The above-captioned matters are consolidated cases involving the failure of City of Revere officials to grant certain permits for a structure ("the Structure") located at 320 Charger Street in Revere ("Locus").
Miscellaneous Case No. 142167 was brought in two counts, one under G.L. c.240, §14A, seeking declaratory and injunctive relief in connection with the failure of the Revere Building Inspector ("the Building Inspector") to issue an occupancy permit for the Structure, and the other under G.L. c. 231A and G.L. c. 249, §§4 and 5, seeking declaratory and injunctive relief in connection with an existing fuel storage permit.
Miscellaneous Case No. 148661 is an appeal from the decision of the Revere Zoning Board of Appeals ("the Board") purporting to revoke a Certificate of Use and Occupancy issued to Plaintiffs by the Building Inspector pursuant to an order made by this court on March 13, 1990, in Miscellaneous Case No. 142167. Plaintiffs further seek an order issuing a Certificate of Occupancy and a declaration that the Trustees and their tenants may, for all intended purposes, occupy the Structure.
Superior Court Case No. 89-5776 is a complaint in the nature of certiorari seeking a review of the proceedings whereby the Revere City Council denied Plaintiff a fuel storage license for Locus and an amendment or modification of the council's decision. Plaintiff further seeks the issuance of a permit to keep or store fuel on Locus under G.L., c.148, §13. By Order of Assignment dated May 10, 1990, Judge Robert V. Cauchon was appointed to sit as a Superior Court Judge for the purpose of hearing and determining the disposition of the above-mentioned Superior Court case.
On March 22, 1990, Richard K. Bendetson, Trustee of Exeter House Realty Trust filed a Motion for Permissive Intervention in Miscellaneous Case No. 142167, which motion was allowed on April 4, 1990. On March 28, 1990, Richard K. Bendetson, Trustee of Dartmouth House Condominium filed a Motion for Permissive Intervention in Miscellaneous Case No. 142167, which motion was allowed on April 4, 1990.
The parties filed a Stipulation of Uncontested Facts and submitted post-trial memoranda.
This case was tried on July 19 and November 14, 1990, and on April 2, 1991, the court took a view of the Structure and general area in which it is located. The trial proceedings were transcribed by a court-appointed reporter. Five witnesses testified and twenty three exhibits were introduced into evidence. The exhibits are incorporated herein by reference for the purpose of any appeal.
After considering the evidence, testimony and pertinent documents, I make the following findings:
1. R&S Realty Trust ("the Trust") is a Massachusetts trust validy created and existing under the laws of Massachusetts and is the owner of Locus and the Structure. Plaintiffs Ralph and Stephen Caruso ("the Trustees") have a business at Locus and are trustees of the Trust.
2. Laidlaw Waste Systems ("Laidlaw") is a refuse collection company and as mentioned above is Plaintiffs' tenant at Locus.
3. At all times relevant hereto Stanley Ferragamo has been the Building Inspector and Zoning Enforcement Officer for the City of Revere and Cosmo DeLiegro has been the Deputy Building Inspector for the city of Revere.
4. Richard K. Bendetson is the trustee of Exeter House Realty Trust ("Exeter") and of the Dartmouth House Condominium Trust ("Dartmouth"). Exeter owns a 91 unit, four story apartment building at 315 Charger Street which is across the street from Locus. Dartmouth owns an 87 unit condominium at 175 Ward Street in the vicinity of Locus.
Description of Locus and Use of Structure
5. The structure is composed of a two-story office section and a garage/maintenance section and is of steel frame and masonry construction. The sections are separated by a fire wall and are used as executive offices and for the maintenance and repair of motor vehicles, respectively. The Structure is equipped with an approved automatic fire suppression system as defined in Section 201.0 of the State Building Code ("the Code").
6. The Structure consists of approximately 24,775 square feet in area. The office section consists of approximately 10,575 square feet of which 1,525 is occupied by Caruso Construction, 1,525 will be occupied by Caruso Paving and 7,520 is occupied by Laidlaw. The garage/maintenance section consists of approximately 14,200 square feet and is occupied by Laidlaw. That section has fourteen bays or separate spaces for servicing and maintaining motor vehicles, seven per side, each with its own separate entrance door, however only eleven are presently available for use in truck maintenance.
7. The front, two-story portion of Locus faces Charger Street and screens the rear portion of the structure. Locus is landscaped with shrubs and small evergreen trees, and the rear yard is enclosed by an eight-foot high chain link fence.
8. Locus is in an industrial district under the Zoning Ordinance for the City of Revere ("the Ordinance") (See Exhibit G-3). The industrial district is the least restrictive zoning district in the City of Revere. Both commercial garages and general office uses are allowed as of right in such district.
9. Adjacent to Locus is the Northgate Shopping Center, a major multi-tenanted shopping plaza with tenants including: Purity Supreme Supermarket, Howard Johnsons Motor Lodge, Firestone Tire and Car Care Center, Toys-R-Us, Ames Department Store and Auto Center and approximately twelve other smaller retail outlets. Also in the area across Charger Street are a Mini-storage public warehouse, a health club and in the vicinity is a repair and maintenance facility for the City of Revere motor vehicles. (See Exhibit E-3).
10. On July 19, 1989, the Trust entered into a lease agreement ("the Lease") to lease a portion of Locus to Laidlaw, which also included an agreement to construct the Structure to Laidlaw's specifications (Exhibit I).
11. The Lease required the Trust to complete the Structure and obtain a Certificate of Occupancy, on or before April 1, 1990 and failure to do so excused Laidlaw from its obligation to occupy and make rental payments pursuant to the Lease.
Use and Occupancy Permit
12. On June 7, 1989, the Trust applied to the City of Revere ("Revere") and the Building Inspector, for a building permit to allow them to build the Structure. The permit application ("the Application") specified that the Structure would be a "garage" or "garage and offices" and further stated that it was conforming. A plan was filed with the Application. On June 7, 1989, Revere and the Building Inspector issued the requested permit ("the Permit").
13. Following issuance of the Permit, the Trust constructed the Structure and on December 15, 1989, the Trust applied to Revere and the Building Inspector for a Certificate of Occupancy for the Structure.
14. On or about December 15, 1989, the Trust applied to Revere for a certificate of occupancy and on or about December 19, 1989, the Building Inspector informed the Trust that he was unwilling to issue such certificate. Despite repeated written requests on December 15, 1989, January 17, 1990 and February 2, 1990, and numerous oral requests subsequent to the meeting with the City Planning Director, the Building Inspector refused to issue a Certificate of Occupancy until ordered to do so by this Court. The Building Inspector, however, believed that all provisions of the Code had been met and that an occupancy permit should issue.
15. As mentioned above, on March 13, 1990, this Court ordered defendants to issue a certificate of use and occupancy to Plaintiffs for Locus.
16. On or about July 9, 1990, the Board issued a decision ordering the Building Inspector to revoke the previously Court ordered Certificate of Occupancy and Acceptance, but staying said revocation pending an appeal by Plaintiff in Miscellaneous Case No. 142167.
Fuel Storage Permit
17. On November 23, 1970, the Revere City Council ("the City Council") granted the petition of V&L Realty Trust ("V&L"), the predecessor in title to the Trust, for fuel storage not to exceed 10,000 gallons to be located at Locus and such license was thereafter issued. On December 17, 1973, the City Council granted permission to V&L to increase the flammable fuel storage capacity from 10,000 gallons to 30,000 gallons. From November 23, 1970, to the present date, the Trust, and its predecessors in title have paid annual renewal fees for the fuel license. The Trust currently holds a Registration issued by Revere, pursuant to G.L. c. 148, §13, on March 20, 1990.
18. On or about June 1, 1989, the Trust filed a petition with the City Council requesting a fuel license for the storage of 2,100 gallons of gasoline/diesel fuel which application was denied on September 11, 1989.
19. On June 26, 1989, a public hearing was held regarding Plaintiffs' application for a fuel storage permit. The City Tax Collector submitted a letter to the City council that the Caruso's were allegedly delinquent in paying certain real estate taxes, but the Carusos were not notified of that action as required by G.L. c. 40, §57. On September 11, 1989, the City Council voted to deny the requested fuel storage license on the following grounds:
The applicant failed to present information relative to the payment of real estate taxes and accordingly is not eligible to receive the requested license (see Section 57, Chapter 40 M.G.L.)
Based upon testimony presented at the public meetings the City Council finds that due to the proximity of the applicant's site to nearby residential areas that the proposed truck traffic to and from the site would cause excessive noise and traffic problems.
Based upon testimony that the proposed site would be used to garage solid waste disposal collection vehicles the City Council finds that the location of said vehicles in proximity to the nearby residential area would cause odor, litter and vermin problems for the area.
20. The City Council has asserted that it may not issue a certificate of occupancy for the structure unless and until a second registration and fuel license is issued because the current registration and license cannot be utilized to cover the storage of flammable fuels in the Structure.
21. The Structure is currently being used as follows: The garage/maintenance portion is used for minor repairs of Laidlaw's vehicles. The fenced in black-topped area behind and on the sides of the Structure is used to park Laidlaw's 77 vehicles. The vehicles are off-site during the day, they return approximately between 3:00 p.m. and 4:00 p.m. and leave approximately between 6:00 a.m. and 9:00 a.m. The office portion is used by both Laidlaw and Caruso's. Locus is also being used by Caruso Paving (paving contractor), Caruso Construction (excavation contractor), Fifth Avenue Limousine (limousine service), Budget Fence (fencing contractor), Bumper to Bumper (custom car cleaning) and Tile World (supplier and installer of tile).
Miscellaneous Case No. 142167
The Building Inspector is required to issue an occupancy permit when all provisions of the Code and the Ordinance are complied with. (See 780 C.M.R. 114.1 and §§17.60.020, 17.60.040 and 17.48.139 of the Ordinance). Plaintiffs have the burden of demonstrating an entitlement to a building permit and upon such a showing, the issuance of a permit by this Court is a matter of duty, not discretion, and relief in the form of an order that a permit issue is appropriate. Framingham Clinic, Inc. v. Zoning Board of Appeals of Framingham, 382 Mass. 283 , 297 (1981).
The present uses of Locus as executive offices and a maintenance facility for Laidlaw's vehicles are allowed as of right in an industrial zone under the Ordinance. (See §17.60.040 of the Ordinance). Further the Structure is in compliance with the Code as presently in effect.
There is a dispute over whether the Structure meets the area limitations set forth in Table 501 of the Code. The Structure is 24,775 square feet in area. The parties disagree over whether the Structure is of type 2 construction which has a limitation of 19,950 square feet or type 1 construction which has no such limitation. Section 502.3 of the Code provides a 200% increase in allowable area for buildings, such as the Structure, which contain a fire suppression system, thereby making the Structure conforming to such requirements regardless of construction type.
Defendants argue that the Code prevents an occupancy permit from issuing because Plaintiffs do not have a fuel storage license. Section 119.1 of the Code Provides in part:
The Certificate [of occupancy] shall not be issued until all the work has been completed in accordance with the provisions of the approved permits and of the applicable codes for which a permit is required . . . . (emphasis added)
The granting of a fuel storage license is governed by G.L.c. 148, §13 and not the Code and therefor is not a prerequisite to the granting of a use and occupancy permit. Further, a fuel storage license is only required if more than 500 gallons of diesel fuel is "stored" in the structure and Plaintiffs do not need such a license at this time. [Note 1] Diesel fuel is considered to be "stored" in a structure for purposes of G.L. c. 148, §13, if a vehicle containing said fuel is located within the structure. (See G.L.c. 148, §14). The maintenance facility within the Structure may therefor be used to service a number of trucks without violating G.L. c. 148, §13 so long as the combined fuel capacity of those trucks does not exceed 500 gallons.
Miscellaneous Case No. 148661
In Miscellaneous Case No. 148661, the Court ordered an occupancy permit which the Board subsequently revoked. Plaintiffs then appealed the revocation under G.L. c. 40A, §17. In such an appeal, the Court conducts a de novo review and determines the legal validity of the decision. Needham Pastoral Counseling Center, Inc. v. Board of Appeals of Needham, 29 Mass. App. Ct. 31 (1990). Here, however, the Board lacked jurisdiction to hear the appeal. Appeals of a building inspector's decision regarding the Code may only be brought before either the State Building Code Appeals Board or a local or regional board of appeals. (See Sections 126 et seq. of the Code) There is no board in Revere which qualifies as a local regional board of appeals. The Board has not been authorized by ordinance or by-law to hear such appeals and is given no such authority by G.L. c. 40A.
Further, the only matters which can be appealed to a local or regional board of appeals are "interpretations, orders, requirements, directions or the failure to act under the Building Code by any agency or official of a city charged with enforcement of the [Code]" (Section 126.1 of the Code). The issunce of a permit does not constitute an appealable act under 126.7 of the Code and therefor the Board did not have jurisdiction. Finally, the hearing was procedurally defective in that the appeal was filed on April 11, 1990 and the hearing was not held until May 23, 1990, forty days later (See section 126.6.10 whereby a decision must be issued and filed within 30 days of the hearing and the decision in this case was dated June 29, 1990, 37 days after the hearing and filed July 9, 1990, 47 days after the hearing and not signed by all the members of the Board). Finally, the Board in this case does not have the authority to hear an appeal on a permit issued by order of this Court.
Sup Ct. Case No 89-5776
Superior Court Case No. 89-5776 sought review of the City Council's denial of the fuel storage license. When the denial of a fuel storage license under G.L. c. 148, §13 is reviewed by a court in an action in the nature of certiorari, three questions are posed for the court's consideration. First, whether the proceedings before the municipal body were in accordance with the law, second whether the town body applied relevant criteria to its decision and third is whether the town body's decision is supported by substantial evidence. The Court has allowed parties to supplement the return by way of stipulations. Davidson v. Board of Selectmen of Duxbury, 358 Mass. 64 , 66 (1970); Foster from Gloucester, Inc. v. City Council of Gloucester, 10 Mass. App. Ct. 284 , 285 (1980). The Court may also rely on matters or things observed during a view. Newbury Junior College v. Brookline, 19 Mass. App. Ct. 197 , 202 (1985). Plaintiffs applied for a fuel storage license because the Structure has the capacity to store enough trucks so that conceivably over 500 gallons of diesel could be stored. The primary function of the license required by §13 is the supervision and regulation of a business or land use which, without proper supervision and regulation, might become a menace to public safety by reason of the hazards of fire and explosion. E. A. D. Realty Corp v. Board of Selectmen of Shrewsbury, 6 Mass. App. Ct. 826 , 827 (1978); Chase v. Selectmen of Littleton, 2 Mass. App. Ct. 159 , 160 (1974). Factors related to the general public welfare such as noise and traffic may be and considered by the Board. E. A. D. Realty Corp at 826; Sherman v. Board of Selectmen of Orleans, 355 Mass. 786 (1969); Foster from Gloucester, Inc. at 284 (1980); Kidder v. City Council of Brockton, 329 Mass. 288 (1952); V.S.H Realty, Inc. v. License Board of Worcester, 13 Mass. App. Ct. 586 (1982); Davidson at 64; Johnson Products, Inc. v. City Council of Medford, 353 Mass. 540 (1968).
In the present case, the parties have stipulated that at all relevant times real estate taxes were paid on Locus and the Board failed to present evidence that it met the statutory requirements of G.L. c. 40, §57, necessary to deny a permit on failure to pay such taxes. Further, and inasmuch as the Structure is located in the middle of an industrial district near a number of businesses including a strip mall and the nature of the business carried on and the procedures used therein will not cause sufficient traffic, odor, litter or vermin problems so as to justify the denial of a fuel storage permit. Should such problems arise, the City has adequate remedies to rectify same. Accordingly, I find that the Council's decision is not supported by the evidence and hereby order the issuance of the requested permit.
[Note 1] Plaintiffs presently hold a fuel storage permit from the Captain of the Revere Fire Department which authorizes the storage of up to 500 gallons of diesel fuel in the Structure.