This is a bill in equity on appeal from a decision of the defendant board of appeals upholding the refusal of the commissioner of public buildings of the city of Somerville to grant a permit to the plaintiff to erect a traveling hoist and crane on land owned by him at 9 Tyler Street in that city. G.L. (Ter. Ed.) c. 40, § 30, as appearing in St. 1933, c. 269, § 1, and as subsequently amended. In the Superior Court a decree was entered annulling the decision of the defendant board and ordering the board to direct the commissioner to issue the permit and a certificate of occupancy. The defendant board appealed.
The plaintiff is the owner and operator of a business of fabricating and cutting and processing of steel at 10 Tyler Street. The land at 9 Tyler Street is directly across the street, and contains about 4,620 square feet. It is in a block bounded by Somerville Avenue, Dane Street, Tyler Street, and Vine Street, which, when the bill was filed, was zoned as "Industrial A," where the plaintiff's intended use was permitted. The plaintiff's purpose was to store steel and iron used in the business and to erect the crane to handle this material.
The plaintiff commenced construction in March, 1952, without obtaining a permit. On April 1 he filed an application
The defendant board, to which the plaintiff appealed, held a public hearing on May 26. The commissioner there testified that he would have granted the permit had no objection been raised. The other evidence at the hearing did not attack the structure as such, and revealed no danger to the public in the plaintiff's intended use. The defendant board took no action until ordered to do so by the Superior Court. On July 7 the board voted to sustain the action of the commissioner and "refused the appeal" on the ground that the intended construction and use of the lot would be a detriment to the community.
On June 5 the board of aldermen voted that the planning board arrange for the immediate consideration of a proposal for the rezoning as a "Residence B District" of the area bounded by Somerville Avenue, Dane Street, Tyler Street, and Vine Street, "so that this matter may be acted upon without delay by this board of aldermen as the proposed rezoning of this particular area is particularly urgent." On July 10 the planning board held a hearing and on July 28 sent the board of aldermen "an opinion," reading in part: "In rendering its opinion, this board has considered the recent recommendation of the board of aldermen that the planning board review and revise the present zoning ordinance so that the entire city may be rezoned. The planning board commends this official recognition by your honorable board that the use of land in Somerville has, in the past twenty-six years undergone considerable change, and that the zoning ordinance of the city should therefore be brought up to date. Since the work is now under way that will enable us to meet the request of your board, the
The foregoing facts are from the report of a master, who further found that, under the building code of the city, if it appears from applications and drawings submitted by an applicant that the ordinances will be complied with, a permit for the proposed construction "shall be granted" by the commissioner; that the plaintiff's application showed such compliance; and that the commissioner so admitted.
Other facts appearing in a stipulation filed subsequent to the filing of the master's report are these. The report of the planning board was received on August 12 by the board of aldermen which, pursuant to a notice published in a local newspaper, held a public hearing on September 11. On that date the board of aldermen unanimously voted, with nine out of eleven members present, to change the area bounded by Somerville Avenue, Dane Street, Vine Street, and Tyler Street from an "Industry A District" to a "Residence B District." The mayor approved the ordinance on September 22. The area rezoned measures approximately 400 feet by 380 feet and contains approximately 150,000 square feet. The plaintiff's intended use of the land at 9 Tyler Street is not permitted in a "Residence B District."
It was the statutory duty of the commissioner of public buildings to grant the plaintiff a permit for the erection of a structure which was in conformity with the ordinances. G.L. (Ter. Ed.) c. 40, § 29, as appearing in St. 1933, c. 269, § 1. His failure so to do was also a violation of the building code of the city. In the beginning, accordingly, his action was palpably invalid. The action of the defendant board was likewise in error. Its duty was to "make such order or decision as ought to be made," and it has "all the powers of the officer from whom the appeal is taken and may issue
By the time the final decree was entered on September 30, however, the zoning ordinance had been purportedly amended on September 22. The fact that the plaintiff filed his application for a permit before the ordinance was amended gave him no vested rights. Spector v. Building Inspector of Milton, 250 Mass. 63, 71. See Brett v. Building Commissioner of Brookline, 250 Mass. 73, 79-80; G.L. (Ter. Ed.) c. 40, § 28, as appearing in St. 1941, c. 176. If the amendment is valid, the relief to which the plaintiff would otherwise have been entitled cannot be given.
"Final relief in equity should be adapted to the facts existing at the time of the entry of the decree." Giles v. Giles, 293 Mass. 495, 499-500. Bell v. Treasurer of Cambridge, 310 Mass. 484, 488. MacLennan v. MacLennan, 311 Mass. 709, 712-713. Jubinville v. Jubinville, 313 Mass. 103, 109. The leading statement by Mr. Justice Gray, formerly Chief Justice of this court, in Mills v. Green, 159 U.S. 651, 653, is: "The duty of this court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it. It necessarily follows that when, pending an appeal from the judgment of a lower court, and without any fault of the defendant, an event occurs which renders it impossible for this court, if it should decide the case in favor of the plaintiff, to grant him any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal." Tennessee v. Condon, 189 U.S. 64, 71. United Corp. v. Federal Trade Commission, 110 Fed. (2d) 473, 476 (C.C.A. 4). 19 Am. Jur., Equity, § 411. 30 C.J.S., Equity, § 600. In oral argument the plaintiff stressed the inapplicability of
The plaintiff contends that the amendment to the zoning ordinance was invalid because of failure to comply with that portion of G.L. (Ter. Ed.) c. 40, § 27, as appearing in St. 1941, c. 320, which reads: "No ordinance ... originally establishing the boundaries of the districts or the regulations and restrictions to be enforced therein, and no ordinance ... changing the same as aforesaid, shall be adopted until after the planning board ... has held a public hearing thereon after due notice given and has submitted a final report with recommendations to the city council...." We think that as matter of interpretation the "opinion" of the planning board sent to the board of aldermen under date of July 28 must be regarded as "a final report with recommendations." To be sure, there were a reference to a rezoning of the entire city then under consideration and a statement that a recommendation of "a spot zone change at this time" would unfairly affect the planning board's duty to review the zoning of the city as a whole. We nevertheless think that this was a definite negative recommendation, which was final notwithstanding the allusion to continuing comprehensive consideration of the subject of zoning. In Whittemore v. Town Clerk of Falmouth, 299 Mass. 64, 67-68, the planning board because of a tie vote reported to the town meeting that it was "unable at this time to make any recommendation."