TOWN OF STOW vs. LLOYD D. PUGSLEY & others (and a companion case [Note 1]).

WHITTEMORE, J. The town of Stow on June 12, 1963, brought a bill for declaratory relief under G. L. c. 231A. The defendants are: (a) Wylie Pugsley and his wife Leajean, as the owners of a parcel of land on the westerly side of Gleasondale Road containing about 50,000 square feet of land; (b) their son Lloyd D. Pugsley; (c) four abutting property owners.

The controversy alleged in the bill relates to a cement building being constructed by Lloyd Pugsley on his parents' land for use as a motor vehicle repair garage. The issues were whether a license was required under the general by-law applying to the "sale or barter of junk, old metals or second hand articles" and whether the building violates the zoning by-law. The bill included a prayer for injunctive relief.

On July 24, 1963, the four owners of abutting property brought a petition for a writ of mandamus against the selectmen as the enforcing officers (and, by motion, against the three Pugsleys) praying for an order that the selectmen bring a bill in equity to enforce the zoning by-law and that an enforcing injunction be issued.

After a single hearing on the two proceedings the trial judge entered a decree dismissing the bill for declaratory relief without prejudice, and entered in the mandamus proceeding

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orders whereby an answer in abatement of the Pugsleys was "disallowed" and a writ of mandamus was to issue requiring the selectmen to proceed in equity to enjoin violation of the zoning by-law by the Pugsleys.

1. The bill for declaratory relief was properly brought and should not have been dismissed. Controversies in respect of the enforcement of zoning by-laws or ordinances are appropriate for resolution under G. L. c. 231A. Noonan v. Moulton, 348 Mass. 633, 637. Plainly, on the pleadings and the testimony there is a controversy between the town of Stow as represented by the selectmen (the enforcing officers) and the Pugsleys, as to whether the zoning by-law barred the garage building, and whether a permit was required under the general by-law. See Attorney Gen. v. Dover, 327 Mass. 601, 606.

It follows that the mandamus petition was subject to abatement. In effect, the town (the real party in any enforcement proceeding, Brady v. Board of Appeals of Westport, 348 Mass. 515, 518) had already undertaken the enforcement that the petition sought to require. The town had asked to be instructed whether there were violations of the by-laws, and had already invoked the enforcing power given to the Superior Court by G. L. c. 40A, Section 22.

2. The proposed repair garage was not prospectively a violation of art. 6, Section 5, of the general by-laws that provides, "No person shall collect, deal in, or keep a shop for the purchase, sale or barter of junk, old metals or second hand articles within the limits of the town, unless licensed by the board of selectmen." This proposition speaks for itself.

3. The repair garage is a violation of the zoning by-law.

The by-law was amended in September, 1962, effective October 5, 1962. The evidence shows that Lloyd Pugsley began the excavation prior to October. When pressed as to the date of the beginning of construction he testified, "I will say October for my own benefit. . . . I can't give you a date [in October]. That is why I gave you the month." There was no testimony that the construction of the building began before October 5, or that it was substantially advanced on that date. Such work as had been done prior to

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October 5, 1962, gave Lloyd Pugsley no exemption under the nonconforming use provision of G. L. c. 40A, Section 5. Brett v. Building Commr. of Brookline, 250 Mass. 73, 79-81. See Locatelli v. Medford, 287 Mass. 560, cert. den. 294 U.S. 727. General Laws c. 40A, Section 11, provides in part, "[T]he beginning of work . . . after . . . notice [of hearing before the planning board required by Section 6] has been given or . . . [the] warrant [for the town meeting at which the by-law or amendment is adopted] has been issued, shall not justify the violation of a zoning ordinance or by-law or an amendment thereto subsequently adopted as the outcome of such hearing and in substantial accord with such notice or warrant; provided, the subsequent steps required for the adoption of such ordinance or by-law or amendment thereto are taken in their usual sequence without unnecessary or unreasonable delay." The evidence does not disclose the date of the hearing or of the warrant. There was some testimony that preliminary excavation work began in August, 1962. Our view of the by-law in its form prior to October 5, 1962, is such that we need not determine whether excavation is in law the "beginning of work upon a building or structure" or whether the above part of Section 11 is to be construed as making work begun prior to notice of the planning board hearing subject only to the by-law as it stood prior to the amendment.

The by-law prior to October 5, 1962, provided: "Each main building or structure shall be erected on a lot containing not less than forty thousand (40,000) square feet of land and having not less than one hundred fifty (150) feet street frontage." This means that for each main building there shall be a lot not less in size and frontage than stated. The Pugsley lot already has thereon a dwelling house. That is a main building. The answer of the Pugsleys to the bill admits this. [Note 2] Lloyd Pugsley testified that the purpose

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of the proposed new building is for use as a repair garage -- a place for the "repairing of automobiles." The "foundation area" of the building is forty feet by fifty feet. The building is of cement block construction, with two fifty-five foot "I" beams carrying a tar and gravel roof. This commercial building is also a main building within the meaning of the by-law. The 50,000 square foot lot with a frontage of about 225 feet does not support more than one main building.

The October 5, 1962, amendments do not authorize the construction of this commercial building on this residential lot. These amendments caused Section 4, subparagraph 2 (a) and (b) and Section 5, subparagraph 6 (a) and (b) to read as set out in the margin. [Note 3]

A further amendment was adopted in February, 1963. No party contends that the by-law as amended in February, 1963, makes the garage a permitted structure, at least without a permissive order under the by-law. [Note 4]

There was evidence tending to show that Lloyd Pugsley at "various times" in the past ten or twelve years had done some automobile repair work in a barn on the premises and

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had "parts of cars, . . . tires and grease and equipment and stuff" stored there. The testimony was that a zoning by-law was first adopted in 1935 or 1936. The record, however, does not permit a finding as to the provisions of the by-law when this use of the barn began. We do not know therefore whether there could be a basis for contending that this limited commercial use was an exempt nonconforming use. Perhaps the reasonable inference is that the provision restricting one main building to one lot dates from the inception of the by-law. In any event, the expansion by the construction of the large cement block garage would not be within the nonconforming exemption of G. L. c. 40A, Section 5. Brady v. Board of Appeals of Westport, 348 Mass. 515, 523-524, and cases cited.

Section 3, subparagraph 2 of the zoning by-law provides as to nonconforming uses: "The Board of Appeals may permit the extension of non-conforming building or structure or use throughout the premises provided such extension is not more detrimental or objectionable to the neighborhood and the town." We assume without deciding that this section would support a decision by the board, on proper application, for the extension of Lloyd Pugsley's nonconforming use, if the use was in fact nonconforming and not violative of the by-law when it began. See Chilson v. Zoning Bd. of Appeal of Attleboro, 344 Mass. 406, 412-414.

Perhaps the cement block garage building, now substantially completed, is legally usable, or modifiable and legally usable, for a use accessory to the existing main use of the lot for dwelling purposes. There is only one district in the town and the by-law imposes much less regulation than is common in such regulations. The considerations noted in this and the preceding paragraph are relevant to the relief now appropriate.

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4. The order disallowing the answer in abatement in the mandamus proceeding and the order for issuance of the writ are reversed. An order dismissing the petition for writ of mandamus is to be entered in the Superior Court.

The decree dismissing the bill for declaratory relief is reversed. A decree is to enter in the Superior Court in general accordance with this opinion and, in particular, declaring (A) the general by-law, art. 6, Section 5, requiring a license for a junk business is inapplicable; (B) the use of the cement block building for the conduct of an automobile repair business would violate the zoning by-law; (C) the building, if not shown on a further hearing to be adapted and intended for a permitted use, is to be removed, provided that no decree ordering removal shall be entered prior to the expiration of sixty days from the date of the rescript, and if in that period an application for a permit to the board of appeals shall be made, seeking discretionary action to validate the presence and some use of the structure, no decree for removal shall be entered until the final termination of the proceedings, including any appeal.

So ordered.