Home CARL A. NEUHAUS & another [Note 1] vs. BUILDING INSPECTOR OF MARLBOROUGH & others. [Note 2]

11 Mass. App. Ct. 230

December 8, 1980 - January 26, 1981

Middlesex County

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

An action in the nature of mandamus to compel a city's building inspector to revoke a building permit and to enforce a provision of the city's zoning ordinance against the owners of property abutting lots owned by the plaintiffs was properly dismissed where the plaintiffs failed to pursue their administrative remedies before resorting to the court for enforcement, as required by G. L. c. 40A, Section 7, as appearing in St. 1975, c. 808, Section 3. [231-235]

CIVIL ACTION commenced in the Superior Court Department on May 4, 1979.

The case was heard by Cratsley, J., a District Court judge sitting under statutory authority.

Argeo P. Cellucci for the plaintiffs.

Susan B. Hulme for Richard L. Wiedeman & another.

Aldo A. Cipriano, Assistant City Solicitor, (Kuson J. Haddad, City Solicitor, with him) for the Building Inspector of Marlborough.


GRANT, J. In the latter part of December, 1978, the building inspector of Marlborough issued a building permit to the defendants Wiedeman for the erection of a single-family modular home on a lot owned by them which adjoins lots severally owned by the plaintiffs. When the Wiedemans started construction in the early part of May, 1979,

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the plaintiffs filed a complaint in the Superior Court by which they sought to maintain an action in the nature of mandamus to compel the building inspector to revoke the building permit and to enforce against the Wiedemans a minimum lot frontage requirement of the city's zoning ordinance. Two requests by the plaintiffs for preliminary injunctive relief were denied after hearing.

It appeared at trial, which was conducted the following November, that neither of the plaintiffs had ever made any request in writing of the building inspector that he enforce the ordinance in question, as contemplated by G. L. c. 40A, Section 7, as appearing in St. 1975, c. 808, Section 3. [Note 3] The trial judge concluded that "[t]he plaintiffs have not exhausted their administrative remedies before coming to this [c]ourt" and ordered the action dismissed. [Note 4] The plaintiffs appealed from the ensuing judgment of dismissal. We affirm the judgment.

Our reasons for doing so are found in the provisions of the present G. L. c. 40A which require that all questions concerning the enforcement of valid zoning ordinances and by-laws [Note 5] be determined at the local administrative level before resort may be had to a court for enforcement.

General Laws c. 40A, Section 7, provides: "The inspector of buildings . . . or person or board designated by local ordinance or by-law, shall be charged with the enforcement of

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the zoning ordinance or by-law [Note 6] and shall withhold a permit for the construction, alteration or moving of any building or structure if the building or structure as constructed, altered or moved would be in violation of any zoning ordinance or by-law; and no permit or license shall be granted for a new use of a building, structure or land which use would be in violation of any zoning ordinance or by-law. If the officer or board charged with enforcement of zoning ordinances or by-laws is requested in writing to enforce such ordinances or by-laws against any person allegedly in violation of the same and such officer or board declines to act, he shall notify, in writing, the party requesting such enforcement of any action or refusal to act, and the reasons therefor[], within fourteen days of receipt of such request." [Note 7] The second sentence of the second paragraph of Section 7 reads in material part: "No action, suit or proceeding shall be maintained in any court . . . except in accordance with the provisions of this section, section eight and section seventeen . . ." (emphasis supplied). The third paragraph of Section 7 confers jurisdiction on the Superior Court to "enforce the provisions of this chapter, and any ordinances or by-laws adopted thereunder, and [to] restrain by injunction violations thereof."

Section 8 of G. L. c. 40A provides in pertinent part: "An appeal to the permit granting authority as the zoning ordinance or by-law may provide, [Note 8] may be taken by any person aggrieved by reason of his inability to obtain . . . enforcement action from any administrative officer under the provisions of this chapter . . . or by any person . . . aggrieved

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by an order or decision of the inspector of buildings, or other administrative official, in violation of any provision of this chapter or any ordinance or by-law adopted thereunder." Section 15 of that chapter provides that an appeal under Section 8 "shall be taken within thirty days from the date of the order or decision which is being appealed, by filing a notice of appeal, specifying the grounds thereof, with the city or town clerk . . . ."

Section 14 of c. 40A contains an express grant of jurisdiction to a board of appeals "(1) [t]o hear and decide appeals in accordance with section eight." [Note 9] The concluding paragraph of that section reads: "In exercising the powers granted by this section, a board of appeals may, in conformity with the provisions of this chapter, make orders or decisions, reverse or affirm in whole or in part, or modify any order or decision, and to that end shall have all the powers of the officer from whom the appeal is taken . . . ."

Returning to Section 15, we find that the board of appeals is required to hold a public hearing on the appeal, after notice (see Section 11), within sixty-five days of the city or town clerk's transmission of the appeal to the board and to render a decision on the appeal within seventy-five days after the date of the filing of the appeal. [Note 10] Notice of the decision must be mailed to the appellant forthwith. The last sentence of Section 15 provides: "Each notice shall specify that appeals, if any, shall be made pursuant to section seventeen and shall be filed within twenty days after the date of filing of such notice in the office of [the] city or town clerk."

Section 17 provides for an appeal to an appropriate court by "[a]ny person aggrieved by a decision of the board of appeals . . . whether or not previously a party to the proceeding,

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. . . by bringing an action within twenty days after the decision has been filed in the office of the city or town clerk." In the seventh sentence of the second paragraph of that section we find the long-familiar powers of the court which formerly appeared in G. L. c. 40A, Section 21, as in effect prior to St. 1975, c. 808, Section 3: "The court shall hear all evidence pertinent to the authority of the board . . . and determine the facts, and, upon the facts as so determined, annul such decision if found to exceed the authority of such board . . . or make such other decree as justice and equity may require."

We have carefully considered all the arguments advanced by the plaintiffs as to why they should not be required to exhaust the administrative remedies set out in the statute before resorting to a court, and in particular their argument as to the time which may be consumed in pursuing the administrative process under c. 40A, Sections 7, 8 and 15. [Note 11] We have also reviewed the line of cases represented by Brady v. Board of Appeals of Westport, 348 Mass. 515 , 517-522 (1965), which generally permitted a citizen (including abutters such as these plaintiffs) to proceed by mandamus to vindicate the public right to enforcement of zoning ordinances and by-laws. [Note 12] We have also noted on our own that nothing in any of Sections 7, 8, 11, 15 and 17 provides for written notice to the person against whom enforcement is sought that his

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rights have been drawn into question, with the result that practical as well as legal problems may arise if a building inspector or other enforcement officer is ultimately ordered to pursue the administrative or judicial remedies available under Section 7. See Dresser v. Inspector of Bldgs. of Southbridge, 348 Mass. 729 , 731 (1965); Woods v. Newton, 349 Mass. 373 , 379 (1965). [Note 13]

But when all is said and done, there is no escape from the explicit prohibition of Section 7 that "[n]o action, suit or proceeding shall be maintained in any court . . . except in accordance with the provisions of [Sections 7, 8 and 17]." The voluminous legislative history of the present c. 40A (see, e.g., 1972 House Doc. No. 5009, at 54, 55-57, 59-61, 94-96, 99-103; 1974 House Doc. No. 2522, at 30-36; 1974 House Doc. No. 5864, at 12-13, 19-23; 1975 House Doc. No. 5600, at 11-12, 19-23) compels the conclusion that Section 7 means exactly what it says.

Judgment affirmed.


FOOTNOTES

[Note 1] Robert J. Galvin.

[Note 2] Richard L. and Patricia A. Wiedeman.

[Note 3] Except as otherwise specifically indicated, all references to provisions of G. L. c. 40A are to the provisions of that chapter as they appeared in St. 1975, c. 808, Section 3. None of the changes in those provisions which were effected by St. 1977, c. 829, and by St. 1978, c. 478, Section 32, is of any significance in the present case.

[Note 4] In the view we take of this case, there is no need to consider any of the other reasons given by the judge for dismissing the action.

[Note 5] No question has been raised as to the validity of the ordinance which is involved in this case. We leave to another day the question whether the statutory provisions discussed in this case must be followed in a case in which a contention is raised that a zoning ordinance or by-law, or some amendment thereof, is invalid. See G. L. c. 185, Section 1 (j 1/2). See also Healy, Massachusetts Zoning Practice Under the Amended Zoning Enabling Act, 64 Mass. L. Rev. 157, 163 (1979).

[Note 6] The building inspector is the person so charged under the Marlborough zoning ordinance.

[Note 7] The Marlborough ordinance was amended shortly prior to June 30, 1978 (see Casasanta v. Zoning Bd. of Appeals of Milford, 377 Mass. 67 , 71-73 [1979]), to include a provision that reads almost directly on the last sentence of this quotation.

[Note 8] General Laws c. 40A, Section 1A, inserted by St. 1977, c. 829, Section 3A, defines the "[p]ermit granting authority" as the "board of appeals or zoning administrator." Marlborough does not have a "zoning administrator." See G. L. c. 40A, Section 13.

[Note 9] The Marlborough zoning ordinance contains a cognate provision adopted by the city council on June 26, 1978.

[Note 10] We are at a loss to understand why the fourth paragraph of Section 15 requires more than a simple majority of a board of appeals to set aside an illegal act of a building inspector or to enter an order requiring him to enforce the provisions of a zoning ordinance or by-law. That anomaly may result in needless appeals to a court solely for the purpose of invoking its powers under the seventh sentence of the second paragraph of G. L. c. 40A, Section 17.

[Note 11] If the plaintiffs had diligently exhausted their administrative remedies in this case, they could have been in court at approximately the same time that the present action was commenced.

[Note 12] Compare Dresser v. Inspector of Bldgs. of Southbridge, 348 Mass. 729 , 730 (1965); Harrison v. Building Inspector of Braintree, 350 Mass. 559 , 561 (1966); Kennedy v. Building Inspector of Randolph, 351 Mass. 550 , 553 (1967); Cullen v. Building Inspector of No. Attleborough, 353 Mass. 671 , 674 (1968); Crawford v. Building Inspector of Barnstable, 356 Mass. 174 , 180 (1969). Contrast Stow v. Pugsley, 349 Mass. 329 , 331, 335 (1965); Hallenborg v. Town Clerk of Billerica, 360 Mass. 513 , 519 (1971); Saab v. Building Inspector of Lowell, 1 Mass. App. Ct. 87 , 88 (1973). There is nothing in Massachusetts Outdoor Advertising Council v. Outdoor Advertising Bd., 9 Mass. App. Ct. 775 , 788-789 (1980), contrary to the conclusion which we reach in this case.

[Note 13] Even in the absence of any statutory requirement, it would be prudent and sensible for the person seeking enforcement to give notice of the pending administrative proceedings to the person against whom enforcement is sought. The latter would be entitled to be heard at every stage of the proceedings and would clearly be a "person aggrieved" within the meaning of Section 17.