MARY F. BRADY vs. BOARD OF APPEALS OF WESTPORT & others.

WHITTEMORE, J. This appeal in a suit under G. L. c. 40A, Section 21, is from a final decree of the Superior Court that annulled

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a decision of the Westport Zoning Board of Appeals and enjoined the appellants Godfrey and Doris G. Bessette from conducting the business of a marina or boatyard at 498 River Road in Westport. The plaintiff is the owner of adjacent premises on River Road. Only the Bessettes have appeared and answered and we refer to them as the defendants.

1. At the threshold the defendants contend that the issues were not properly before the board or before the Superior Court.

The controversy came to the board on an appeal from the written reply, in the name of the building inspector, to a notice from the plaintiff's attorney dated June 22, 1960, that the defendants were "maintaining a marina and boat yard on Westport River in the rear of said 498 River Road in violation of the Zoning By-laws." The notice asked that the inspector give the matter his immediate attention. The building inspector told the town counsel of the letter and at his request mailed it to him. The building inspector "left [it] up to the Town Counsel" and took no other action. The reply, from the town counsel in the name of the building inspector, informed the plaintiff that "upon investigation, I find that no action is necessary because I believe that there is no violation."

The board's decision of August 1, 1961, was, in effect, that the defendants' marina was a nonconforming use and that the board "at this time" had no power to allow or disallow expansion. The judge in the Superior Court ruled that the building inspector had made a decision that was subject to appeal under G. L. c. 40A, Section 13, and, in effect, that the board had erroneously affirmed it. The judge also ruled that the plaintiff was an aggrieved person.

The defendants contend that the plaintiff should have proceeded by way of a petition for a writ of mandamus to enforce the zoning by-law.

That was the course the plaintiff first adopted. Upon receipt of the reply of the building inspector to her request for action, she brought a petition in the Superior Court for

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a writ of mandamus. After the hearing of that action had begun, the proceeding was dismissed without prejudice, "[c]ounsel . . . [having been] persuaded to go before the board." [Note 1]

The appeal to the board was taken on May 3, 1961. The statute as then written, G. L. c. 40A, Sections 13, 15 and 16, required only that appeals be taken within the reasonable time prescribed by ordinance or by-law or otherwise by rule of the board. [Note 2] There was no by-law provision; no rule of the board was shown; the defendants stipulated that the appeal was taken within a reasonable time and the judge so found.

The enforcement of the zoning laws is authorized by G. L. c. 40A, Section 22, the first paragraph of which provides: "The superior court shall have jurisdiction in equity to enforce the provisions of this chapter, and any ordinances or by-laws adopted thereunder, and may restrain by injunction violations thereof." This statute authorizes a municipality "to enforce the provisions of the zoning ordinances and by-laws," giving to it the power to represent the public and to act "in a governmental capacity, in the promotion of the public interest." Pitman v. Medford, 312 Mass. 618, 621. See O'Brien v. Turner, 255 Mass. 84, 86. Whether an enforcing officer is expressly designated by statute or by the ordinance or by-law, the proceeding in substance is by the municipality and, properly, is brought in its name. Building Commr. of Medford v. C. & H. Co. 319 Mass. 273, 283-284, and cases cited. Building Inspector

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of Wayland v. Ellen M. Gifford Sheltering Home Corp. 344 Mass. 281, 286-287. See Board of Health of Woburn v. Sousa, 338 Mass. 547, 548; Natick v. Massachusetts Dept. of Pub. Welfare, 341 Mass. 618, 619.

If the enforcing officers do not act, a citizen, having no other remedy, may bring a mandamus petition naming the enforcing officers as respondents. Atherton v. Selectmen of Bourne, 337 Mass. 250, 257, and cases cited. Bowes v. Inspector of Bldgs. of Brockton, 347 Mass. 295, 296. In these cases, although it is not necessary to name the municipality as a party, [Note 3] the petition invokes the general right of the citizen to have his municipality enforce the applicable law. Sunderland v. Building Inspector of North Andover, 328 Mass. 638, 640, and cases cited. Kelley v. Board of Health of Peabody, 248 Mass. 165, 169 ("In this [inactive] attitude of the board of health and the inspector of plumbing, any citizen may prefer a complaint to the mayor . . . and upon the failure of such officer to act in the name of the city, may himself proceed by petition for a writ of mandamus").

Citizens who are in the class of aggrieved persons have been given a statutory right in respect of action by administrative officials. Chapter 40A, Section 13, as amended by St. 1955, c. 325, Section 1, now permits appeals by "any person aggrieved by any order or decision of the inspector of buildings or other administrative official in violation of any provision of this chapter, or any ordinance or by-law adopted thereunder." See, for earlier provision, St. 1941, c. 198, Section 1.

Section 13 of c. 40A, as amended, does not, however, establish a comprehensive statutory scheme for enforcement which restricts to the statutory procedures action by individual citizens seeking to invoke the enforcement process. Compare St. 1924, c. 488, Section 20, as amended by St. 1927, c. 220, Section 6, as construed in Godfrey v. Building Commr. of Boston, 263 Mass. 589.

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The uncertain relation of Section 13 to the enforcing process is apparent upon consideration of possible eventualities. Decisions granting a permit may not, within the appeal period, come to the attention of persons who will be aggrieved by a violation of the zoning law. Atherton case, supra, 337 Mass. at 259. Construction under a permit may not be begun within the appeal period. The permit, or even construction under it, may not disclose the violation. See Dodge v. Inspector of Bldgs. of Newburyport, 340 Mass. 382, 385. There is no requirement in the statute for notice to all persons possibly affected by an application for a permit. Aggrieved persons as to whom applicable provisions in respect of time of appeal are unreasonable may proceed by mandamus for enforcement of the law. Gamer v. Zoning Bd. of Appeals of Newton, 346 Mass. 648, 649 (five day appeal period, by ordinance). There is no provision in the statute requiring a written decision on requests for enforcement. If the decision not to comply with such a request is oral, no appeal lies. There is in such a case nothing except inaction to show what the decision is, and of course no date of decision from which to compute the time for an appeal. Williams v. Inspector of Bldgs. of Belmont, 341 Mass. 188, 189-190. Hinves v. Commissioner of Pub. Works of Fall River, 342 Mass. 54, 57. Bowes v. Inspector of Bldgs. of Brockton, 347 Mass. 295, 296. See Atherton v. Selectmen of Bourne, 337 Mass. 250, 258-259. If, as here, the response is in writing, there is nevertheless no notice to other persons aggrieved and no basis for barring them from mandamus. There would be no occasion for notice to anyone else if the person requesting action did not appeal from the enforcing officer's decision not to act.

Failure to take an appeal within the prescribed period from the granting or denial of a permit is a bar to a direct review of the action in respect of the permit. Church v. Building Inspector of Natick, 343 Mass. 266, 268-269. Kolodny v. Board of Appeals of Brookline, 346 Mass. 285. Kolodny v. Building Commr. of Brookline, 346 Mass. 289, 290-291. Gamer case, supra. See for cases holding that a timely appeal lies in respect of a permit, Colabufalo v.

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Board of Appeal of Newton, 336 Mass. 213, 216-217; Lanner v. Board of Appeal of Tewksbury, ante, 220, 221-223; Building Inspector of Acton v. Board of Appeals of Acton, ante, 453. In a proceeding for enforcement of the zoning law, however, the existence of a permit is inconsequential. Kolodny v. Building Commr. of Brookline, 346 Mass. 289, and cases cited. Hence, as this second of the Kolodny cases has established, the loss by an aggrieved citizen of the right of direct attack on a permit does not entail loss of the right of the same citizen to bring a mandamus petition for enforcement of the law and to stop violations in the construction going forward under the permit. [Note 4]

Furthermore some enforcement actions raise only the issue of the validity of a new zoning enactment, or an amendment. See Sunderland v. Building Inspector of North Andover, 328 Mass. 638. It may be questioned whether the board, as the creature of the by-law under attack, is or could be concerned with that issue. See State v. Gurda, 209 Wis. 63, 67-68, and other cases cited in the Atherton case, supra (337 Mass. at 259); Annotation, 136 A. L. R. 1378, 1388-1391.

The plaintiff's rights upon receipt of the letter sent by the town counsel must be determined in the light of the foregoing principles.

The reply to the request for enforcement was, of course, in a sense a decision. But it was reasonably construable merely as courteous notice of the intent of those acting for the town not to take action. See the quotation from the Kelley case, supra (248 Mass. at 169). We hold that, in the circumstances, the aggrieved abutter, by failure to treat the notice as a decision and to appeal therefrom, did not lose the right, which until then she had had along with other citizens, and which other citizens continued to enjoy, to invoke by mandamus the public right to have the law immediately enforced. Resorting to mandamus showed an

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intent to seek enforcement of that right rather than the reversal of a decision of the building inspector. Dodge v. Inspector of Bldgs. of Newburyport, 340 Mass. 382, 385-386. Van Arsdale v. Provincetown, 344 Mass. 146, 151.

We conclude that the mandamus petition brought by the plaintiff could have been maintained.

The plaintiff's right in mandamus is not, however, dependent upon the absence of any right to an appeal under c. 40A, Section 13, that could have led to a determination of a violation. Section 13, as shown, establishes no sure means open to aggrieved citizens to require enforcement. It would be arbitrary and unreasonable to limit to rights under Section 13 those who have asked for enforcement and received a negative reply, while all others may proceed by mandamus. Nevertheless, no consideration of justice or logic requires that we hold that an aggrieved citizen, who construes a negative reply as a decision and takes an appeal under Section 13, may not have the decision reviewed. Such a holding could make decisive the choice of remedy in a marginal case where the proper course is not plain and where, as is shown below, nothing of great substance turns on the choice.

A decision of the enforcing officer that there is not a violation is, in a sense, a decision "in violation of" the zoning laws, if the establishment complained of exists in violation of law. Whatever the decision of the board, if it is not accepted, the issue will go to the Superior Court under Section 21. The court has the power under Section 21 to make such "decree as justice and equity may require." If the court finds a violation, justice and equity will call for the exercise of the court's enforcing power under Section 22. Hence, after an appeal under Section 13, just as in a mandamus proceeding, enforcement in a contested case will come only after a full hearing in the Superior Court in a proceeding in which the enforcing officer is involved.

Bringing before the board an issue of violation may do no more than postpone the decisive ruling of the Superior Court. In such a case as this, however, where the issue is

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primarily one of fact, initial review by the board may be useful. We need not decide whether an appeal would lie if the only issue were the validity of a zoning enactment. See discussion above.

We hold that an aggrieved person may by appeal to the board under Section 13 seek the review of a written decision that there is no violation of law in the facts complained of, but if he does not do so he does not lose his right as a citizen to invoke the public right of immediate law enforcement.

2. There was no error in the judge's conclusion that the defendants' nonconforming use had been unlawfully expanded, that is, changed "in character and area." There was evidence to support his findings as to conditions prior to and after the adoption of the zoning by-law, July 31, 1957. [Note 5] The evidence does not persuade us that different findings were required. The by-law had no provision as to nonconforming use so that we refer only to G. L. c. 40A, Section 5. The facts found show more than expansion within nonconforming premises of the nonconforming business there conducted. We agree that there was a change in quality or character as well as of the degree of use. Marblehead v. Rosenthal, 316 Mass. 124. Inspector of Bldgs. of Burlington

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v. Murphy, 320 Mass. 207. Lynn v. Deam, 324 Mass. 607. Adamsky v. Mendes, 326 Mass. 603. Planning Bd. of Reading v. Board of Appeals of Reading, 333 Mass. 657. Seekonk v. Anthony, 339 Mass. 49, 54. Hinves v. Commissioner of Pub. Works of Fall River, 342 Mass. 54, 57. See also Bowes v. Inspector of Bldgs. of Brockton, 347 Mass. 295.

3. There is nothing in the suggestion that the provisions of G. L. c. 91, sections Sections 14 and 18, override the local zoning by-law so that, having the permission of the Commonwealth to lay out piers and wharves, the defendants may use them contrary to the terms of the zoning by-law. The residence district is zoned along the Westport River "as far as private rights extend." Those rights extend to extreme low water or one hundred rods from the ordinary high water mark. Iris v. Hingham, 303 Mass. 401, 403. That the outer extremities of the piers may be outside the area subject to zoning regulation in no way enlarges the use which may be made of the private property within the regulated area.

Decree affirmed.