CLARK & CLARK HOTEL CORP. & another [Note 1] vs. BUILDING INSPECTOR OF FALMOUTH.

DREBEN, J. The facts present a garden variety zoning dispute between the owner and the operator of the Sheraton Inn in Falmouth (plaintiffs) and the zoning enforcement officer (defendant building inspector) of the town. The difficulty arises because of uncertainty as to the proper forum in light of Banquer Realty Co. v. Acting Bldg. Commr. of Boston, 389 Mass. 565 (1983).

The defendant appeals from a judgment declaring that the plaintiffs' use of the meeting hall in their motel for certain

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intermittent sales is not precluded by the town's zoning by-law. [Note 2] The plaintiffs had leased their hall to a company known as AVL, Inc., to conduct a sale of stereo and other equipment during a three-day period beginning September 7, 1982. On September 7, 1982, the defendant went to the motel and ordered AVL to stop its sale, claiming that such use of the facility was in violation of Falmouth's zoning by-law. AVL complied with the order. Eight days later, without resort to the administrative remedies of G. L. c. 40A, the plaintiffs filed their complaint in the Superior Court.

The judge first dismissed the action because the plaintiffs had not exhausted their administrative remedies, but a few days later, relying on Banquer Realty Co. v. Acting Bldg. Commr. of Boston, 389 Mass. 565 (1983), he revoked his original order and ruled that exhaustion was not required. On the merits, he held that the plaintiffs' activities were not in violation of the by-law.

The issue before us is whether the plaintiffs may sidestep an appeal to the board of appeal (G. L. c. 40A, Section 8) and proceed directly in the Superior Court. The defendant, claiming they may not, makes the following two-pronged argument: (1) The Superior Court lacks jurisdiction; if a direct action in court is permissible, it must be brought in the Land Court, as that court has exclusive jurisdiction over such proceedings pursuant to G. L. c. 240, Section 14A, and G. L. c. 185, Section 1 (j 1/2). (2) Even if the Superior Court has jurisdiction of the plaintiffs' claim, the action should be dismissed because the plaintiffs have failed to exhaust their administrative remedies under G. L. c. 40A.

1. Jurisdiction of the Superior Court. The defendant asserts that the plaintiffs' action, although not so labeled, is in effect

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brought under G. L. c. 240, Section 14A, [Note 3] since it seeks a "determination of the extent to which [the zoning] by-law affects a . . . use" of their premises. Such actions, he claims, must be brought in the Land Court because G. L. c. 185, Section 1 (j 1/2), as appearing in St. 1981, c. 658, Section 1, provides that that court shall have exclusive original jurisdiction of complaints under G. L. c. 240, Section 14A, "to determine the validity and extent of municipal zoning ordinances, by-laws and regulations."

The defendant, however, fails to take into account the teaching of Woods v. Newton, 349 Mass. 373, 376-377 (1965), which permits owners who are "in dispute with public officials" because of "pending attempts to make use of land" to seek declaratory relief under G. L. c. 231A in the Superior Court instead of going to the Land Court under G. L. c. 240, Section 14A. The Supreme Judicial Court specifically stated that this procedure, "alternative to that given by c. 240, Section 14A, does not invade the exclusive jurisdiction of the Land Court of proceedings under that statute." Id. at 377. This court, too, recently referred to the alternate approach available in the Superior Court where, as here, an actual controversy exists. Mastriani v.

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Building Inspector of Monson, 19 Mass. App. Ct. 989, 990 (1985). See also Cape Resort Hotels, Inc. v. Alcoholic Licensing Bd. of Falmouth, 385 Mass. 205, 207 n.3 (1982).

2. Exhaustion of administrative remedies. That the Superior Court has subject matter jurisdiction and may, appropriately, at some stage of the proceedings, hear the matter, does not, however, resolve the question whether the court should defer in the first instance the administrative process. [Note 4]

"In recent years [the Supreme Judicial Court] has frequently emphasized the importance of judicial application of exhaustion principles . . ." Murphy v. Administrator of the Div. of Personnel Admn., 377 Mass. 217, 220 (1979), and cases cited. The general rule, even where there is an alternate judicial or statutory remedy providing access to the courts, is that, if administrative action "may afford the plaintiffs some relief, or may affect the scope or character of judicial relief, exhaustion of the possibilities [of such administrative action] should ordinarily precede independent action in the courts." Nelson v. Blue Shield of Mass., Inc., 377 Mass. 746, 752 (1979). [Note 5] Gordon v. Hardware Mut. Cas. Co., 361 Mass. 582, 587 (1972). J. & J. Enterprises, Inc. v. Martignetti, 369 Mass. 535, 540 (1976).

In the zoning area, application of exhaustion principles has been complicated. See generally Ryckman, Judicial and Administrative Review in Massachusetts Zoning and Subdivision

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Control Cases, Part 1, 52 Mass. L. Q. 297, esp. at 298 (1967); Part 2, 53 Mass. L. Q. 23 (1968). The complexity is due in part to the inadequacy of the remedies provided by the former c. 40A, [Note 6] see Brady v. Board of Appeals of Westport, 348 Mass. 515, 519-520 (1965), and by the existence of a parallel remedy in c. 240, Section 14A, which contains, in certain cases, a statutory directive eliminating the exhaustion requirement. Banquer, 389 Mass. at 572-573.

Nevertheless, we think the doctrine of exhaustion is alive and well in the zoning area. The recent case of Whitinsville Retirement Soc., Inc. v. Northbridge, 394 Mass. 757 (1985), bears proof, and, although Banquer appears to pull in another direction, we think that Banquer, too, supports exhaustion principles. [Note 7]

Although Banquer did not require the plaintiffs to follow the administrative route, the court reaffirmed the "general rule" that, "[i]n the absence of a statutory directive to the contrary, the administrative remedies should be exhausted before resort to the courts." Banquer, 389 Mass. at 572, quoting from Gordon v. Hardware Mut. Cas. Co., 361 Mass. at 587. The court also recognized the validity of Murphy v. Administrator of the Div. of Personnel Admn., supra, 377 Mass. at 220. It seems that, but for the legislative determination found by the court in c. 240, Section 14A, exhaustion principles would have applied.

In the more recent case of Whitinsville Retirement Soc., Inc. v. Northbridge, 394 Mass. 757 (1985), the court held that the Land Court did not have subject matter jurisdiction under G. L. c. 240, Section 14A, to interpret the effect of a special permit so as to allow the plaintiff to sidestep an appeal to the board of appeals. In explaining the purpose of the statute, the court said, "The evil to be remedied" by Section 14A, is "a situation where someone may be forced to invest in land and then subsequently

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find out that there are restrictions." That provision and G. L. c. 185, Section 1 (j 1/2) "may not be used to avoid the normal appellate route required in zoning disputes." 394 Mass. at 763.

We now examine Banquer more closely. There, plaintiff A had a written agreement with plaintiff B to enter into a lease for the purpose of erecting a concrete batching plant in an industrial zone. Pursuant to the agreement, A and B and others jointly applied for a building permit to construct the plant. The permit was granted [Note 8] and plaintiff A signed a contract to supply and deliver concrete for an extension of the Massachusetts Bay Transportation Authority system. Subsequently, the plaintiffs were informed that the permit had been issued in error and that it was revoked. The plaintiffs were allowed to seek relief under G. L. c. 240, Section 14A, without appealing the denial of the permit to the board of appeals as provided in c. 40A.

Banquer relied on the following language of Section 14A, see note 3, supra, to indicate that exhaustion was not required: "The right to file and prosecute . . . a petition [under this section] shall not be affected by the fact that no permit or license to erect structures or to alter, improve or repair existing structures on such land has been applied for . . . ." The plaintiffs in Banquer entered into the lease and the contract to supply concrete in reliance on the action of the building inspector and "subsequently [found] out that there [were or might be] restrictions". Whitinsville at 763. They were thus in at least as precarious a position as the investor Section 14A was designed to protect. See also Addison-Wesley Publishing Co. v. Reading, 354 Mass. 181, 185 (1968).

In allowing the direct action, the Banquer court stated, "We perceive no reason why the availability of the same judicial relief should be precluded once a plaintiff has applied for a permit but has been denied." 389 Mass. at 573. We do not take that statement to mean that the normal appellate route of c. 40A can be avoided whenever a dispute arises as to "the extent to which" a by-law affects a use. See note 3, supra. Rather, in light of Whitinsville's injunction that c. 240, Section 14A,

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may not be used to supplant the usual appellate route, we view Banquer as a situation calling for unusual relief. We also note that the acting building inspector there, in revoking the permits, did so for reasons found questionable by the trial judge. Banquer at 568. See Castelli v. Selectmen of Seekonk, 15 Mass. App. Ct. 711, 716 (1983). Thus, we do not construe Banquer to mean that every owner denied a building permit by reason of some provision of the zoning law may by-pass the board of appeal and file an action under c. 240, Section 14A.

Even if our reading of the scope of Banquer is too restrictive, we do not find here, as was found in Banquer, a legislative determination that resort to local zoning procedures may be ignored. Exhaustion is the normal rule and exceptions to it are not to be readily invited. "Courts must be careful not to invade the province of an administrative board," Gordon, 361 Mass. at 586, quoting from St. Luke's Hosp. v. Labor Relations Commn., 320 Mass. 467, 470 (1946), particularly where, as here, the issue is factual, notwithstanding the statement of agreed facts. See Harvard v. Maxant, 360 Mass. 432, 439 (1971), pointing out that the question whether a particular use is "customarily incidental" to another use is a "factual issue." Indeed, that question is peculiarly apt for local interpretation.

The language of G. L. c. 240, Section 14A, relied on in Banquer as a "statutory directive" speaks only of building permits and architects' plans, and clearly relates to construction, an area where the Legislature could reasonably determine that a landowner, because of the expense involved, is entitled to the extra measure of security which is provided by initial court approval. [Note 9] No other language was relied on in Banquer.

Moreover, this is not an action pursuant to c. 240, Section 14A. Although Woods v. Newton, 349 Mass. 373 (1965), permits an owner

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to seek declaratory relief in the Superior Court, such an action is not one under c. 240, Section 14A, but is brought under G. L. c. 231A. Thus the statutory directive found by the Banquer court in c. 240, Section 14A, can, at most, serve only as a model.

Banquer, by distinguishing two cases which required exhaustion, suggests that c. 240, Section 14A, stands apart. In discussing Church v. Building Inspector of Natick, 343 Mass. 266 (1961) (mandamus), and Goldman v. Planning Bd. of Burlington, 347 Mass. 320, 325-326 (1964) (action for declaratory relief in Superior Court), the Banquer court said: "In neither of these cases, however, was there statutory language indicating that the Legislature did not intend exhaustion to be a requirement. Specifically, neither of these cases involved an action under G. L. c. 240, Section 14A." 389 Mass. at 573-574. [Note 10]

With the benefit of the admonition in Whitinsville, we think that if on this record exhaustion is not required, no owner would be likely to follow the administrative route where a use is questioned by a zoning enforcement official. General Laws c. 231A would become the normal method of challenge.

We are further influenced by the fact that a construction of G. L. c. 231A which would allow the plaintiffs to seek relief here, without following the administrative route, would be counter to the policy of c. 40A, Section 7, even if not forbidden by the express words of that statute, see Banquer at 574-575, and might result in premature interference with administrative action. Cf. J. & J. Enterprises, Inc. v. Martignetti, 369 Mass. at 539 (exhaustion policy is similar to that precluding premature interference with a pending criminal proceeding).

There is no showing that the remedy of c. 40A is here inadequate, that the local officials are bowing to improper pressures, that the question is one purely of law, [Note 11] or that any other exception

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to the doctrine of exhaustion is here applicable. Unlike the situation in Banquer, there is no statutory directive here excusing exhaustion.

For these reasons, the matter is remanded to the Superior Court with directions to dismiss the action. [Note 12]

So ordered.