18 Mass. App. Ct. 471

Carolyn M. Vokes & another1 vs. Avery W. Lovell, Inc. (and a companion case2).

Plymouth.

June 14, 1984.

—August 17, 1984.

Present: Greaney, C.J., Brown, & Perretta, JJ.

*472Edward W. Kirk for Avery W. Lovell, Inc.

Robert E. Galvin for the plaintiffs.

Greaney, C.J.

The defendant, Avery W. Lovell, Inc. (Lovell), appeals from judgments of the Superior Court enjoining Lovell from (a) garaging or maintaining eighteen-wheel vehicles or allowing such vehicles on its property and (b) using a garage for the storage of commercial vehicles and equipment. The appeals have been consolidated. The questions argued are whether the Superior Court had jurisdiction over the cases, and if so, whether it decided them correctly.

We state the facts pertaining to the jurisdictional issues. Lovell is in the business of installing and maintaining septic tanks and cesspools with its base of operations at 789 Mayflower Street in Duxbury. The property is located in a residential zone. Lovell conducted its business pursuant to a variance granted by the board of appeals of Duxbury (board) in 1965 which permitted it (1) to conduct, in “a residential district,” a “cesspool business, both as to the maintenance of the same and the construction of new cesspools,” and (2) to construct “a garage to store [its] equipment under cover.” In 1975, the *473town adopted a new zoning by-law. By reason of art. 106 of the by-law, Lovell’s operations became a nonconforming use. The plaintiffs live on Mayflower Street in the immediate vicinity of Lovell’s business.

In early 1981, Lovell inquired of the board whether a special permit would be necessary under the by-law for the construction of a second garage on its Mayflower Street property. On May 15, 1981, the board issued a memorandum to the building inspector stating that a special permit was unnecessary. On June 22,1981, the plaintiffs, and other neighborhood residents, wrote to the building inspector complaining about the parking of large flatbed trucks and “other long trailer trucks” on Lovell’s property.3 The building inspector did not reply to the letter.

On July 10, 1981, the building inspector issued a building permit granting Lovell permission to construct a fifty by fifty-five foot second building for the “storage of vehicles.” The building inspector’s decision to grant the permit was not appealed to the board.4

*474On October 19,1981, after engaging a lawyer, the plaintiffs, in two letters, requested that the building inspector (1) issue a “stop order” prohibiting Lovell from operating and maintaining eighteen-wheel gravel trucks and flatbed trailers, and (2) issue a “stop order” on the building permit granted Lovell on July 10, 1981.* ***5 The building inspector did not respond to the letters within fourteen days. He did, however, reply in a letter dated November 18, 1981, in which he declined both requests for enforcement.6

*475On November 19, 1981, the plaintiffs appealed from the building inspector’s decision to the board. On January 14, 1982, the board held a hearing on the appeal and also heard Lovell’s argument that the board lacked jurisdiction. On February 1, 1982, the board filed a written decision with the town clerk in which it stated that it had “no jurisdiction to hear the issue of the building permit as the appeal appears to be untimely.” While the board’s decision is a bit unclear, it also appears that the board believed that it lacked jurisdiction to hear the appeal pertaining to Lovell’s use of eighteen-wheel vehicles. Nevertheless, the board agreed to decide the merits “in order that the [t]own, the parties and the public may have the benefit of our opinion.” The board upheld both decisions of the building inspector.

On February 17, 1982, the plaintiffs filed two complaints in the Superior Court alleging that they were aggrieved by the board’s decision. The complaints sought (a) to enjoin Lovell from maintaining and using eighteen-wheel vehicles on its property and from using the second garage built pursuant to the permit in violation of the by-law; (b) orders directing the building inspector to compel removal of the garage and prohibiting Lovell’s use of eighteen-wheel vehicles; and (c) a further order confining Lovell’s operations to the level of nonconforming use permitted by the 1965 variance. Lovell filed motions to dismiss both actions on the ground that the Superior Court lacked jurisdiction. A judge of the Superior Court denied Lovell’s motions and considered the cases on their merits. He concluded that the board had erred and entered the judgments described earlier.

1. Resolution of the jurisdictional questions requires examination of the pertinent provisions of §§ 7, 8, and 15 of G. L. c. 40A.* ***7

*476The building inspector in Duxbury is the officer charged with enforcement of the Duxbury zoning by-law. Section 7 of G. L. c. 40A provides that the building inspector “shall notify, in writing, the party requesting . . . enforcement [of the zoning by-law] of any action or refusal to act, and the reasons therefor, within fourteen days of receipt of [a] request” for enforcement. Under § 8 of G. L. c. 40A, a person aggrieved “by reason of his inability to obtain . . . enforcement action” has a right of appeal to the permit granting authority, here the board. Under § 15 of c. 40A, any such appeal must be taken “within thirty days from the date of the order or decision which is being appealed.” The language of the proviso in the second paragraph of § 7, however, establishes a six-year limitations period for actions seeking to remedy zoning violations arising out of alleged unlawful activities conducted pursuant to an “original building permit.”8

Lovell urges a strict construction of these statutes. As to the dispute over the eighteen-wheel vehicles, Lovell argues that the building inspector’s failure to respond by July 6, 1981, the fourteenth day following the plaintiffs’ June 22 letter, consti*477tuted a constructive denial of its request for enforcement and that the thirty-day appeal period specified in § 15 commenced running on that date and expired on August 5, 1981. As to the dispute over the building permit, Lovell measures the thirty-day appeal period from the date of the permit’s issuance (July 10, 1981) making (according to its argument) an appeal from the permit’s grant untimely if brought later than August 10, 1981. In Lovell’s view, the requests for enforcement initiated by the letters of the plaintiffs’ counsel on October 19, 1981 (followed by the building inspector’s negative reply to those requests on November 18, 1981, and the plaintiffs’ appeal to the board on November 19, 1981), were untimely in all respects.

The plaintiffs, on the other hand, look to the building inspector’s written denial, on November 18, 1981, of both their requests for enforcement as the date which started the running of the thirty-day clock under § 15. In the plaintiffs’ view, appeals filed with the board on November 19, 1981, and with the Superior Court on February 17, 1982 (the latter within twenty days of the filing of the board’s decision with the town clerk, on February 1, 1982, see G. L. c. 40A, § 17), were timely.

We think that the written decision required of a building inspector by § 7 should be deemed the operative event for purposes of the plaintiffs’ rights of appeal. Section 7 is unambiguous in requiring a response “in writing” with “the reasons therefor” when a building inspector “declines to act” on a request for enforcement. See Quinn v. Zoning Bd. of Appeals of Dalton, ante 191, 194-195 (1984) (where language of a statute is unambiguous, a court will construe it in accordance with its plain language). We also think that the language of § 8, which confers the right to appeal upon a “person aggrieved by reason of his inability to obtain . . . enforcement” contemplates, as a precondition to the right of appeal, the written response declining enforcement described in § 7.

In support of this interpretation, we consider significant the lack of any indication in either § 7 or § 8 that a building inspector’s failure to respond within fourteen days to an en*478forcement request is to be deemed a constructive denial of the request for purposes of setting in motion the thirty-day appeal period provided by § 15. The fact that the Legislature, in other provisions of the present Zoning Act, has made express provision for the effect of failures to act by local zoning authorities strongly suggests that the absence of any like provision in § 7 or § 8 is purposeful.9 Not only is an interpretation of §§ 7, 8 and 15 which links the time for an appeal by an aggrieved party to the permit granting authority to the date of the building inspector’s written decision under § 7 faithful to the reasonably plain wording of the statutes, but it also provides a means for the fair and practical administration of the provisions of c. 40A governing enforcement of a zoning by-law at the local stage.10

*479We are not persuaded that a more restrictive construction is required by the designation in § 7 of a fourteen-day period for a response by the building inspector. This period is obviously designed to encourage promptness. In some cases, however, a building inspector may not be able to act on a request within fourteen days for legitimate reasons, such as (for example) the inspector’s need to obtain further information from the complaining parties to clarify the nature of the complaint or his need to consult with other municipal boards or officers having an interest in the matter.11 In our view, the fourteen day requirement in § 7 “relates only to the time of performance of a duty by a public officer and does not go to the essence of the thing to be done,” Cheney v. Coughlin, 201 Mass. 204, 211 (1909); therefore it is directory and not mandatory. See Cullen v. Building Inspector of North Attleborough, 353 Mass. 671, 679-680 (1968), and cases cited. We conclude that the date on which a zoning enforcement officer responds in writing to a § 7 request for enforcement creates the appealable decision contemplated by § 8 and becomes the date for measuring the thirty-day appeal period set forth in § 15.12 There is nothing to *480the contrary in either Neuhaus v. Building Inspector of Marlborough, 11 Mass. App. Ct. 230 (1981), in the cases following that decision,13 or in the Duxbury zoning by-law.

Applying this reasoning, we conclude that jurisdictional requirements pertinent to the complaint concerning the eighteen-wheel vehicles were met. The failure of the building inspector to respond to the plaintiffs’ June 22, 1981, request was of no legal consequence. The plaintiffs’ right of appeal to the board thus arose on November 18, 1981, when the inspector first complied with § 7 by his written response denying enforcement. Appeal to the board from the inspector’s refusal of enforcement seasonably followed within thirty days of the inspector’s denial (as required by G. L. c. 40A, § 15), and the appeal to the Superior Court from the board’s decision was within the twenty days required by G. L. c. 40A, § 17.

The dispute concerning the building permit involves different considerations. Under § 13 of the prior c. 40A, a person aggrieved by a decision to issue a building permit could seek direct review of the decision. Until 1963,14 there was no statutory time limit for pursuing that right of review and the setting of a “reasonable time” limit was left to local zoning by-laws. Failure to appeal within any time period set by the by-law foreclosed the right of direct review. See Kolodny v. Board of Appeals of Brookline, 346 Mass. 285 (1963).15

*481It was recognized, however, in Brady v. Board of Appeals of Westport, 348 Mass. 515 (1965), that the right of direct review was not the exclusive remedy. The passage from Brady (at 519-520) set forth in the margin describes the shortcomings of the prior c. 40A in this area and the reasons necessitating an alternative remedy to correct violations of the zoning by-law made under color of a building permit.16 In essence, Brady con*482firmed the existence of the right well-established in Massachusetts jurisprudence, of aggrieved citizens, to obtain, by means of mandamus, strict enforcement of the zoning by-law.17 See Sunderland v. Building Inspector of North Andover, 328 Mass. 638, 640 (1952), and cases cited; Hallenborg v. Bil-lerica, 360 Mass. 513, 519-520 (1971).

The Brady right appears implicit in the addition to § 22 of the prior c. 40A (by means of St. 1970, c. 678, § 1) of a proviso establishing a six-year limitations period for actions seeking to remedy zoning violations occurring under an “original building permit.”18 The six-year limitation period was inserted in the second paragraph of § 7 of G. L. c. 40A, see note 8, supra, to be read and applied in conjunction with the written response requirement of the first paragraph of § 7 and the rights conferred by §§ 8, 15 and 17. Thus, with 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 *483administrative remedies, a right to obtain judicial review pursuant to G. L. c. 40A, § 17. See Neuhaus v. Building Inspector of Marlborough, 11 Mass. App. Ct. at 232-235.19

Here the “original building permit,” for purposes of § 7, was the permit authorizing Lovell to construct the second garage. See Cape Resort Hotels, Inc. v. Alcoholic Licensing Bd. of Falmouth, 385 Mass. 205, 217-218 (1982). We view the plaintiffs’ written request on October 19, 1981, for enforcement, see note 5, supra, as an effort to stop allegedly unlawful construction from going forward under color of that permit. The building inspector’s written denial of their request made the plaintiffs, under § 8, “person[s] aggrieved by reason of [their] inability to obtain . . . enforcement action,” and they thereafter complied, in a timely manner, with the jurisdictional steps required by c. 40A and the Neuhaus decision. We conclude that the Superior Court had jurisdiction of the appeal from the board’s decision affirming the issuance of the building permit.20 See Carstensen v. Zoning Bd. of Appeals of Cambridge, 11 Mass. App. Ct. 348, 351-352 (1981) (applying this rule without discussing the same).

2. We turn to a consideration of the merits. In addition to the facts previously recited in this opinion, the judge’s memorandum contained the additional findings of fact set forth in the appendix to this opinion. Based on all the facts found, the judge ruled that the construction of the second garage was *484beyond the scope of the 1965 variance and constituted an unlawful expansion of a nonconforming use in violation of the Duxbury zoning by-law. The judge further ruled that Lovell’s use of eighteen-wheel vehicles violated each of the three considerations set forth in Bridgewater v. Chuckran, 351 Mass. 20, 23 (1966), for determining the lawfulness of an expansion of a nonconforming use.

There was no error in the judge’s rulings on the matter of the second garage. The 1965 variance confined Lovell to using the property for its “cesspool business, both as to the maintenance of the same and the construction of new cesspools,” and allowed Lovell to “construct and maintain a [single] six-stall garage on [the] land ... for the storage and maintenance of commercial vehicles and equipment.” The variance sanctioned the first garage solely for the purpose of the storage and maintenance of vehicles used by Lovell in connection with the use permitted by the variance — the conduct of a cesspool business. The construction of the second garage violated the limits of the variance (and, as a result, in 1975, violated the permissible scope of the nonconforming use) that permitted construction of only one garage.21 Compare Selectmen of Stockbridge v. *485Monument Inn, Inc., 14 Mass. App. Ct. 957, 959 (1982) (enlargement of facilities in violation of special permit is an impermissible use of property).

As to the eighteen-wheel vehicles, the judge’s findings of fact (which are supported both by the testimony he found credible and the documentary and demonstrative evidence) make clear that by associating in 1979 with Francesco Excavation Corp., Lovell had established and conducted, side by side on the premises with its cesspool business, a trucking business in connection with work as a general contractor and excavator. These latter enterprises were not permitted by the 1965 variance22 (and thus were beyond the scope of the 1975 by-law protecting nonconforming uses) and constituted new, substantively different, uses from the authorized business. See Building Inspector of Malden v. Werlin Realty Inc., 349 Mass. 623, 624-625 (1965).

Lovell argues that the eighteen-wheel vehicles are being used in connection with the lawful expansion of its cesspool business. On the facts found, the judge correctly concluded *486(in light of the rule that the party maintaining a nonconforming use has the burden of proving any expansion lawful, see Cape Resort Hotels, Inc. v. Alcoholic Licensing Bd. of Falmouth, 385 Mass. at 212) that Lovell had failed to demonstrate that the enlarged use satisfied the three considerations set forth in Bridgewater v. Chuckran, 351 Mass. at 23.23 None of the other arguments made by Lovell persuades us that any different conclusion is required.

3. The remaining questions concern the judgments.

(a) The judge concluded that he could not ascertain, from the record, whether the second garage could be put to any lawful use or otherwise made to conform to the by-law. He, therefore, declined to order the garage removed pending an inquiry to determine whether relief could be obtained under the provisions of the by-law. Accordingly, part 1 of the judgments ordered only that Lovell be enjoined from using the second garage in connection with the use and maintenance of commercial vehicles and equipment. The decision to withhold *487an order for the removal of the second garage pending the possibility of further zoning proceedings was within the judge’s discretion. See Cullen v. Building Inspector of North Attleborough, 353 Mass. 671, 678-679 (1968); Selectmen of Blackstone v. Tellestone, 4 Mass. App. Ct. 311, 316 (1976).

(b) Paragraph 2 of the judgment enjoined Lovell from “garaging or maintaining eighteen-wheel vehicles or allowing the same on his property [at] 789 Mayflower Street, Duxbury” (emphasis supplied). The non-italicized language fashioned relief which was reasonably related to the grievance to be remedied. See Billerica v. Quinn, 320 Mass. 687, 690 (1947); Perez v. Boston Housing Authy., 379 Mass. 703, 730 (1980). The italicized language, however, is overbroad, since the facts found by the judge indicate that suppliers of Lovell’s cesspool business had, from the inception of the business at the Mayflower Street site, made deliveries of materials, as necessary, to Lovell by means of eighteen-wheel vehicles. This aspect of the cases must be remanded for reconsideration of the scope of relief granted in light of the scope of the protected prior nonconforming use. The judge, if he deems it necessary or desirable, may hold an evidentiary hearing.

The italicized language in paragraph 2 of the judgments (“or allowing the same on his property”) is vacated and that issue is remanded for the devising of new relief in accordance with this opinion. The balance of the judgments is affirmed. The plaintiffs are to have costs of appeal.

So ordered.

Appendix.

“The plaintiffs live in the immediate vicinity of the Lovell operation. Plaintiff Vokes resides at 761 Mayflower Street and plaintiff Boucher, at 748 Mayflower Street.

“Between 1975 and 1979, the Lovell operation used and garaged commercial vehicles customarily used in a cesspool and septic tank maintenance and installation service on the Mayflower Street property. These included bulldozers, standard size pump trucks (i.e. not eighteen-wheelers), standard *488size dump trucks, a ‘loader, ’ and other vehicles of similar size and function. Vehicles were garaged in the six-stall garage which Lovell had built in accordance with the terms of the 1965 variance.

“During these years, supplier made infrequent but regular deliveries of materials used in Lovell’s business (e.g., gravel) in eighteen-wheelers. Eighteen-wheel vehicles were never regularly garaged or maintained on the Mayflower Street property during these years.

“In the latter portion of 1979, Lovell entered into a general partnership with Francesco Excavation Corp. (Francesco). Francesco is in the business of excavating and transporting excavated materials and other bulk materials. Francesco owns and maintains several eighteen-wheelers in connection with its business. The terms of the partnership are basically that Francesco may have full use of Lovell’s Mayflower Street facilities for storage and maintenance of its vehicles and that Lovell may have use of Francesco’s vehicles as Lovell may need them for deliveries and so forth in connection with its business. Francesco has listed 789 Mayflower Street, Duxbury, as its main address since the latter portion of 1979.

“During the early portion of 1981, Lovell, through Mr. A very Lovell, inquired of the [b]oard whether a special permit would be necessary for the construction of an additional garage on the Mayflower Street property. The [b]oard informed Mr. Lovell that a special permit would not be necessary and issued a memorandum to the building inspector to that effect. ... A building permit was issued to Lovell in July of 1981. Lovell constructed a second garage, comparable in size to the first garage, shortly thereafter. The second garage is used for maintenance work on Francesco’s trucks and storage of trucks and equipment. Lovell did not have need for additional storage space for its own vehicles and equipment at the time the second garage was constructed.

“In the years following 1970, a number of residences were built in the immediate vicinity of the Lovell operation. Persons living in these residences registered no complaints regarding the Lovell operation with Lovell or town officials prior to the latter portion of 1979. Since that time, residents have been complaining. The residents report an increase in the level of noise emanating from the Lovell operation during the latter portion of 1979 described by one resident as ‘phenomenal.’ Noises heard are described as ‘blasting’ sounds, ‘chains clanking,’ horns blowing, and truck engines starting. Noise is heard at night, at 3 or 4 a.m., and on Sundays as well as during regular business hours. The neighbors were not disturbed by noise emanating from the Lovell operation prior to the latter portion of 1979.

“The neighbors also report that a serious traffic problem has developed since the latter portion of 1979 due to what one resident described as an ‘almost constant traffic’ of eighteen-wheelers on the narrow residential roads in the area surrounding the Lovell operation. [Here a footnote observed that *489‘On Mayflower Street, two cars are able to pass easily in the summer months but only with difficulty during the winter months when there is snow.’] On one area road with a fairly sharp curve, residents have been run off the road by eighteen-wheelers travelling toward them. Neighborhood children have been forced to abandon Mayflower Street as a bicycle route. Residents report being regularly in fear for the safety of themselves and their families while driving on the neighborhood roads.”

Vokes v. Avery W. Lovell, Inc.
18 Mass. App. Ct. 471

Case Details

Name
Vokes v. Avery W. Lovell, Inc.
Decision Date
Aug 17, 1984
Citations

18 Mass. App. Ct. 471

Jurisdiction
Massachusetts

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