JOSEPH SCHLAGER, et al. v. CITY OF BOSTON, et al.

This cause came on to be heard on cross-motions for summary judgment. The complaint in this case was brought seeking, in part, a declaration that Article 27C of the Boston Zoning Code ("IPOD") did not apply to the proposed change of use and improvements contemplated by an application for a "building permit" submitted by one of the plaintiffs to the City of Boston, Inspectional Services Department. [Note 1] One of the plaintiffs had been granted a "building permit" to change the use of their structure and to install a spray paint booth, however, when he subsequently applied for an occupancy permit, he was denied said permit and the original building permit was revoked.

The complaint requested a preliminary injunction to maintain the status quo pending a final determination on the merits. The Court held a hearing thereon, and subsequently issued a preliminary injunction allowing the plaintiffs the right to use the premises in accordance with the recently revoked permit. The defendants filed a motion to dissolve the injunction, which was denied after a hearing. The plaintiffs subsequently moved for summary judgment and the defendants filed a cross-motion for summary judgment. The parties filed a stipulation of facts and a hearing was held on the cross-motions for summary judgment.

After reviewing all matters entitled to consideration on a motion for summary judgment, I find the following to be the undisputed material facts:

1. Plaintiffs, Joseph and Doris Schlager are record owners of the property at 62R Hilltop Street, Dorchester, Massachusetts and the plaintiff James Schlager, their son, (hereinafter "Schlager") operates an auto repair, painting and towing service from that premises.

2. On November 14, 1988, James Schlager filed an application with Inspectional Services Department of the City of Boston ("ISD") for a "building permit" which would allow a change of use or occupancy of the locus from "boat storage" to "repair garage, spray booth and towing" as well as "accessory parking of vehicles awaiting repairs," and certain improvements associated therewith. The plaintiffs' application provided that those improvements would cost approximately $20,000.00. Although it is not clear from the record what the proposed improvements were in detail, it is clear that they included the installation of a spray booth and that they did not include any exterior improvements. [Note 2]

3. The parties stipulated and it is an undisputed fact that the application called for no exterior construction work of any kind or nature. It was further stipulated and undisputed that the application in no way involved permission to erect, extend, enlarge, or substantially rehabilitate a building or structure having a gross floor area in excess of 1,000 square feet.

4. The locus is situated within an I-2 Zone and is located within the boundaries of the Harbor Park Interim Planning Overlay District Study Area ("Harborpark IPOD Study Area" ) in the Neponset River area. The building permit application incorrectly indicated that the locus was situated in the M-1 zone of the IPOD.

5. On December 16, 1988, ISD approved the application; and on December 19, 1988, ISD accordingly issued a building permit to Schlager allowing him to proceed with the change of use as requested in the application.

6. On December 28, 1988, relying on the issuance of the building permit, the plaintiffs Joseph and Doris Schlager purchased the property in consideration of an exchange of real estate and $275,000.00.

7. James Schlager completed the installation of the spray booth in accordance with the permit and applied to ISD for a certificate of occupancy.

8. ISD refused to issue the certificate of occupancy to Schlager.

9. On February 22, 1989, Thomas J. McNicholas, the Acting Commissioner for the ISD, sent Schlager a written revocation of'the permit. The revocation stated that, "I have reviewed the procedures under which this permit was issued and have concluded that it violates The Boston Redevelopment Authority's IPOD designation."

10. Section 27C-5 of the IPOD, entitled "Applicability", provides as follows:

Unless otherwise exempt pursuant to this section, or Section 27C-8, 27C-9, or 27C-10, any Applicant seeking a building permit for exterior construction or alteration or a change of use permit for any Proposed Project within the Harborpark IPOD Study Area shall be subject to the requirements of this article if the Applicant seeks to erect a building or structure having a gross floor area in excess of one thousand (1,000) square feet; to enlarge or extend a building or structure so as to increase its gross floor area by more than one thousand (1,000) square feet; or to Substantially Rehabilitate a building or structure having, or to have after rehabilitation, a gross floor area of more than one thousand square feet (1,000) square feet (sic.). The following Proposed Projects, however, shall be exempt from such requirements.

1. Proposed Projects for Residential Uses for four or fewer dwelling units.

2. Proposed Projects for which a Planned Development Area master plan or development plan has been approved by the Zoning Commission.

3. Proposed Projects or parcels which are the subject of an executed land disposition agreement with the Boston Redevelopment Authority or the City of Boston as of the effective date of this article.

11. Section 27C-11 of the IPOD, entitled "Interim Use Controls", provides, in pertinent part, as follows: "Proposed Projects within Harborpark IPOD Study Area shall be subject to the interim use controls set forth in Table A of this section." The portion of § 27C-11 which was not quoted above consists primarily of "Table A". Table A is a listing of various zones in the Harbor Park IPOD Study Area and the uses which are, or are not, exempted from the Interim Planning Process.

12. The parties stipulated and it is an undisputed fact that the uses contemplated by Schlager's application may be conducted as of right in the I-2 zone, with the exception of the IPOD requirement.

The main issue before this court is whether the change of use and the improvements proposed by Schlager's application bring his application under the requirements of the IPOD, or whether the application is exempted from the requirements of the IPOD. In reviewing the undisputed material facts related to that issue, I rule that the plaintiffs are entitled to relief on their motion for summary judgment, as set out hereinafter. Community National Bank v. Dawes, 369 Mass. 550 , 553 (1976).

The locus is situated within the boundaries of the Harborpark IPOD Study Area, and accordingly it is governed by the IPOD regulations. Section 27C-5 of the IPOD governs the applicability of those regulations for proposed projects within the Harborpark IPOD Study Area. The defendants contend that § 27C-11, entitled "Interim Use Controls", also governs the applicability of the IPOD to the plaintiffs' proposed project. In reviewing that section in conjunction with the rest of the IPOD, I rule that the only consistent and harmonious construction of § 27C-11 is that it is supplementary to § 27C-5. I therefore construe § 27C-11, in pertinent part, as only applying when and if a proposed project is not exempted from the requirements of the IPOD by § 27C-5.

Section 27C-5 is entitled "Applicability", and I construe that section, in pertinent part, as providing that an applicant seeking a building permit for a change of use permit in connection with a proposed project within the Harborpark IPOD Study Area shall be subject to the requirements of the IPOD if the applicant seeks to erect, enlarge, extend or substantially rehabilitate a building or structure which after such construction activity will result in a building having a gross floor area in excess of 1,000 square feet. It is undisputed that Schlager's application did not contemplate any such work, and therefore, under the terms of § 27C-5, I rule that the requirements of the IPOD do not apply to the project contemplated by Schlager's application.

The plaintiffs have also requested a declaration that their change of use is allowable as of right under the Boston Zoning Code. It is undisputed that the uses contemplated by Schlager's application may be conducted as of right in the I-2 zone, and therefore, I rule that the uses contemplated by said application is allowable as of right in that zone.

The plaintiffs have also requested injunctive reief in the form of an order directing the ISD to issue an occupancy permit to Schlager. Because there may be other grounds upon which the ISD might refuse to issue an occupancy permit for the plaintiffs' building, I decline to issue an order as requested. Instead, I shall issue an order that, should any of the plaintiffs reapply for a building permit or occupancy permit to conduct the same work and change of use as set out in Schlager's original application, then the ISD shall not refuse or decline to issue a building permit or occupancy permit on the grounds that the contemplated use may not be conducted as of right, nor based upon any purported violation of, or noncompliance with, the IPOD regulations.

Judgment to issue accordingly.