1 Mass. App. Ct. 87

December 12, 1972 - January 31, 1973

Middlesex County

Present: HALE, C.J., KEVILLE, & GRANT, JJ.

An owner of property who did not appeal under G. L. c. 40A, Section 21, as amended, from a decision of the board of appeals of a city granting zoning variances with respect to adjoining property, and after expiration of the appeal period filed a motion to intervene in an appeal from such decision seasonably brought by others but did not appeal from the denial of his motion, was not entitled to resort to a mandamus proceeding challenging the validity of the variances on the ground that he had no alternative remedy. [88]

PETITION for a writ of mandamus filed in the Superior Court on January 25, 1972.

The case was heard by Tomasello, J., on demurrer.

Allan Robinson (Charles F. Foster with him) for the petitioner.

Kenneth A. Cohen (Peter L. Speronis, City Solicitor, with him) for M.B. Associates.

KEVILLE, J. This action was begun by a petition for a writ of mandamus in the Superior Court to compel revocation of building permits for construction then in progress of an apartment complex in the city of Lowell. The permits were issued following the granting of two zoning variances by the board of appeals of that city.

In their demurrers, which were sustained, the respondents (the building inspector and deputy and the intervener, the lessee of the property) assert that the petition fails to state a cause of action and that mandamus will not

Page 88

lie where another effective remedy is available. We resolve the case on the latter ground. Although seeking to compel revocation of the building permits, in essence the petitioner challenges the validity of the variances granted by the board of appeals. He alleges no other flaw underlying the issuance of the permits.

The petitioner, an adjacent property owner, as his petition concedes, chose not to utilize avenues of appeal open to him under the zoning enabling act (G. L. c. 40A, Section 21, as amended through St. 1969, c. 706). He failed to appeal from the decision of the board granting the variances. Lincoln v. Board of Appeals of Framingham, 346 Mass. 418, 420. After the time had expired in which he could have appealed from that decision, he unsuccessfully sought to intervene in an appeal from that same decision seasonably brought to the Superior Court by others. [Note 2] He then neglected to appeal from the denial of his motion to intervene in that case which has now been disposed of by agreement.

Having allowed the time to pass in which these statutory remedies were available to him, he may not now have recourse to a petition for a writ of mandamus on the ground that he has no alternative remedy. 52 Am. Jur. 2d, Mandamus, Section 60. Bellevue Hotel Co. v. Building Commissioner of Boston, 299 Mass. 73, 75-76. The instant case is distinguishable from those relied upon by the petitioner, such as Gamer v. Zoning Board of Appeals of Newton, 346 Mass. 648, and Brady v. Board of Appeals of Westport, 348 Mass. 515, 519-523, and cases cited. Those cases relate to Sections 13 and 16 of G. L. c. 40A, in which mandamus became an appropriate remedy because alternative remedies were unreasonable or never in fact became available to the petitioner. Order sustaining demurrer affirmed.

Petition dismissed.


[Note 1] The deputy building inspector and M. B. Associates, the lessee of the property involved in this action, which was permitted to intervene as a respondent.

[Note 2] Albert J. Levasseur & another vs. Board of Appeals of Lowell & others, Middlesex Superior Court, Equity No. 32737.