This is one of a series of cases involving a dispute between the plaintiff Joseph Bylinski (Bylinski) and his abutter, the defendant Guaranteed Builders & Developers, Inc. (Guaranteed), over Guaranteeds construction of a house on an undersized lot on Wallum Lake in Douglas, Massachusetts. The genesis of this action was the building permit that Guaranteed obtained from the defendant Adelle Reynolds, Building Commissioner of the Town of Douglas (Commissioner), to construct the house. Bylinski appealed the building permit, and after the Towns Zoning Board of Appeals (ZBA) failed to act on the appeal, thereby resulting in a constructive grant of Bylinskis appeal, brought this action in mandamus seeking a judgment compelling the Commissioner to order the removal of the house. While this case was pending, Guaranteed appealed the constructive approval to the Superior Court and at roughly the same time sought a variance from the ZBA. The Superior Court entered judgment against Guaranteed, upholding the constructive grant of Bylinskis appeal, and Guaranteed dismissed its appeal of that judgment. The ZBA denied Guaranteeds variance application, and Guaranteed appealed to this court. Bylinski intervened in that action, and his motion for summary judgment was allowed on April 12, 2013. Guaranteed appealed, and this courts judgment was affirmed in a memorandum and order pursuant to Appeals Court Rule 1:28 on February 21, 2014.
After the April 12, 2013 summary judgment order (but before the appeal to the Appeals Court), Bylinski moved for summary judgment in this action. Now that the Appeals Court has issued its order, finally establishing that Guaranteed had no right to construct the house, Bylinskis summary judgment motion is ripe for decision. Because (a) the Commissioners obligation to enforce the zoning bylaw is discretionary, (b) Bylinski has an alternative administrative remedy, and (c) justice does not require mandamus relief, Bylinski is not entitled to an order in the nature of mandamus. The motion for summary judgment is denied, and judgment will enter dismissing this action without prejudice.
Bylinski filed his complaint in this action on August 21, 2009. Guaranteed filed its answer on September 8, 2009 and the Commissioner filed her answer on October 15, 2009. The case management conference was held on October 26, 2009. Bylinskis motion to amend the complaint was heard and allowed, and the amended complaint filed, on May 5, 2010. After the retirement of Judge Trombly, this case was assigned to me on January 25, 2012. Bylinskis motion to further amend the complaint was allowed on February 10, 2012, and he filed his second amended complaint on February 14, 2012. Guaranteed filed its answer to the second amended complaint on March 22, 2012.
On June 10, 2013, Bylinski filed Joseph Bylinskis Motion for Summary Judgment, the Statement of Material Facts in Support of Joseph Bylinskis Motion for Summary Judgment, the Memorandum in Support of Joseph Bylinskis Motion for Summary Judgment, and the Appendix in Support of Joseph Bylinskis Motion for Summary Judgment. The Commissioner filed Defendants Partial Opposition to Plaintiffs Motion for Summary Judgment on June 19, 2013. Guaranteed filed Defendant, Guaranteed Builders & Developers, Inc., Opposition to Plaintiffs Motion for Summary Judgment and Appendix in Support of Guaranteed filed Defendant, Guaranteed Builders & Developers, Inc., Opposition to Plaintiffs Motion for Summary Judgment on July 23, 2013. I heard argument on Bylinskis Motion for Summary Judgment on August 1, 2013 and took it under advisement. Bylinskis Motion to Supplement the Record was allowed on March 20, 2014, and a letter from counsel for Guaranteed was filed on April 2, 2014. This Decision follows.
I find that the following facts are undisputed.
1. Bylinski owns the property known as and numbered 105 Shore Road, Douglas, Massachusetts.
2. Adelle Reynolds is the Building Commissioner of the Town of Douglas, with a principal place of business at 29 Depot Street, Douglas, Massachusetts.
3. Guaranteed is a Massachusetts business corporation with a principal place of business at 14 West Street, Douglas, Massachusetts.
4. On July 8, 2008, the Commissioner issued a building permit to Guaranteed for construction of a single family home on property known as and numbered 103 Shore Road, Douglas, Massachusetts (the Property).
5. The Property is adjacent to the property owned by Bylinski at 105 Shore Road, Douglas, Massachusetts.
6. On or about February 7, 2009, Guaranteed began excavation at 103 Shore Road.
7. On February 9, 2009, Mr. Bylinski requested that the Commissioner revoke Guaranteeds building permit.
8. On or about February 19, 2009, the Commissioner responded to Mr. Bylinskis request and refused to revoke the building permit.
9. On February 25, 2009, Mr. Bylinski appealed the Commissioners refusal to the ZBA.
10. The ZBA failed to decide the appeal within 100 days, or by June 5, 2009, thereby granting Bylinskis appeal pursuant to G.L. c. 40A § 15. The result was that Guaranteeds building permit was revoked. Bylinski filed notice of the grant of his appeal and the revocation of the building permit with the Douglas Town Clerk on June 9, 2009.
11. On or about July 20, 2009, Guaranteed obtained a Permit to Perform Electrical Work at the Property.
12. On August 21, 2009, Bylinski filed a complaint in this court requesting relief in the nature of mandamus instructing the Commissioner to enforce the Town of Douglas Zoning By-law (By-law).
13. On or about September 3, 2009, Guaranteed appealed the revocation of its building permit.
14. On January 27, 2012, the Superior Court (Tucker, J.) affirmed the constructive revocation of Guaranteeds building permit; judgment in that action was entered on February 2, 2012.
15. Guaranteed completed its construction of the single family home on the Property at some point before the Superior Court issued its judgment.
16. On February 15, 2012, Guaranteed applied to the ZBA for a variance pursuant to G.L. c. 40A, § 10.
17. On June 19, 2012, the ZBA denied Guaranteeds application for a variance.
18. On July 5, 2012, Guaranteed filed a complaint in this court appealing the denial of its variance request pursuant to G.L. c. 40A, § 17, docketed as Miscellaneous Case No. 467304 (the variance appeal).
19. On August 2, 2012, this court (Foster, J.) allowed the Motion of Joseph Bylinski to Intervene in the variance appeal.
20. By a decision dated April 12, 2013, this court (Foster, J.) allowed Bylinskis Motion for Summary Judgment and dismissed the variance appeal with prejudice. Guaranteed Builders, Inc. v. Zoning Bd. of Appeals of the Town of Douglas, 21 LCR 203 (2013), affd, 85 Mass. App. Ct. 1101 (2014).
21. On or about May 7, 2013, Guaranteed appealed this courts judgment in the variance appeal to the Appeals Court.
22. On June 10, 2013, Bylinski filed a Motion for Summary Judgment in this action, namely, the mandamus action he had instituted on August 21, 2009.
23. On February 21, 2014, the Appeals Court, in a Memorandum and Order Pursuant to Appeals Court Rule 1:28, affirmed this courts judgment dismissing the variance appeal. Guaranteed Builders, Inc. v. Bylinski, 85 Mass. App. Ct. 1101 (2014).
Summary judgment may be entered if the pleadings, depositions, answers to interrogatories, and responses to requests for admission . . . together with the affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Mass. R. Civ. P. 56(c). In viewing the factual record presented as part of the motion, I am to draw all logically permissible inferences from the facts in favor of the non-moving party. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). Summary judgment is appropriate when, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law. Regis Coll. v. Town of Weston, 462 Mass. 280 , 284 (2012), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991). When appropriate, a court may render summary judgment against the movant. Mass. R. Civ. P. 56(c).
In his second amended complaint, Bylinski seeks a judgment permanently enjoining Guaranteed from constructing the home on the Property, ordering the removal of the home, and ordering the Commissioner to take such action as may reasonably be required to compel removal of the home. In his Motion for Summary Judgment, Bylinski makes clear that he is seeking this relief by way of an action in the nature of mandamus. G.L. c. 249, § 5. Relief in the nature of mandamus is extraordinary, and is granted in the discretion of the court only where no other relief is available. Forte v. Commonwealth, 429 Mass. 1019 , 1020 (1999), and cases cited. Granting mandamus relief in this action is inappropriate, for three reasons. First, while the Commissioner has a duty to enforce the By-law, the manner of execution of this duty is discretionary. Second, an administrative remedy is still open to Bylinski. Third, declining to grant the relief that Bylinski requests will not result in a failure of justice. Coach & Six Restaurant, Inc. v. Public Works Commn, 363 Mass. 643 , 644 (1973). Consequently, summary judgment will be rendered in favor of the defendants.
The Commissioners Duty is Discretionary
Relief in the nature of mandamus is not appropriate to compel performance of discretionary acts. Murray v. Commonwealth, 447 Mass. 1010 , 1010 (2006), citing Lutheran Serv. Assn of New England, Inc. v. Metropolitan Dist. Commn, 397 Mass. 341 , 344 (1986). Bylinski cites § 9.1.2 of the By-law for the proposition that the Commissioner has a non-discretionary duty to ensure that the Property complies with applicable zoning requirements. Section 9.1.2 states, in full:
The Building Inspector shall institute and take any and all such action as may be necessary to enforce full compliance with any and all of the provisions of this By-Law and of permits and variances issued thereunder, including notification of noncompliance and request for legal action through the Selectmen to Town Counsel.
By-law § 9.1.2. Bylinski is correct in arguing that the shall language of § 9.1.2 imposes a duty on the Commissioner. But § 9.1.2 only compels the Commissioner to take action necessary to enforce compliance with applicable zoning bylaws; it does not define the manner of the action. It remains within her discretion to analyze what action in a particular situation may be necessary to enforce compliance and, if a number of potential routes are available, to elect one or more among them. Id. The decision is a discretionary one. See Nason v. Commissioner of Mental Health, 351 Mass. 94 , 96 (1966) (Even if the means exist, whether, when, and how to do this involve the exercise of the Commissioners judgment and discretion.).
Nor is it appropriate to enter a mandamus judgment ordering mere enforcement. In Channel Fish Co. v. Boston Fish Market Corp., 359 Mass. 185 (1971), a number of petitioners sought a writ of mandamus ordering the lessee and lessor of a pier to maintain it in good condition. Id. at 185-186. The court in that case, though noting both the statutory requirement that the lessor, the Massachusetts Port Authority, maintain the pier in good condition and the fact that the pier was not in fact being so maintained, refused to issue the writ. Id. at 185-187. It reasoned in part that an order to maintain the pier in good condition was far too vague to be a foundation for mandamus, worrying both over the the uncertainty in the interpretation of [the] words and the continuous court supervision that enforcement would require. Id. at 187.
This case raises the same concerns. Section 9.1.2 identifies a broad statutory duty of general enforcement, not a legal duty to perform some particular act or acts the performance of which the court can order in definite terms and enforce if necessary. Scudder v. Selectmen of Sandwich, 309 Mass. 373 , 375 (1941). The only possible foundation for a mandamus in this situation is the requirement that the Commissioner enforce full compliance with the By-law; as in Channel Fish, such a foundation is far too vague. Channel Fish Co., 359 Mass. at 187; see Gardner v. Callahan, 347 Mass. 21 , 23 (1964) (refusing to issue writ of mandamus to compel the Massachusetts Turnpike Authority to cooperate with the investigation of the Massachusetts Crime Commission both because of the elasticity of that notion and because of the continuous nature of the parties interactions).
That Guaranteeds building permit has been revoked does not thereby define what specific action the Commissioner must now take, such as the issuance of an enforcement order, the submission of a request to the Town of Douglas Board of Selectmen for the institution of litigation, or some other measure. That decision is left to her sound discretion, and it is not within the scope of this courts authority to make the decision for her.
An Alternative Administrative Remedy Remains Available to Bylinski
Relief in the nature of mandamus is not appropriate where, as here, a statutory method of relief is available. Duncan v. School Comm. of Springfield, 331 Mass. 738 , 741-742 (1954). That statute is G.L. c. 40A, and Massachusetts case law makes clear that when parties wish to force local officials to enforce zoning bylaws, they should make use of the administrative framework outlined in that chapter. While Brady v. Board of Appeals of Westport, 348 Mass. 515 (1965), recognized a common law right to seek enforcement of zoning laws via mandamus relief, see Green v. Board of Appeals of Provincetown, 404 Mass. 571 , 572-574 (1989), this remedy was replaced in 1975 by the Zoning Act, St. 1975, c. 808, § 3. As the Appeals Court stated:
[W]ith the enactment of the new Zoning Act, the Brady right to mandamus as a remedy for zoning violations committed under color of a building permit 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.
Vokes v. Avery W. Lovell, Inc., 18 Mass. App. Ct. 471 , 482-483 (1984); see Green, 404 Mass. at 574 (approvingly quoting the above language while omitting the phrase committed under color of a building permit).
Chapter 40A outlines the steps that Bylinski must take before he may bring his zoning enforcement claim to this court. Under G.L. c. 40A, § 7, Bylinski may request enforcement by the Commissioner of any applicable part of the By-law under which, without a building permit, the Property is currently in violation; if the Commissioner refuses to enforce the By-law, she must notify Bylinski and explain her refusal within fourteen days. Id. Bylinski may then appeal to the ZBA pursuant to G.L. c. 40A, § 8, and then, if necessary, to this court or the Superior Court pursuant to G.L. c. 40A, § 17.
Recourse to this administrative route would not be duplicative of Bylinskis previous legal proceedings. Revocation of a building permit and destruction of nonconforming property constitute distinct demands. While Bylinski may reasonably have assumed that revocation of Guaranteeds permit would have led the Commissioner to secure removal of the structure located on the Property, the Commissioner has not in fact secured its removal. If Bylinski believes the Commissioner is currently in derogation of the performance of her duties, G.L. c. 40A offers him the remedy, in the first instance, to secure her performance.
Mandamus is an extraordinary remedy, invoked sparingly by the court in its discretion. Anzalone v. Administrative Office of the Trial Court, 457 Mass. 647 , 655 (2010). Bylinskis protestation that recourse to a second round of requests would be redundant does not justify resort to extraordinary means in order to circumvent the clearly prescribed method of obtaining relief, even if that method may at times prove circuitous. I am especially hesitant to evade statutory safeguards where the outcome Bylinski seeksdestruction of the structure located on the Propertyis both irreversible and costly; it is precisely in such situations that the statutory safeguards at issue prove important.
Justice Does Not Require Relief in the Nature of Mandamus
It has long been recognized that mandamus is not a matter of right, but of sound judicial discretion, McCarthy v. Street Commrs of the City of Boston, 188 Mass. 338 , 340 (1905), and may not be granted except to prevent a failure of justice in instances where there is no other adequate remedy. Lutheran Serv. Assn of New England, Inc., 397 Mass. at 344; Coach & Six Restaurant, Inc., 363 Mass. at 644. Mandamus relief ordering the destruction of the property would not prevent such a failure, because it is not clear that the Commissioner is in fact refusing to enforce the By-law.
First, as noted, both Bylinski and Guaranteed have sought various administrative remedies. It is understandable that the Commissioner might choose to wait for the outcome of the administrative process, especially absent a written enforcement request from Bylinski pursuant to G.L. c. 40A, § 7, before demolishing a newly-completed structure. And the latest ruling, by the Massachusetts Appeals Court in the context of Guaranteeds application for a variance, was issued less than four months ago.
Further, the Town denied Guaranteeds request for a variance, and the Commissioner asserts that neither she nor the Town actually oppose removal of the building; they only oppose being ordered to compel its removal. Defendants Partial Opposition to Plaintiffs Motion for Summary Judgment, 2.
Thus, it is premature to conclude that the Commissioner has decided against any enforcement. Given todays resolution of this mandamus litigation, the recent resolution of Guaranteeds variance litigation, and Bylinskis forthcoming written enforcement request, should he choose to submit it, enforcement may still occur. I am unconvinced that, under the current circumstances, justice requires judicial intervention in the form of mandamus relief.
Accordingly, Joseph Bylinskis Motion for Summary Judgment is DENIED. Instead, summary judgment in favor of defendants Guaranteed and the Commissioner is entered pursuant to Mass. R. Civ. P. 56(c). In order to avoid any suggestion that the judgment in this action has any preclusive effect on a subsequent request for enforcement, judgment will enter dismissing this action without prejudice.