. . . ."

The statute expressly shows just how far it is intended that any board other than the board of appeals shall have the power to alter the effect of the ordinance or by-law as written. Section 4 provides that exceptions to the regulations and restrictions of the ordinance or by-law may be allowed and that permits therefor may be granted either by the board of appeals "or the city council of such city or the selectmen of such town." Prior to the enactment of c. 40A the power to grant exceptions, like the power to grant variances, so far as express, was exclusively in the board of appeals. [Note p216-1]

1 The limited extension of jurisdiction when c. 40A was adopted is significant to exclude a power in municipalities to go beyond the expression of the statute.

The ordinance contains a provision restating the statutory power of the board of appeal to grant variances (Section 23.21 [b] 2).

2. The invalidity of the action of the board of aldermen may be determined on this appeal.

The plaintiff by virtue of G. L. (Ter. Ed.) c. 40A, Section 13, as appearing in St. 1955, c. 325, Section 1, [Note p216-2] had a right of appeal, and

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did appeal, to the board of appeal from the decision of the buildings commissioner, and under Section 21 he had an appeal to the Superior Court from the decision of the board. The findings show that his residence is in the same zoning district and about three hundred feet away from the locus. It is not contended that he is not a "person aggrieved" within the meaning of Sections 13 and 21.

The decision of the board of aldermen was a nullity. Massachusetts Feather Co. v. Aldermen of Chelsea, 331 Mass. 527. See Sterling's Case, 233 Mass. 485, 489-490. This was a case of "an assumption by the board [under the terms of the ordinance] of a jurisdiction it did not have, rather than an erroneous exercise of the jurisdiction conferred upon it . . .." Clap v. Municipal Council of Attleboro, 310 Mass. 605, 608. In the Massachusetts Feather Co. case, where certiorari was sought to determine that an appeal to the board of aldermen was invalid, we said at page 530, "The action of the board of aldermen was without jurisdiction and was a nullity, but in itself it did the petitioner no harm, and it is difficult to see how quashing it would do the petitioner any good."

Failure to take an appeal from the decision of the board of aldermen to the board of appeal under Section 13, if such course was open, [Note p217-1] and we intend no suggestion, does not foreclose the issue. We do not pause to determine what limitations, if any, apply to collateral attack by formal parties to administrative proceedings upon decisions therein which are void for want of jurisdiction. See Davis, Administrative Law, Sections 176, 179, 190; Saint Luke's Hospital v. Labor Relations Commission, 320 Mass. 467, 469-470. See, as to a decree of court, Crystal, petitioner, 330 Mass. 583, 591. The plaintiff, although he appeared before the board of aldermen, was not a formal party who initiated or responded to process. Furthermore the board of aldermen was in no

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sense a court and there is little basis for implying in its decision an adjudication of its authority to act. Compare Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371. The issue has been raised before there has been an opportunity for the intervener to change its position by action pursuant to an outstanding permit to build. The present appeal brings the issue to the Superior Court under the same section of the statute which would have applied had an earlier appeal been available and had it been taken. The interjection of the issuance of the building permit has had relevant effect only in bringing the proceedings to a stage where a statutory provision for an appeal is surely applicable.

3. The review by the board of appeal of the propriety of the grant of a variance by the board of aldermen is not the equivalent of an initial decision by the board of appeal to grant a variance. All at interest are by the statute entitled to the decision of the board of appeal unaffected by a prior decision by a board which had no jurisdiction to pass on the issue.

4. There are some indications that the board of aldermen was purporting to give a permit for the extension of a non-conforming use under Section 23.9 (b) of the ordinance [Note p218-1] rather than to grant a variance. The board's order reads in part, "Description of variance desired, size of lots: 34,320 square feet, construction of a non-conforming building on presently non-conforming land." The findings of the judge in the Superior Court speak of the "application for a permit" before the board of aldermen. The judge's finding, however,

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ever, is that the board "granted . . . a variance" and the order of the board, after reciting, as having been found by the board, the requirements for a variance contained in the statute and the ordinance, G. L. (Ter. Ed.) c. 40A, Section 15, states, "variance is hereby granted as follows: . . ." Also, in addition to the "Description of variance" as hereinabove set out, the order contains the following further reference: "Description of use to be made of land if variance is granted . . .." The only brief [Note p219-1] for the defendants, that of the intervener, argues that there was a properly granted variance and does not contend that the board of aldermen purported to grant a permit under the nonconforming use section of the ordinance.

We do not reach the question of the validity of the board's order construed as a permit. Whether or not the extension of a nonconforming use is to be classified as the granting of an exception under G. L. (Ter. Ed.) c. 40A, Section 4, it is the exercise of a different power than the variance power. Donovan Drug Corp. v. Board of Appeals of Hingham, ante, 1, 4. Burnham v. Board of Appeals of Gloucester, 333 Mass. 114. Lawrence v. Board of Appeals of Lynn, ante, 87, 89. Not only are the applicable criteria different but also the scope and effect of permissible action may not be the same. See Planning Board of Reading v. Board of Appeals of Reading, 333 Mass. 657; LaMontagne v. Kenney, 288 Mass. 363.

On the same day, in the same form the board purported to grant a variance applicable to the premises across the street. Colabufalo v. Public Buildings Commissioner of Newton, ante, 205, 211. Thus it is confirmed that variance power was one which the board consciously and intentionally purported to exercise. Persons at interest, as the plaintiff, rightly could act or refrain from acting, on the assumption that the board was undertaking to do what it declared it was doing. A case in point is Hickox v. Griffin, 298 N. Y. 365, 371. There is no room for indulging a presumption of the validity of the local action.

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Compare Caires v. Building Commissioner of Hingham, 323 Mass. 589, 595, 596; Co-Ray Realty Co. Inc. v. Board of Zoning Adjustment of Boston, 328 Mass. 103, 108; Concord v. Attorney General, ante, 17, 25.

5. There is shown on this record no basis for the issuance of a permit to the intervener. The final decree is reversed and a decree is to be entered in the Superior Court vacating the decision of the board of appeal and ordering that it deny or direct the denial of the application for a building permit, and ordering also that the clerk within thirty days after the entry of the decree send an attested copy thereof to the board.

So ordered.