SAMUEL MORGANELLI & another [Note 1] vs. BUILDING INSPECTOR OF CANTON & another. [Note 2]

DREBEN, J. This is an appeal by two abutters from a judgment, entered after trial, dismissing their complaint seeking enforcement of the zoning by-law of the town of Canton. We affirm on the ground of res judicata.

The plaintiffs in this action are owners of property in Canton immediately adjacent to a lot (Lot 28) owned by the defendant, Francis A. Leahy, trustee of Breton Realty Trust. The other defendant, Dominic Duganiero, is the building inspector of the town. The plaintiffs in their complaint, as amended, seek: (1) an order revoking a building permit issued by the building inspector because the proposed residence of the defendant Leahy does not meet the front setback requirements of the Canton zoning by-law; (2) an injunction prohibiting Leahy from continuing to build on his property; and (3) an order requiring Leahy to remove all structures and to restore the lot to the condition it was in prior to the start of construction. Leahy's answer raised res judicata as an affirmative defense. The answer of the building inspector averred that the permit complied with a 1974 judgment in an action brought by Leahy's predecessor in title, Paul B. Morley. [Note 3]

In order to determine whether the plaintiffs in this action are barred by the Morley litigation, [Note 4] we have to determine the scope of that litigation, whether it adjudicated the matters raised in this action and, if it did, whether these plaintiffs are bound by the prior judgment.

1. We first examine the scope of the scope of the prior litigation. The trial judge in this action found that "the exact issues presented for consideration in the present suit were considered by the court and fully litigated and contested between the plaintiffs in the original Morley suit and the

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Building Inspector of the Town of Canton." While we do not have before us the entire record of the Morley litigation, [Note 5] the material we do have, and which will be discussed more fully below, clearly indicates that the judgment in Morley, if binding on the plaintiffs, bars the claims raised here.

The facts concerning the Morley litigation are derived from the pleadings, from an "Agreed Statement of Facts" filed by the parties, and from the findings, rulings and orders of the judge in that case.

Morley was a petition for a writ of mandamus brought by the previous owner of Lot 28, asking that the building inspector be directed to issue a building permit. [Note 6] Although the lot did not meet either the area or the setback requirements of the governing by-law, Morley claimed that his lot came within certain exceptions in the by-law which permitted him to build on the lot. One exception was a grandfather clause (Section VII) which permitted construction if the lot (1) met the area requirements of the zoning by-law when the lot was laid out, (2) was not subsequently reduced in size so as further to increase its nonconformity with the area, width and frontage requirements (except by a taking by eminent domain), and (3) met all the other provisions of the then current by-law.

The original lot as laid out and recorded in 1939 showed a ninety-foot depth from the street (Pleasant Circle, formerly known as Daniels Road). In 1946, however, the town laid out the street twenty feet farther south than shown on the 1939 plan so that the lot, in fact, was approximately seventy feet deep and not ninety feet deep. [Note 7] Both the building inspector and Morley agreed that the

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lot met the area requirements applicable at the time the lot was laid out and recorded in 1939, but the building inspector claimed that the lot had subsequently been reduced so as to increase its nonconformity.

Another exception in the by-law (Section VIII C) stated that a building could be constructed as near to the street line as the average of the setbacks of the dwellings on either side of the lot. It was agreed by the parties in Morley that the average setback from the street of the buildings on either side of the lot was twenty-two and one half feet. [Note 8]

The judge in Morley issued initial "findings, rulings and order" in January, 1974, and decided that "it is permissible to build a single family home on the subject lot." He also ordered that a writ of mandamus issue directing the building inspector to issue a building permit. The building inspector filed a claim of appeal. On April 2, 1974, the judge withdrew his January findings, rulings and order (the reason for such withdrawal does not appear) [Note 9] and, on April 8, 1974, issued new "findings, rulings and order," which contained the following new ruling: "Due to the taking [Note 10] and the exemption of the lot from the

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6500 square foot requirement under the 1939 public taking clause, I find that this lot is presently buildable for a single family dwelling with 22.5' setback measured from original street line" as shown on the 1939 plan (emphasis supplied). This ruling was erroneous as set forth in the margin. [Note 11]

The April ruling also specified the rear and side yard requirements, and stated that the building inspector had unlawfully denied Morley a permit. The judge ordered that a writ of mandamus issue directing the issuance of a building permit to Morley. The appeal by the building inspector from the January order was withdrawn on the same day that the new order was issued, and no appeal was taken from the April order.

2. The foregoing detailed description of the Morley litigation shows that the matters raised in this action were conclusively settled in Morley. The plaintiffs claim, however, that Morley is not a bar to this proceeding because Section VIII of the Canton by-law governing setbacks was not referred to in the pleadings in Morley and that the only reference in the pleadings was to Section VII which relates to lot areas, widths and exceptions for existing lots. We do not agree.

The setback questions were obviously before the court. The statement of agreed facts specifically referred to Section VIII C of the by-law (the same section that is relied upon in the complaint in this action) and set forth that the building would have a "reduced" setback and would meet the setback exception measured by the mean distance of adjoining buildings.

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The judge's rulings and order in Morley specified the exact front, back, and side yard requirements for a building on Lot 28 and ordered the building inspector to issue a permit for a residence meeting such requirements. Under these circumstances, the ruling as to the front yard requirement under the zoning by-law was "inextricably interwoven with the rulings of law and order for judgment." Sheehan Constr. Co. v. Dudley, 299 Mass. 48, 50-51 (1937). Cf. Trustees of Stigmatine Fathers, Inc. v. Secretary of Admn. & Fin., 369 Mass. 562, 564, 566 (1976). The right to put a building on the property with a 22.5' setback as shown on the 1939 plan is conclusive upon the parties and those persons whom they represent. Jamaica Pond Aqueduct Corp. v. Chandler, 121 Mass. 1, 2 (1876). It is a "fundamental precept of common-law adjudication," that a right determined by a court of competent jurisdiction cannot be disputed in a subsequent proceeding between such persons. Montana v. United States, 440 U.S. 147, 152-153 (1979).

Moreover, the claim raised by the plaintiffs in this action is the same claim which was raised in Morley, namely that the zoning by-law of Canton precludes a building on Lot 28. Even if the front setback requirements had not been before the court, the Morley case cannot be viewed as an action to determine whether Section VII of the Canton by-law precluded a building on Lot 28, and this action as one to determine whether Section VIII precludes a building on such lot. It is rudimentary, whatever the definition of "claim," or of the older term "cause of action," that all the defenses to the issuance of a building permit for Lot 28 based on the Canton zoning by-law had to be raised in the prior action. The first action would be a bar even if, as is not the case here, only one section of the by-law had been put in issue. Trustees of Stigmatine Fathers, Inc. v. Secretary of Admn. & Fin., 369 Mass. at 564-567. See Restatement (Second) of Judgments Section 47 (Tent. Draft No. 1, 1973) and Section 61(2) (Tent. Draft No. 5, 1978).

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3. We next turn to the question whether the plaintiffs who were not parties to the Morley litigation are, nevertheless, bound by its judgment. [Note 12] That question, in turn, depends on the nature of the plaintiffs' interest, whether that interest was represented in Morley, and whether there are special circumstances or due process considerations which make it unfair to bind the plaintiffs to that judgment. As we have seen earlier, the plaintiffs are here challenging, as a violation of the zoning by-law, Leahy's right to construct a building on his land. Under Massachusetts law, abutters or neighboring property owners do not have a private cause of action for direct enforcement of zoning regulations. O'Brien v. Turner, 255 Mass. 84, 85-86 (1926). Circle Lounge & Grille, Inc. v. Board of Appeal of Boston, 324 Mass. 427, 431 (1949). Boyle v. Building Inspector of Malden, 327 Mass. 564, 566-567 (1951). Nigro v. Jones, 332 Mass. 741, 744 (1955). Smith v. Board of Appeals of Plymouth, 340 Mass. 230, 234 (1960). Flynn v. Seekonk, 352 Mass. 71, 73 (1967). Onorati v. O'Donnell, 3 Mass. App. Ct. 739 (1975). Compare Ballantine v. Falmouth, 363 Mass. 760, 765 n.4 (1973).

The responsibility for enforcing zoning ordinances or by-laws lies with the municipality and is assigned by statute to the building inspector or other specified municipal officers. G. L. c. 40A, Section 7. [Note 13] Brady v. Board of Appeals of Westport, 348 Mass. 515, 518 (1965). Except for rights specifically granted by statute (see note 16, infra), citizens and abutters only have the right to call upon the appropriate municipal officials to require enforcement of

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the zoning laws, and unless the officials decline or refuse to act, thereby creating a controversy between the officials and the citizen, the latter cannot bring an action. Woods v. Newton, 349 Mass. 373, 378-380 (1965). Only upon the showing of such a controversy can the citizen invoke, by an action in the nature of mandamus, the public right to have the "municipality enforce the applicable law." Brady, 348 Mass. at 518-519, 521 (emphasis supplied). Parrotta v. Hederson, 315 Mass. 416, 418 (1944).

It is not necessary to name the municipality as a party. Brady, 348 Mass. at 519. However, the enforcing officials are necessary parties to any such action. Smith v. Board of Appeals of Plymouth, 340 Mass. at 233-234. Onorati v. O'Donnell, 3 Mass. App. Ct. at 739. Whether such officials are prosecuting or defending an action, the proceeding in substance is one by or against the municipality. Brady, 348 Mass. at 518. Pitman v. Medford, 312 Mass. 618, 621 (1942). The municipality "represents its public," "appears in their behalf," and "represents the residents and property owners within its boundaries." Pitman, 312 Mass. at 621.

Thus, there is no question that the Morley action, in which the building inspector participated as the proper enforcing officer, was, in substance, a proceeding against the municipality of Canton in which the interests of all of the citizens of Canton, including the plaintiffs, were represented. The building inspector, by having refused to grant a permit for Lot 28 and by having defended the action brought against him by Morley, already sought the enforcement of the zoning by-law that the present action seeks to require. Cf. Stow v. Pugsley, 349 Mass. 329, 331 (1965). Based on our analysis of the legal interests of the plaintiffs as abutters and their representation by the town of Canton in the Morley action, we hold that the adjudication in Morley is now binding upon them. [Note 14]

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While we have not found any exact holding to this effect in Massachusetts, the result we reach is suggested by, or at least is consistent with, two cases. In Haverhill v. DiBurro, 337 Mass. 230, 236 (1958), the owners of an adjoining residence were allowed to intervene in an action brought by the city of Haverhill to enforce its zoning ordinance against the defendant. The court pointed out that it is "questionable whether an affected landowner, merely because he is such, may be let into a suit which is pending for enforcement of the ordinance or by-law." However, since in that case the city, by agreeing with the defendant on a form of decree dismissing the action, had voluntarily ended its enforcement proceedings prior to the allowance of the motion to intervene, the Supreme Judicial Court held that the trial judge could in his discretion admit into the case the landowners who, "upon a dismissal, without adjudication of rights, of the city's suit, would have had a right to bring a mandamus proceeding to require enforcement" (emphasis supplied) Id. We read the italicized language as intimating that the adjacent landowners would not have been allowed to intervene or to bring an action for mandamus if the rights of the city had previously been adjudicated.

We also read the discussion in Woods v. Newton, 349 Mass. at 379-380, where the court stated that there is no need to join as necessary parties all the other citizens of the municipality if the enforcing officer participates in the litigation, as indicating that once the "substantive controversy . . . is resolved" with such officer as a party, all the citizens of the municipality are bound. Such a reading makes sense in the light of the citation by the Woods court to pages 71-72 of Povey v. School Comm. of Medford, 333 Mass. 70 (1955), a portion of which the

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Woods court had previously quoted, [Note 15] and to Attorney General v. Dover, 327 Mass. 601, 608 (1951). The implication of Woods is that, after litigation participated in by the building inspector, a citizen will not be able to compel enforcement of a zoning ordinance judicially determined to be inapplicable. But see Brookline v. Co-Ray Realty Co., 326 Mass. 206, 213 (1950). Cf. Stow v. Pugsley, 349 Mass. at 331.

Our conclusion that the plaintiffs are bound by the prior action is supported by the Restatement (Second) of Judgments Section 85 (1) (d) (Tent. Draft No. 2, 1975) and by cases in other jurisdictions. Under Section 85.1(d) a person is bound by the rules of res judicata when represented by a party who is "(a)n official or agency invested by law with authority to represent the person's interests."

The most thoughtful discussion of representation of a nonparty by a governmental agency we have found is by Judge Wisdom in Southwest Airlines Co. v. Texas Intl. Airlines, 546 F.2d 84 (5th Cir.), cert. denied, 434 U.S. 832 (1977). In that case several airlines were held to have been represented by the city of Dallas in prior litigation against Southwest Airlines in which it had been determined that the city could not, by means of an ordinance, prevent Southwest Airlines from flying at an airport which the city wanted to close. The airlines were held

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bound by the prior litigation even though their own pecuniary interest in the success of a new airport exceeded the interest possessed by the general public. Despite such direct monetary interest, the court found that the carriers did not suffer a private legal wrong independent of the violation of the Dallas ordinance. The court, adopting the principle expressed in Comment (d) of Section 85 of the Restatement, applied that principle to hold that the prior proceeding was preemptive of the right of the airlines to bring a private action. Judge Wisdom stated "a private party must show more than a special pecuniary interest when attempting to vindicate the breach of a public duty already litigated by a government agency. Permission to relitigate appears reserved for the private plaintiff who would vindicate a breach of duty owed specifically to the plaintiff or who would recover under a `statutory system of remedies [that] may contemplate enforcement of private interests both by a public agency and the affected private parties.'" Id. at 100, quoting from Restatement (Second) of Judgments Section 85, Reporter's Note to Comment (d) (Tent. Draft No. 2, 1975).

We believe the present case is stronger than Southwest Airlines Co. Not only are the legal interests of the town and the plaintiffs identical, but here the plaintiffs have no direct private right at all. [Note 16] The public right has been litigated and the plaintiffs' right to assert that public right through a proceeding in the nature of mandamus is no longer available to them. Contrast Williamson v. Bethlehem Steel Corp., 468 F.2d 1201 (2d Cir. 1972), cert. denied, 411 U.S. 931 (1973).

Other courts, too, have invoked the same principle and have held that litigation by a governmental agency is binding on citizens who were not parties to the prior

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litigation. In Rynsburger v. Dairymen's Fertilizer Coop., Inc., 266 Cal. App. 2d 269, 276-278 (1968), homeowners in close proximity to a fertilizer plant were precluded from prosecuting an action alleging a private nuisance by reason of a previous suit lost by the city alleging a public nuisance. The homeowners were held to have been represented by the city in the previous suit. See also Price v. Sixth Dist. Agricultural Assn., 201 Cal. 502, 514 (1927) (taxpayers bound by suits brought by the mayor and the board of supervisors); Allied Van Lines, Inc. v. Central Forwarding, Inc., 535 S.W. 2d 412, 415-416 (Tex. Civ. App. 1976) (motor carriers held represented in prior proceedings by the Attorney General); Burnsville v. Bloomington, 264 Minn. 133, 145 (1962) (determination of the rights of the annexing municipality and of the other town will be res judicata on all the residents of the governmental units involved); Red Wing v. Wisconsin-Minnesota Light & Power Co., 139 Minn. 240, 245 (1918); Greene v. Art Inst. 16 Ill. App. 2d 84, cert. denied, 358 U.S. 838 (1958) (Art Institute bound as it was represented as a member of the public in prior litigation by the Attorney General); Cincinnati v. Cincinnati, 50 Ohio St. 2d 27 (1977); Hoffman v. Public Employees' Retirement Bd., 31 Or. App. 85 (1977). Also cf. Aerojet-Gen. Corp. v. Askew, 511 F.2d 710, 719 (5th Cir. 1975) (State boards held to represent a county). But see Patterson v. Burns, 327 F. Supp. 745 (D. Haw. 1971); California Optometric Assn. v. Lackner, 60 Cal. App. 3d 500 (1976).

The only remaining question is whether there are considerations which make it unfair to bind the plaintiffs to the Morley judgment. We think not. See Judge Wisdom's discussion of due process considerations in Southwest Airlines Co., 546 F.2d at 101-102; Note, Collateral Estoppel of Non-parties, 87 Harv. L. Rev. 1485, 1500 (1974).

One of the factors entering the balance as to whether it is unjust to bind a person not a party to litigation is the quality of the representation in the prior action. See Southwest Airlines Co., 546 F.2d at 102. Here, concededly,

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the earlier judgment was erroneous. However, there is no contention that there was collusion between the parties or that the building inspector sought to further his own interest at the expense of the persons he represented. There is no showing of incompetence, [Note 17] let alone the serious incompetence which would be necessary to attack the prior judgment. Restatement (Second) of Judgments Section 86, Comment (f) (Tent. Draft No. 2, 1975). Cf. Restatement (Second) of Judgments Section 123, Comment (d) (Tent. Draft No. 6, 1979). Cf. Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The usual rule is that judgments, even incorrect ones, are binding upon the parties and their representatives. Wright Mach. Corp. v. Seaman-Andwall Corp., 364 Mass. 683, 690-691 (1974). Stuart v. Winslow Elementary Sch. Dist. No. 1, 100 Ariz. 375, 388 (1966). The record contains no evidence which leads us to depart from that rule.

In weighing the other considerations which lead us to rule that the plaintiffs are bound by the prior action, we deem most important the limited nature of the plaintiffs' interest discussed in part 2 of this opinion. Balanced against that interest, which is to see that the public duty is enforced, are the public and private interests against relitigation of issues previously decided. Where the issuance of a permit to a landowner is contested by the municipal official charged by statute with the enforcement of the zoning by-law, [Note 18] and where, after litigation, a court determines that the lot is a buildable one, the landowner, or persons in privity with him, should be able to rely on that decision in the absence of special circumstances. A landowner should be given some measure of security before undertaking expensive construction. See Pitman v. Medford, 312 Mass. 618, 619 (1942).

Here, Leahy testified that he relied on the Morley case in buying the lot. If the plaintiffs are permitted to reopen

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the previously litigated questions because they were not parties to the earlier action, what is to prevent a second or a third action against Leahy by other neighbors [Note 19] who were not parties to or given notice [Note 20] of this action? [Note 21] The Massachusetts rule that adjacent landowners, with respect to zoning laws, can only enforce the public right by an action in the nature of mandamus against their public officials, [Note 22] gives such owners only limited interests. A salutary corollary to that rule is that, in those circumstances where the public right has been litigated and the public officials are bound by the judgment, the neighbors and other citizens are also bound.

Judgment affirmed.