GEORGE R. KELLOWAY & others vs. BOARD OF APPEAL OF MELROSE & others. (and a companion case).

CUTTER, J. The petitioners seek relief by certiorari and also by a bill in equity under G. L. c. 40A, Section 21, from the granting by the board of appeal to the Melrose Housing Authority (the Authority) of a variance for the construction of an apartment complex (the project) to provide accommodations for the elderly. The Authority (G. L. c. 121, Section 26S, as amended through St. 1964, c. 636, Section 7; and now by St. 1969, c. 751, Section 1, transferred to G. L. c. 121B, Section 28) is subject to local zoning provisions. A variance was necessary to permit the project to be carried out, because there would be violation of the Melrose zoning ordinance with respect to Section 25-20 (height restrictions and number of stories), and Section 25-21 (ratio of aggregate floor area to size of lot; set-back restrictions). There would also be a violation of off-street parking requirements. A Superior Court judge ordered that the petition for a writ of certiorari be dismissed. Another Superior Court judge sustained demurrers to the bill in equity, and, without decision, reported the bill on the pleadings for the determination of this court.

At the arguments on May 7, 1970, it became clear that the situation was seriously confused by the conflict between (a) the provisions of G. L. c. 40A, especially Sections 14, 15, and 21, inserted by St. 1954, c. 368, Section 2, and (b) St. 1924, c. 22. This latter statute created a specially constituted board of appeal for Melrose. By c. 22, Section 2, an appeal under the building or zoning ordinances could be taken to the board of appeal in a prescribed

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manner. By Section 3, set out in the margin, [Note 1] the board of appeal was given a somewhat flexible power to grant variances.

The situation presented further difficulty because of the 1954 decision in Fairman v. Board of Appeal of Melrose, 331 Mass. 160, just prior to the 1954 revision of the zoning enabling act when G. L. c. 40A superseded c. 40 Sections 25-30B (repealed by St. 1954, c. 368, Section 1). Chapter 368, Section 3, stated that the provisions of c. 40A, "so far as they are the same as those of" Sections 25 to 30B, inclusive, of c. 40 "shall be construed as continuations of said provisions." [Note 2] In the Fairman case, this court reversed a Superior Court decree holding invalid a variance granted by the Melrose board of appeal on the ground that the "decision of the . . . board was not based on any finding of hardship." Our decision (p. 161) was that the "board seems not to have been established under [c. 40] Section 30, but to have been established under St. 1924,

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c. 22, which contains no provision for an appeal from a decision of the board to the Superior Court." This court ruled that the appropriate remedy "should have been a petition for a writ of certiorari."

We were in doubt in 1970 concerning the extent to which our decision must be based on St. 1924, c. 22, so far as that statute may be in conflict with generally comparable provisions of G. L. c. 40A (see e.g. Section 15, as amended through St. 1958, c. 381) governing the circumstances in which and the bases upon which variances may be granted. Also, we recognized that substantial public funds had been expended on the project, then (1970) nearly completed. It appeared possible that some clarification of the confused situation might be accomplished by special legislation, revision of the Melrose zoning ordinance, further action before the board, or eminent domain proceedings. Accordingly, on May 14, 1970, we transferred the cases to the county court by an order which suggested various lines of inquiry and clarification. At intervals since that date, there have been hearings before the single justice. Legislation (St. 1971, c. 598 [Note 3]) has been obtained, which may avoid some past and future confusion. The parties by counsel also filed on November 8, 1971, a stipulation concerning facts not fully reflected in the original record. The single justice (without decision) has reserved, reported, and retransferred the cases to the full court for its determination.

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The facts are stated as set out in the return of the board of appeal and the stipulation just mentioned. Some at least of the petitioners own property on Greenwood Street (to the west of the project) or on Ashburton Place (north of the project), either abutting or near the premises (locus) on which the project has been constructed. The Authority applied to the building commissioner on April 1, 1969, for a permit to build an apartment complex for housing the elderly poor. This was denied as a violation of art. IV, Section 25-20 of the zoning ordinance. The Authority appealed to the board of appeal.

Notices of a proposed public hearing were published in a local newspaper on April 3, and 10, 1969, [Note 4] and mailed on April 8, 1969, to each of the petitioners except Russell L. Johnson. He, in any event, was present and spoke at the hearing held on April 16, 1969.

The project, on a lot of about 40,000 square feet in a district zoned for residence and business purposes, did not comply with the zoning ordinance because of the height restriction and floor ratio violations already mentioned. At the hearing, the following evidence was received among other items. The project would provide 155 housing units, which would accommodate only 310 of the 1,500 elderly (over sixty-five) persons whose incomes were less than $3,000. The Authority then had spent more than $90,000 in site surveys, plans, and architects' fees. For the project a grant of $2,635,056 had been made by an agency of the Commonwealth. "[T]he State authorities had indicated that this was the only site in Melrose which would be approved by"

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it. Over seventy sheets of detailed plans and a site plan [Note 5] were submitted, as well as a model of the project.

The board of appeal granted a variance [Note 6] and, in doing so, wrote an opinion which is incorporated by reference in the board's return. The board pointed out that "it would have been more appropriate for the board of aldermen to [have] revise[d] the zoning ordinances to exempt property of this character from . . . the zoning laws" since property of a housing authority is "deemed to be public property used for essential public and governmental purposes." It stated that it believed if the Authority "were a private person he could not satisfy the requirements under which a variance . . . should be granted by this board." The board of appeal, however, granted the variance because the city had already committed $90,000 and because the city was "`under a deadline from the Commonwealth, which if allowed to pass' . . . [might] result in loss of the entire amount to be furnished by the Commonwealth," viz. $2,635,056.

The petition for a writ of certiorari was filed on May 22, 1969. The bill in equity was filed on May 12, 1969.

The stipulation, filed when these cases were retransferred to the full court, sets forth developments (or the absence of them) since the completion of the original records in 1970. It refers to the enactment of c. 598 (see fn. 3, supra). The project (155 units for housing elderly near Greenwood Street, Melrose) has been completed and

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is fully occupied. There have been no new eminent domain takings or changes in the Melrose zoning ordinance or building code. No grade changes or roads adjacent to the project have occurred. The project has had no apparent effect on traffic or traffic patterns. Forty-three project tenants own automobiles and park them on land owned partly by the city and partly by the Authority. The parking area has the appearance of being a part of a municipal parking lot. Photographs (before and after the project's construction) and three maps (two of them showing elevations) of the area were also submitted to show the physical characteristics of the area at the times indicated on these exhibits.

The photographs and plans reveal that the project was placed on a lightly wooded vacant lot, not well maintained, in an area predominantly of small or medium-size residences but containing on Greenwood Street (within 300 feet to the south and southwest of the locus) a fourteen unit apartment building and a twenty-six unit apartment house. The project varies in height as already noted (fn. 5, supra). A substantial portion of the project is nine stories high. Relatively small superstructures rise even higher. The project complex has a simple, neat, brick exterior and a generally pleasing appearance. Unquestionably it somewhat overpowers in size some single family houses on the east side of Greenwood Street which lies a short distance west of the locus. From these houses the project is separated only by their rear yards and by a narrow strip of project land. To the north of the project is an extension of a street known as Ashburton Place. On the south lies a way, apparently now improved, known as Nason Drive. To the east the project is separated from the tracks of the Boston and Maine Railroad by the project's own parking area and by a municipal parking area adjacent to the Melrose Highlands railroad station.

1. The Fairman case, 331 Mass. 160, we think, decided that the board of appeal existing under St. 1924, c. 22, remained in existence even after the revision of the

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zoning enabling act by St. 1954, c. 368, Section 1. The provision of St. 1971, c. 598, Section 3, continuing the members of the board of appeal in office until a new board is appointed, gives support to our conclusion. We assume (without deciding) that the variance provisions of Section 3 of the 1924 statute (see fn. 1), more flexible than those of G. L. c. 40A, Section 15, par. 3, continued to apply in Melrose at least until the 1924 statute was repealed and the board was abolished by St. 1971, c. 598, Sections 1, 2 (fn. 3, supra).

2. Even applying Section 3 of the 1924 statute to this public project, carried out for a proper public purpose, we are of opinion that the project does not meet the requirements of a variance as set out in Section 3. The power of the board of appeal (see fn. 1) is to "vary . . . [the] enforcement" of the zoning ordinance or to "make special exceptions" to its terms "where such exceptions are reasonably necessary for the public convenience." This, however, is not to be done where the board's decision will "conflict with the spirit of" the ordinance, but only when the action taken is "in harmony with the [ordinance's] general purpose and intent." We are of opinion that the construction of this large project on a 40,000 square foot vacant lot in a predominantly residential area is in conflict with the general purpose (see Section 25-2) of the zoning ordinance to establish the city as a residence A district except in specified districts where other uses are permitted. On certiorari, the decision of the board in granting a variance for this project would have been set aside if construction had not proceeded. The board, in its decision, properly stated that "it would have been more appropriate for the board of aldermen to exempt property of this character." See Pierce v. Wellesley, 336 Mass. 517, 518-519, 521, 523-524. This course was not followed.

3. Merely to set aside the board's decision will not deal with the case adequately, for the project is now completed and occupied. This is a public or quasi-public enterprise and it would frustrate the public purpose of the large expenditure to order the project demolished. Such action as a practical matter is unthinkable, and, indeed, the petitioners,

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in their supplemental brief, do not now ask for such relief, but only for an assessment of damages.

In reviewing action upon a writ of certiorari, only questions of law apparent on the face of the record are before us. In the present unusual circumstances, more flexible relief than is available by certiorari is now necessary. We think the remedy at law is not adequate (see Kenyon v. Chicopee, 320 Mass. 528, 534; Mark v. Kahn, 333 Mass. 517, 520; compare Smith v. Board of Appeals of Plymouth, 340 Mass. 230, 232) and that, despite the decision in the Fairman case, there must be resort to appropriate declaratory relief in equity.

4. The order for judgment on the petition for the writ of certiorari is reversed. That proceding and the suit in equity are remanded to the Superior Court, where that bill in equity is to be dismissed. The court shall allow a motion by the petitioners to amend (under G. L. c. 231, Section 55, as amended by St. 1935, c. 318, Section 6) the petition for a writ of certiorari to a bill in equity for declaratory relief (G. L. c. 231A). A decree is then to be entered declaring (1) that the board of appeal exceeded its authority in granting the variance; (2) that enforcement of the zoning ordinance by demolition or modification of the project is not to be permitted; (3) that jurisdiction of the new suit in the Superior Court is to be retained for eight months from the date of the decree (and for such further time as that court may allow) to permit the board of aldermen to take action to exempt this public project and the locus from the provisions of the Melrose zoning ordinance and (4) that, if such an exemption is not adopted prior to the expiration of such eight month period, as from time to time extended, then the petitioners may request that the court determine the diminution, if any, in the fair market value of their respective properties (as of the date of the completion of the project) and direct that the Authority pay such amounts, with interest, to the petitioners in full satisfaction of their claims and for the acquisition of the permanent easement hereinafter mentioned. As a condition of each such payment

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by the Authority, the petitioner to whom it is made shall grant to the Authority a permanent easement in fee, free of all encumbrances, over and affecting the grantor's land (which easement shall be appurtenant to the locus) to maintain the project as against the properties of the several petitioners. The new decree may also declare that all other claims based upon the granting of the variance are to be deemed barred by laches.

So ordered.