City of Woburn v. McNutt Bros. Equipment Corp.

451 N.E.2d 437, 16 Mass. App. Ct. 236, 1983 Mass. App. LEXIS 1377
CourtMassachusetts Appeals Court
DecidedJune 24, 1983
StatusPublished
Cited by4 cases

This text of 451 N.E.2d 437 (City of Woburn v. McNutt Bros. Equipment Corp.) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Woburn v. McNutt Bros. Equipment Corp., 451 N.E.2d 437, 16 Mass. App. Ct. 236, 1983 Mass. App. LEXIS 1377 (Mass. Ct. App. 1983).

Opinion

Perretta, J.

The individual defendants own land upon which they operate a heavy equipment contracting business . The land is located in an area of Woburn that is zoned for residential use. Sometime in 1979 or 1980, a dispute began between the city council and the building inspector as to whether the defendants’ operating, parking, storing, and repairing of dump trucks, front-end loaders, and other vehicles and equipment on their premises constituted, as the building inspector had concluded, a “legal nonconforming [237]*237operation,” in existence prior to the enactment of the 1970 Woburn zoning ordinance, or, as the city council insisted, an illegal enlargement of an otherwise protected preexisting use. The city council issued a resolve recommending that the building inspector enforce the zoning ordinance. When he did not comply with demands of the council, the city brought an action against the defendants in the Superior Court under G. L. c. 231 A, § 1, seeking a declaration that their use of the land was in violation of the zoning ordinance and requesting injunctive relief. The defendants moved to dismiss the complaint for the reason, among others, that the city had not exhausted its administrative remedies.2 The motion was allowed, judgment ensued, and the city appeals. We affirm.

On June 23, 1978, the city accepted St. 1975, c. 808, “The Zoning Act,”3 and for purposes of compatability therewith, amended its zoning ordinance. We have been provided with a record appendix which includes, along with other exhibits, only art. X of the zoning ordinance, as “updated to June, 1981.”

By § 10.00 of the ordinance, the building inspector is given “the powers necessary to administer and enforce the provisions of this Ordinance.” See G. L. c. 40A, § 7. The city council is designated as the special permit granting authority, § 10.08, and the board of appeals is comprised of “three members who shall be citizens of Woburn,” § 10.09. See G. L. c. 40A, § 1A, inserted by St. 1977, c. 829, § 3A.

Section 10.08(3) of the zoning ordinance provides that “the extension or enlargement of a nonconforming use,” as [238]*238provided in G. L. c. 40A, § 6,4 can be authorized only by the city council as a “special exception.” An application for a special exception is made to the building inspector “and forwarded to the City Council, [and] the Council may, in appropriate cases and subject to appropriate conditions and safeguards, grant a permit for such Special Exception . . . and no others.”

Because of the building inspector’s decision that the defendants do not need a special permit, they have no reason to submit an application for the same under the procedures set out in § 10.08 of the ordinance and G. L. c. 40A, § 6. Community review of the dispute had been bypassed, thus far, as the city believes itself to be without a local administrative remedy and, hence, its action against the defendants under G. L. c. 231A.5

The city argues that declaratory relief is available where, if it is withheld, a municipality will be estopped from enforcing its zoning ordinance. See Ferrante v. Board of Appeals of Northampton, 345 Mass. 158, 162 (1962); Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, 162-163 (1977). While that might be, G. L. c. 40A, § 7, requires that local administrative remedies, if available, be exhausted before judicial relief is sought. (“No action, suit or proceeding shall be maintained in any court. . . except in accordance with the provisions of this section, section eight and section seventeen. . . .”) See also Neuhaus v. Building Inspector of Marlborough, 11 Mass. App. Ct. 230, 231 (1981). There a judgment of dismissal of the plaintiff land[239]*239owners’ action in the nature of mandamus to compel the building inspector to revoke a building permit and to enforce a minimum lot frontage requirement was affirmed because “the provisions of the present G. L. c. 40A . . . require that all questions concerning the enforcement of valid zoning ordinances and by-laws be determined at the local administrative level before resort may be had to a court for enforcement” (footnote omitted). Contrast Castelli v. Selectmen of Seekonk, 15 Mass. App. Ct. 711, 716 (1983), where it was held that a proceeding to revoke a building inspector’s decision on the ground of improper influence did not involve an action for judicial enforcement of the type precluded by G. L. c. 40AJ_§_74 6

Whether the city has a right to proceed with the present action turns on the availability of an administrative remedy at the local level. We find such a remedy in G. L. c. 40A, § 8, which we set out in full, italicizing that portion upon which our conclusion is based:

“An appeal to the permit granting authority as the zoning ordinance or by-law may provide, may be taken by any person aggrieved by reason of his inability to obtain a permit or enforcement action from any administrative officer under the provisions of this chapter, by the regional planning agency in whose area the city or town is situated, or by any person including an officer or board of the city or town, or of an abutting city or town aggrieved by an 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.”

As used throughout G. L. c. 40A, the permit granting authority “shall mean the board of appeals or zoning adminis[240]*240trator,” G. L. c. 40A, § 1A, in this instance, the board of appeals comprised of “three members who shall be citizens of Woburn.” § 10.09 of the zoning ordinance. Moreover, the city council, in its capacity as the special permit granting authority, see G. L. c. 40A, § 1A, and § 10.08 of the zoning ordinance, constitutes a “board of the city” within the meaning of G. L. c. 40A, § 8. See 8A McQuillin, Municipal Corporations § 25.217 (3d rev. ed. 1976). By reason of § 10.08, as well as G. L. c. 40A, § 6, which vests in the city council as the special permit granting authority the power to grant extensions or enlargements of nonconforming uses upon the making of certain required findings of vital interest to the locality, we . also conclude, that the special permit granting authority (the city council) has a “legitimate interest in preserving the integrity of the district” from what it believes to be an impermissible enlargement of a nonconforming use (Waltham Motor Inn, Inc. v. LaCava, 3 Mass. App. Ct. 210, 217 [1975]; Rafferty v. Sancta Maria Hosp., 5 Mass. App. Ct. 624, 629 [1977]), and is, therefore, “aggrieved by an order or decision of the inspector of buildings” within the scope of G. L. c. 40A, § 8. Cf. Morganelli v. Building Inspector of Canton, 7 Mass. App. Ct. 475, 481-482 (1979).

We see nothing in G. L. c. 231A or in G. L. c. 40A which either justifies or requires an exemption from compliance therewith by municipalities or by their zoning boards or other officials. Additionally, our reading of these provisions is consistent with the general purpose of the revised c. 40A, as discussed in Neuhaus v. Building Inspector of Marlborough, 11 Mass. App. Ct. at 231-235. See also William C. Bearce Corp. v. Building Inspector of Brockton, 11 Mass. App. Ct. 930 (1981); McDonald’s Corp. v.

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Bluebook (online)
451 N.E.2d 437, 16 Mass. App. Ct. 236, 1983 Mass. App. LEXIS 1377, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-woburn-v-mcnutt-bros-equipment-corp-massappct-1983.