Inspector of Bldg., Salem v. Salem St. College

546 N.E.2d 388, 28 Mass. App. Ct. 92, 1989 Mass. App. LEXIS 660
CourtMassachusetts Appeals Court
DecidedNovember 24, 1989
Docket89-P-1086
StatusPublished
Cited by6 cases

This text of 546 N.E.2d 388 (Inspector of Bldg., Salem v. Salem St. College) 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
Inspector of Bldg., Salem v. Salem St. College, 546 N.E.2d 388, 28 Mass. App. Ct. 92, 1989 Mass. App. LEXIS 660 (Mass. Ct. App. 1989).

Opinions

Kass, J.

In County Commissioners of Bristol v. Conservation Commn. of Dartmouth, 380 Mass. 706, 713 (1980), the court, examining G. L. c. 40A, § 3, decided that municipal zoning regulations did not extend to land or structures on “land . . . owned or leased by the Commonwealth or by its bodies politic and devoted to an essential governmental function.” The question now presented is whether there is latent in § 3 a power of cities and towns to regulate the dimensional and parking criteria for buildings constructed by the Massachusetts State College Building Authority (the “Au[93]*93thority”). We conclude that § 3 does not contain such a specialized municipal prerogative and that Salem State College (the “College”) and the Authority may proceed with their dormitory construction project on the College’s south campus.2

We pause to explain the mildly unorthodox procedural basis on which we have considered the appeal. Under § IX A of the Salem zoning ordinance, the inspector of buildings (the “inspector”) is the zoning administrator of that city. The Authority began construction of six four-story dormitory buildings and one single-story commons building on July 14, 1989. A few days later, the inspector served a stop work order on the general contractor who was doing the work. Concerning his power so to do, there was a not wholly amiable difference of opinion. On July 19, 1989, the inspector filed an action in Superior Court requesting that all work on the College job be enjoined because it did not comply with applicable municipal zoning requirements.

After hearing, a judge of the Superior Court denied in-junctive relief, stating as his reason that the city had by amendment of its zoning ordinance deleted provisions exempting .the College campus from the general provisions of the ordinance, that this was “action taken specifically against the College, and was unreasonable.” On a petition of the inspector to this court, treated as one seeking relief under G. L. c. 231, § 118, first par., a single justice allowed the order denying preliminary injunctive relief to stand, although the single justice put his action on the different substantive ground which we here consider. The inspector then availed himself of the right, under G. L. c. 231, § 118, second par., to appeal the denial of a preliminary injunction in the Superior Court to a full panel of the Appeals Court.

Construction, meanwhile, was proceeding apace. To reduce the risk of serious loss of public resources, should the inspector turn out to be correct on the law and should it be neces[94]*94sary to require the dismantling of improvements already built, another single justice of this court allowed a motion for an expedited appeal.

Ordinarily, on an appeal from the grant or denial of preliminary injunctive relief, the only question before us is whether there is a supportable legal basis for the action of the trial court judge. That judge’s action is upheld even though there exists a possibility that, on final analysis, it might prove to have been mistaken. Westinghouse Bdcst. Co. v. New England Patriots Football Club, Inc., 10 Mass. App. Ct. 70, 75 (1980). Carabetta Enterprises, Inc. v. Schena, 25 Mass. App. Ct. 389, 392 (1988). See also Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 615-616 (1980); Edwin R. Sage Co. v. Foley, 12 Mass. App. Ct. 20, 25-26 (1981). Consequently, appellate pronouncements at the preliminary injunction stage have a Delphic quality so far as what the law is. When, as here, a public construction project is under way and public funds are being invested in it at a brisk weekly clip, a judicial determination that the judge below was not cosmically wrong, although we do not say that he was right, is less than satisfactory. Because of the substantial public interest involved and because the facts as developed permit us so to do, we have decided the ultimate question: whether the Authority is bound by the provisions of the Salem zoning ordinance.

Until March 14, 1988, the Salem zoning code exempted College dormitories from the dimensional requirements which otherwise applied to the R-l zoning district in which the College is located. The amendment, which became effective on that date, removed the exemption.3 It had been adopted in response to public dissemination of the Author[95]*95ity’s project, as revealed in submissions to the Salem conservation commission and to the Massachusetts Environmental Policy Act (MEPA) unit of the Executive Office of Environmental Affairs. The inspector’s stop work order and his complaint allege violations of restrictions on height, on distances between buildings, and on a site plan review procedure which applies to any building which contains more than six dwelling units.4

Section 2 of the act which established the Authority, St. 1963, c. 703, provides that the “body politic and corporate” created “shall not be subject to the supervision or regulation of the department of education or of any department, commission, board, bureau or agency of the commonwealth except to the extent and in the manner provided in this act. The Authority is hereby constituted a public instrumentality and the exercise by the Authority of the powers conferred by this act shall be deemed and held to be the performance of an essential governmental function” (emphasis supplied).

As a general proposition, the State and State instrumental-ities are immune from municipal zoning regulations, unless a statute otherwise expressly provides the contrary. Medford v. Marinucci Bros. & Co., 344 Mass. 50, 55-57 (1962). Within G. L. c. 40A, § 3, as appearing in St. 1975, c. 808, § 3, there is language that suggests the possibility of some limit on the traditional State immunity. The second paragraph of G. L. c. 40A, § 3, speaks not to State immunity generally and, therefore, leaves that immunity squarely in place as to the general category of State uses, e.g., jails, hospitals, sewerage facilities, highway maintenance depots, court houses, and State office facilities. Section 3 does make specific mention of religious and educational purposes, unrelated to the State, which it exempts from municipal zoning control.5

[96]*96That exemption is the descendent of the Dover Amendment, the origins and development of which are discussed in The Bible Speaks v. Board of Appeals of Lenox, 8 Mass. App. Ct. 19, 27 n.10 (1979), and Newbury Junior College v. Brookline, 19 Mass. App. Ct. 197, 198-199 nn. 3 & 4 (1985). Prior to the 1975 recodification of the Zoning Act, the religious and educational use exemption had been subjected to a certain gloss through case decision that permitted limited application of dimensional and parking requirements, if reasonable and not masquerading a design to exclude the protected use. See Sisters of the Holy Cross of Massachusetts v. Brookline, 347 Mass. 486, 492-494 (1964); Radcliffe College v. Cambridge, 350 Mass. 613, 618 (1966). As recod-ified in 1975, the Dover Amendment permits municipalities to subject religious and educational institutions to “reasonable regulations” concerning dimensional requirements and parking. See n. 5, supra, and Newbury Junior College v. Brookline, 19 Mass. App. Ct. at 198-199 nn. 3 & 4.

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Inspector of Bldg., Salem v. Salem St. College
546 N.E.2d 388 (Massachusetts Appeals Court, 1989)

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546 N.E.2d 388, 28 Mass. App. Ct. 92, 1989 Mass. App. LEXIS 660, Counsel Stack Legal Research, https://law.counselstack.com/opinion/inspector-of-bldg-salem-v-salem-st-college-massappct-1989.