Petitions - City of Somerville

738
Thursday, June 26, 1950
In answering the second and third questions propounded in that
order, the question of the legality of the action of the Beard"of Appeal in
this instance has been raised by Your Honorable Board. In arriving at my
opinion It was necessary to discuss the powers of the Board of Appeal.
The pavers of the Board of Appeal of Somerville are established
by Chapter 51 of the Acts of 1928, and gives fthe Board of Appeal authority
to pass on appeals with reference to the zoning and building laws of
the city in conformity with General Laws Chapter 40, section 27A. This section
provides that the Board of Appeal "may vary the application of any bylaw
or ordinance in specific cases wherein its enforcement would involve
practical difficulty or unnecessary hardship and wherein desirable relief may
granted without substantially derogating from the intent and purpose of
such by-law or ordinance but not otherwise". This same section also provides
that the Board shall cause a detailed record of its proceedings to be made
which record shall also set forth the reason for its decision, and also provides
the method of notice, which must be followed exactly. Reference is
made to this section for the detailed requirements of the statute.
If the Board of Appeal in granting the application of the petitioners,
Stokes and Finnigan, complied with the requirements of this statute,
then, of course, the action of the Board of Appeal has permanent results,
and the relief granted becomes appurtenant to the land and. governs the
use .of the land until such time as a different action is taken changing the
use in conformity with the law.
Examining the last record of the Board in this particular case ,
it doesn ! t appear anywhere in the record that there was any finding of fact
by the Board of Appeal; that notice was given to the owners of all property
deemed by the Board to be affected thereby; nor does 'it appear in the record
that the notice was advertised in a newspaper published in the city or town.
In fact, there is no statement in the record showing a return of service of
either the notice to the owners affected or return of notice on the newspaper
advertisement.
The Board of Appeal must strictly comply with the statute and
ordinances of "the city before its action can become affective.
See Prusik vs Board of Appeal 262 Massachusetts at the bottom
of page 455, and also page 456.
See also Bennett vs. Board of Appeal of Cambridge 1929 Advance
Sheets page 1827.
In the record of the Board of Appeal the petitioners stated
their grounds and reasons for appeal to be first, "the nature of the locality
has so radically changed since the construction of the Northern Artery that
it Is impossible, to use the property for residential purposes". That this
is not grounds for action by the Board of Appeal. .
See Nectow vs City of Cambridge 260 Massachusetts at the bottom
of page 447.
See also Norcross vs. Board of Appeal 225 Massachusetts, page
177.
See Prusik vs ^oard of Appeal 262 Massachusetts, page 457. In
this case the Court said "Financial situation or pecuniary hardship of a
single owner affords no adequate ground for putting forth this extraordinary
power affecting other property owners as well as the public^.
The second reason stated in the petition for action by the
Board of Appeal is also in my opinion insufficient to warrant action by the
Board of Appeal for the same reasons as stated above.
Even if the Board of Appeal had made proper findings of fact
with all the proper recitations required by the statute, and even if notice
required to be given by the Board of Appeal and returns of the same were also
correctly set forth in the records, the Board of Appeal in my opinion would
still be powerless to act in this case. The Board of Appeal under the statute
has power to "vary the application of the zoning law", but has no power to
"vary a 'provision of the zoning law". The pov/er to vary or change provisions
of the zoning law, which means changing the boundaries of districts, is a legislative
function, which, in my opinion, is vested solely in the Board of
Aldermen.
The Board of Aldermen of the city of Somerville acts with relation
to the zoning law in the same manner that the Beard of Zoning Adjustment
acts under the Boston zoning law. In varying the application of the law,
the Board of Appeal has authority to allow the extension or modification of
certain existing uses in the various districts or ;zones provided under the