Plaintiffs filed their verified Complaint on June 25, 2012, pursuant to G.L. c. 40A § 7, G.L. c. 231A § 1, and G.L. c. 240 § 14A, seeking to preliminary and permanently enjoin Defendants Stephen Pitrowski ("Pitrowski"), Scott Cusick ("Cusick") and Pitsick LLC ("Pitsick", and together with Pitrowski and Cusick, the "Private Defendants") from continuing construction on land located on Goddard Street in Newton Highlands, Massachusetts. Together with their Complaint, Plaintiffs filed, ex parte, a Motion for Preliminary Injunction and an Application for a Temporary Restraining Order, a supporting memorandum, and Affidavit of George E. Mansfield. [Note 1] This court denied both the ex parte Motion for Preliminary Injunction and the application for Temporary Restraining Order. On July 10, 2012, the Private Defendants filed a Motion to Dismiss Complaint and Opposition to Motion for Preliminary Injunction, together with supporting memorandum, Affidavit of Defendant Scott Cusick, and a Motion to Strike Affidavit of George E. Mansfield. On July 20, 2012 Plaintiffs filed an Opposition to Motion to Dismiss Complaint (and Other Matters).
On July 30, 2012, a status conference was held where this court discussed jurisdictional issues in this case. On August 9, 2012, Plaintiffs filed their First Amended Complaint adding a count pursuant to G.L. c. 249 § 5, seeking an action in the nature of mandumus to order the Commissioner of the Inspectional Services Department of the City of Newton ("ISD"), John D. Lojek ("Lojek"), to act.
On August 13, 2012, Plaintiffs filed an Amended Motion for Preliminary Injunction requesting additional injunctive relief, together with a supporting memorandum. On August 28, 2012, the parties filed an agreed Motion For Leave to Complete Work to Secure Premises from Damage (the "Stipulation"), which was allowed by this court. On September 20, 2012, Defendants City of Newton (the "City") and Lojek filed an Answer and an Opposition to Plaintiffs' Amended Motion for a Preliminary Injunction, together with supporting memorandum. On September 22, 2012, the Private Defendants filed a Supplemental Brief in Support of their Motion to Dismiss Complaint and Opposition to Plaintiffs' Motion for Preliminary Injunction.
On September 25, 2012, a hearing was held on the motion for preliminary injunction, and the matter was taken under advisement. On September 27, 2012, Plaintiffs submitted an affidavit of plaintiff Paul M. Crowley ("Crowley"). On October 9, 2012, this court issued an order denying Plaintiffs' Motion for Preliminary Injunction (the "P.I. Order") on the basis that it had no jurisdiction to hear the motion. A status conference was held on Friday, October 25, 2012, to determine how to proceed in this matter. At that time, the court and the parties agreed to proceed on the issue of mandamus. Pursuant to an Order dated October 26, 2012, the City was given until November 8, 2012, to file a supplementary memorandum on the issue of mandamus, and both the Private Defendants and Plaintiffs were given until November 23, 2012, to reply. On October 30, 2012, the City submitted a letter to the court indicating that it did not intend to file a supplemental memorandum. On Friday, November 23, 2012, Plaintiffs filed Plaintiffs' Supplemental Memorandum Concerning Mandamus. [Note 2] Thereafter, on Friday, November 23, 2012, the matter was taken under advisement.
"A civil action to obtain relief formerly available by writ of mandamus may be brought ... if the matter ... arises under or involves the subdivision control law, the zoning act, or municipal zoning, or subdivision ordinances, by-laws or regulations, in the land court." G.L. c. 249, § 5. "Mandamus properly lies to compel a public official charged by statute with a duty to act ... to perform that duty if he has failed or refused to do so or has done so in manner contrary to statutory authority." Lynch v. Police Comm'r, 43 Mass. App. Ct. 107 , 109 (1997).
I find that the following facts are not in dispute:
1. By deed dated January 3, 2011, and recorded with the Middlesex South Registry of Deeds ("the Registry") at Book 56212, Page 297, Janet Dailey and Joan Arsenault conveyed three adjacent lots (Lot 109, Lot 110, and Lot 111) to Pitrowski and Cusick.
2. By deed dated January 30, 2012, and recorded with the Registry at Book 58409, Page 70, Pitrowski and Cusick conveyed Lot 109 and Lot 111 to Pitsick. Pitrowski and Cusick are the sole managers of Pitsick.
3. By deed dated January 30, 2012 and recorded with the Registry at Book 58409, Page 132, Pitrowski and Cusick conveyed Lot 110 to 22 Goddard LLC ("Goddard"). Pitrowski and Cusick are the sole managers of Goddard.
4. Lot 109, Lot 110, and Lot 111 each contain 5,000 square feet and have 50 feet of frontage on Goddard Street in Newton.
5. There is a single-family residence on Lot 110 and a garage that straddles Lot 110 and Lot 111. Lot 109 is a vacant lot with no structures thereon.
6. Lot 109, Lot 110, and Lot 111 are located within the SR-3 zoning district. For lots created before 1953, the Newton Zoning Ordinance (the "Ordinance") requires that each lot within SR-3 be comprised of 7,000 square feet and have 70 feet of frontage. For lots created after 1953, the Ordinance requires 10,000 square feet and 80 feet of frontage.
7. Crowley is the owner of property adjacent to and abutting Lot 111.
8. In late October or early November of 2011, Cusick had several conversations with Crowley regarding Cusick's plans to build a house on Lot 111 and a house on Lot 109.
9. On November 3 and November 4, 2011, Crowley and Cusick e-mailed one another, respectively. These e-mails indicate that Crowley wished to see either a survey and/or building plans prepared by or on Cusick's behalf. At some point, Cusick personally delivered to Crowley plans to build a house on Lot 111.
10. On December 8, 2011 ISD issued Building Permit number 11100408 to Pitrowski to build a single family home on Lot 109 (the "Lot 109 Permit").
11. On December 12, 2011, ISD issued Building Permit number 11100409 to Pitrowski to build a single family home on Lot 111 (the "Lot 111 Permit", and together with the Lot 109 Permit, the "Permits").
12. Neither the Lot 109 Permit nor the Lot 111 Permit were appealed to the City of Newton Zoning Board of Appeals (the "ZBA") within thirty days from their respective issuance.
13. On December 22, 2011 Judge Grossman of the Land Court issued a Decision in Mauri v. Zoning Board of the City of Newton, 19 LCR 626 (hereafter, "Mauri"), which all parties recognize is relevant to this case.
14. Excavation and site work on Lot 109 and Lot 111 commenced on or about January 10, 2012 and January 18, 2012, respectively.
15. On January 24, 2012, counsel for Plaintiffs sent a letter to Lojek, requesting that Lojek enforce the Ordinance with respect to Lot 109 and Lot 111 (the "Enforcement Letter").
16. The Enforcement Letter alleges that the Lot 109 Permit and the Lot 111 Permit were not issued in conformity with the Ordinance. Specifically, the Enforcement Letter alleges that Lot 109 and Lot 111 are not comprised of the requisite square footage and do not contain sufficient frontage to be buildable lots. Moreover, the Enforcement Letter alleges that Lot 109 and Lot 111 are subject to common ownership with Lot 110, thus the three lots have merged into one lot.
17. Counsel for Plaintiffs sent subsequent letters to Lojek seeking enforcement of the Ordinance for the same reasons as stated above. These subsequent letters were sent to Lojek on March 23, 2012; May 9, 2012; and June 14, 2012. [Note 3]
18. Lojek has not responded to the Enforcement Letter nor has he responded to any subsequent letters sent to him by counsel for Plaintiffs.
19. Plaintiffs have not appealed to the ZBA the issuance of the Lot 109 Permit, the Lot 111 Permit, or Lojek's failure to respond to the Enforcement Letter.
20. Construction activity ceased on both Lot 109 and Lot 111 in late January or early February of 2012 after the foundations had been completed.
21. Construction activity on Lot 109 resumed on or about June 14, 2012. As of August 28, 2012, any additional construction has been pursuant to the Stipulation.
Pursuant to the P.I. Order, this court has determined that it does not have jurisdiction over Plaintiffs' appeal pursuant to G.L. c. 40A, § 7 because Plaintiffs failed to exhaust all administrative remedies. [Note 4] Although this court did not rule on the issue of mandamus in the P.I. Order, all parties briefed that issue in their respective memoranda relating to the Motion for Preliminary Injunction. Pursuant to the discussion at the status conference on October 25, 2012, the issue of mandamus is now ripe for adjudication.
Plaintiffs have amended their Complaint (and their motion for preliminary injunction) to add a count for an action in the nature of mandamus pursuant to G.L. c. 249, § 5, seeking an order of this court requiring Lojek to either revoke the Permits or to respond in writing to the Enforcement Letter. Defendants argue [Note 5] that mandamus is inappropriate here because Plaintiffs have an adequate remedy at law and because Plaintiffs unreasonably delayed seeking mandamus. Plaintiffs maintain that they have no other remedy other than to seek mandamus. I shall address these arguments in turn.
Mandamus will not lie where there is an adequate remedy at law. Gallivan v. Zoning Board of Appeals of Wellesley, 71 Mass. App. Ct. 850 , 856 (2008). A writ of mandamus being discretionary, "the remedy is barred if the petitioner unreasonably neglected to enforce his right." Hill v. Mayor of the City of Boston, 193 Mass. 569 , 569 (1907). The right to seek enforcement of the zoning law by an action in the nature of mandamus has been preserved subsequent to the enactment of G.L. c. 40A. That right, however, "must be exercised within the administrative structure and right of subsequent judicial review prescribed by G.L. c. 40A." Green v. Board of Appeals of Provincetown, 404 Mass. 571 , 585 (1989), citing Brady v. Board of Appeals of Westport, 348 Mass. 515 , 519 (1965).
[W]ith the enactment of the new Zoning Act, the Brady ... right to mandamus as a remedy for zoning violations became a right to request the officer charged with enforcing local zoning to enforce the by-law under G. L. c. 40A, § 7, and, if the requesting party is aggrieved by the inspector's decision, a right to seek administrative relief from the board under G. L. c. 40A, §§ 8 and 15, and, after exhausting administrative remedies, a right to obtain judicial review pursuant to G. L. c. 40A, § 17. Green, supra, at 574, quoting Vokes v. Lovell, Inc., 18 Mass. App. Ct. 471 , 482-483 (1984).
A. Extent of Mandamus
As stated in Green, the right to mandamus must be exercised within the statutory framework for the appeal of a municipal zoning decision. The right of mandamus does not include the right to revocation of the Permits, and this court has no power to order Lojek to revoke the Permits. Such a remedy would be in contravention of the comprehensive zoning appeals process set forth in G.L. c. 40A. Without a response to the Enforcement Letter and an appeal thereof to the ZBA, this court lacks the power to specifically order Lojek to revoke the Permits. After the enactment of G.L. c. 40A, the right to mandamus is merely the right to obtain judicial relief ordering a zoning officer to respond to a zoning enforcement request.
B. Lack of Adequate Remedies at Law:
i. Direct Appeal of the Permits to the ZBA:
As articulated in the P.I. Order, Plaintiffs did not fail to exhaust their administrative remedies by failing to appeal the Lot 109 Permit and the Lot 111 Permit within thirty days of their issuance. See G.L. c. 40A, §§ 8, 15 (person aggrieved, with notice that permits have issued, must appeal issuance of building permits to board of appeals within thirty days). For the reasons stated in the P.I. Order, it is clear that Plaintiffs had no notice that the Permits had issued until excavation began on the respective lots, more than thirty days after each permit had been issued. [Note 6] As such, I discredit the argument that Plaintiffs failed to exhaust their administrative remedies by not appealing the issuance of the Permits to the ZBA within thirty days of their respective issuance.
Based on the foregoing, I find that Plaintiffs did not have an adequate remedy at law to appeal the issuance of the Permits to the ZBA.
ii. Lack of Response to Enforcement Letter:
Plaintiffs have no adequate remedy at law because Lojek and the City are depriving Plaintiffs of the administrative appeals process pursuant to G.L. c. 40A, §§ 7, 8, and 15. Lojek has continuously refused to respond to the Enforcement Letter notwithstanding G.L. c. 40A, § 7, which states that the "[the zoning officer] shall notify [Plaintiffs], in writing...of any action or refusal to act..." (emphasis supplied). Accordingly, responding to a zoning enforcement request, i.e. the Enforcement Letter, is not a discretionary act; Lojek has been given a statutory mandate to act.
The ZBA lacked jurisdiction to hear an appeal of Lojek's failure to respond to the Enforcement Letter. See Elio v. Zoning Bd. of Barnstable, 55 Mass. App. Ct. 424 , 439-430 (2002); Vokes, supra, at 477. Even though the ZBA would have lacked jurisdiction to hear such an appeal, Plaintiffs could have appealed Lojek's lack of response directly to the ZBA and hoped that no party raised the jurisdictional defect to the ZBA. Hogan v. Hayes, 19 Mass. App. Ct. 399 , 402-403 (1985). It is quite likely, however, that both the City and the Private Defendants would have objected to such an appeal to the ZBA on jurisdictional grounds.
Based on the foregoing, I find that Plaintiffs did not have an adequate remedy at law to appeal Lojek's failure to respond to the Enforcement Letter to the ZBA.
B. Unreasonable Delay:
Contrary to Defendants' contentions, Plaintiffs have not unreasonably delayed bringing this action for mandamus. As late as June, 2012, Plaintiffs sent letters to Lojek, following up on the Enforcement Letter, seeking enforcement of the Ordinance. Plaintiffs proceeded in good faith to appeal the Permits via the administrative process. Lojek has continued to refuse to perform his statutory duty. Plaintiffs are left with no choice but to seek relief in the nature of mandamus after several attempts to proceed via the administrative process. Accordingly, I find that Plaintiffs have not unreasonably delayed in bringing an action in the nature of mandamus pursuant to G.L. c. 249, § 5.
Based on the foregoing, I find that Plaintiffs are entitled to relief in the nature of mandamus pursuant to G.L. c. 249, § 5, with respect to the failure by Lojek to provide a response to the Enforcement Letter and subsequent requests for enforcement of the Ordinance with respect to the Permits. Accordingly, Lojek is hereby ordered and directed, pursuant to G.L. c. 40A, § 7, to respond to the Enforcement Letter and subsequent requests for enforcement with respect to the Permits. Such response by Lojek shall be forthcoming in writing and sent by certified mail to counsel for Plaintiffs within fourteen (14) days of the date of this Decision and corresponding Judgment. This court shall retain jurisdiction over this action and any ensuing appeals from a decision by the ZBA.
Judgment to enter accordingly.
[Note 1] George E. Mansfield is a former member of the Zoning and Planning Committee of the Board of Alderman in the City of Newton.
[Note 2] The Private Defendants did not file a supplemental or reply memorandum regarding mandamus.
[Note 3] The Enforcement Letter and the subsequent letters sent to Lojek were also sent to Cusick and Pitrowksi.
[Note 4] This court also determined that the Motion for Preliminary Injunction was not ripe pursuant to G.L. c. 240, § 14A and G.L. c. 231A.
[Note 5] The Private Defendants maintain that they are not subject to mandamus because the remedy of mandamus cannot apply against private actors. In the case at bar, Plaintiffs only seek mandamus against Lojek.
[Note 6] The Lot 109 Permit and the Lot 11 Permit were issued on December 8, 2011, and December 12, 2011, respectively. Excavation began on Lot 109 and Lot 111 on or about January 10, 2012 and January 18, 2012, respectively. Accordingly excavation on the respective lots began thirty days after the issuance of the respective permits. As discussed in the P.I. Order, excavation on Lot 109 did not give constructive notice that the Lot 111 Permit had been issued.