Balcam v. Town of Hingham

• Decision Date: 30 October 1996
• Docket Number: No. 94-P-1343,94-P-1343
• Citation: 41 Mass.App.Ct. 260,669 N.E.2d 461
• Parties: H. James BALCAM & another 1 v. TOWN OF HINGHAM & another. 2
• Court: Appeals Court of Massachusetts

Page 461

669 N.E.2d 461

41 Mass.App.Ct. 260

H. James BALCAM & another ¹ v. TOWN OF HINGHAM & another. ²

No. 94-P-1343.

Appeals Court of Massachusetts Plymouth.

Argued Nov. 16, 1995.

Decided Sept. 5, 1996.

Further Appellate Review Granted

Oct. 30, 1996.

Michael F.X. Dolan, Jr., Quincy, for defendants.

Earle C. Cooley, Boston, for plaintiffs.

Before BROWN, LAURENCE and LENK, JJ.

LENK, Justice.

The defendants appeal from a Superior Court order granting the plaintiffs' request for a mandatory preliminary injunction. The defendants appealed to a single justice of the Appeals Court pursuant to G.L. c. 231, § 118, par. 1 and Mass.R.A.P. 6(a), 378 Mass. 930 (1979), who stayed the preliminary injunction pending appeal to a panel of this court. We now review the Superior Court judge's decision pursuant to c. 231, § 118, par. 2, under an abuse of discretion standard, Biotti v. Selectmen of Manchester, 25 Mass.App.Ct. 637, 640, 521 N.E.2d 762 (1988), subjecting the trial court's conclusions of law to "broad review and revers[ing] if incorrect." Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 616, 405 N.E.2d 106 (1980). Because the trial judge's order was based solely on documentary evidence, we are free to "draw our own conclusions from the record." Ibid. ³ The defendants argue that the trial court was without subject matter jurisdiction to issue injunctive relief. We agree, and vacate the preliminary injunction.

The plaintiffs purchased a lot adjacent to their Hingham home in 1978. Over the course of about ten years, from the early 1980's to 1991, the plaintiffs constructed a carriage house on the lot, apparently with the intention of using it as a rental property. During the early part of the construction, from May 1983 to June 1985, the plaintiffs successfully negotiated resolution of the town conservation commission's opposition to their building a septic system on the lot, which is composed largely of wetlands. The plaintiffs obtained two building permits, one at the beginning of the project, in the early 1980's, and a second permit in July 1991, for completion of the work. However, when it came time for the plaintiffs to obtain the building commissioner's final approval ⁴ of the completed renovations, and the occupancy permit they required to use the building for residential purposes, the building commissioner refused, informing the plaintiffs that they were in violation of two town by-laws, and that they would need to resolve these violations before he could take the actions requested. ⁵ Additionally, he informed them that a number of sign-offs from other town officials were required before he could act. The specific by-law violations are (1) the plaintiffs' building comes within ten feet of the wetlands on their property, when the wetlands by-law requires a 50-foot setback; and (2) the lot surrounding the new building is smaller than the 40,000 square feet (less wetlands) required by the zoning by-law.

Without pursuing the proper avenues of appeal with respect to the zoning and conservation by-law violations, the plaintiffs instead sought a declaratory judgment pursuant to G.L. c. 231A, ordering the building commissioner to issue the occupancy permit. The trial court granted the plaintiffs a mandatory preliminary injunction, ordering the building commissioner to issue the plaintiffs an occupancy permit pending completion of a full trial on the merits. However, the trial judge failed to address the threshold jurisdictional issue raised by the defendants, finding instead that the plaintiffs had shown a substantial likelihood of success on the merits. ⁶ It was error for the trial judge to reach the merits of the case without first making a ruling of law on the jurisdictional issue, which we find dispositive, and now discuss.

Before they could demonstrate entitlement to final approval of the building permit, and then the occupancy permit they require, the plaintiffs would first have to comply with, or obtain waivers or variances from, the town zoning and conservation by-laws. To do so, the plaintiffs needed to pursue two independent avenues of appeal. ⁷ As each has time limits for appeal which have long since expired, the plaintiffs have waived their opportunity to seek judicial review.

The plaintiffs applied to the conservation commission (and were denied) ⁸ a waiver from the setback requirements of the wetlands by-law. The judicial remedy afforded the plaintiffs is an appeal from the commission's decision by an action in the nature of certiorari under G.L. c. 249, § 4. Lovequist v. Conservation Commn. of Dennis, 379 Mass. 7, 15-16, 393 N.E.2d 858 (1979). The deadline for filing such an action was 60 days from the denial of the waiver. Nothing before us suggests that the plaintiffs ever appealed the commission's decision by bringing an action in the nature of certiorari, and, accordingly, the plaintiffs have waived their judicial remedy with respect to the wetlands by-law violation. The plaintiffs argue, however, that, after the conservation commission participated in and signed off on a 1985 final order of conditions issued by the Department of Environmental Quality Engineering (now Department of Environmental Protection, DEP), which allowed the plaintiffs to construct their septic system in the property's wetlands, they were exempt from any further interference from the conservation commission. Thus, the plaintiffs argue, if they complied with the DEP final order of conditions and its companion agreement and stipulation by refraining from any "further filling or altering of the wetlands" on the property, the conservation commission and the building commissioner were effectively estopped from asserting any other restrictions grounded in either State law or local by-laws. However, there is no such law of estoppel in the Commonwealth, and there is nothing in the order or the agreement that would persuade us otherwise. ⁹ See Ferrante v. Board of Appeals of Northampton, 345 Mass. 158, 162-163, 186 N.E.2d 471 (1962), and cases cited ("doctrine of estoppel cannot stay the hand of a municipality in enforcing its zoning laws"). Raia v. Board of Appeals of North Reading, 4 Mass.App.Ct. 318, 321, 347 N.E.2d 694 (1976) (fact that foundation had been poured pursuant to a building permit "but in contravention of the applicable zoning ordinance" did not preclude the town from revoking the permit). The plaintiffs were thus required to obtain a waiver from the wetlands by-law setback requirement before they could obtain an occupancy permit.

As to the zoning violation, the plaintiffs first argue that it was the conservation commission that was aggrieved by issuance of the plaintiffs' building permit, and thus it was the conservation commission, and not the plaintiffs, that had the burden to bring an administrative appeal under G.L. c. 40A. However, the conservation commission objected not to a violation of the minimum lot size required by the zoning by-law, but to a setback violation of the wetlands by-law. As already alluded to above (see note 7, supra ), the avenues of appeal for violations of various by-laws and State laws are discrete. Thus, no appeal of a wetlands by-law violation could be made pursuant to c. 40A, which is limited to violations of zoning laws. Compare P & D Service Co., Inc. v. Zoning Bd. of Appeals of Dedham, 359 Mass. 96, 104, 268 N.E.2d 153 (1971) (zoning board of appeals had no jurisdiction to hear appeal of building permit revocation, where revocation was based on alleged violation of State Sanitary Code). Moreover, neither the town, nor any of its boards, has any reason to be aggrieved as the building commissioner has acted to enforce the zoning by-law by preventing the plaintiffs from occupying their building until they come into compliance with the by-law. It is only when the building commissioner refuses to enforce the town's by-laws, that the town becomes an aggrieved party. See, e.g., Woburn v. McNutt Bros. Equip. Corp., 16 Mass.App.Ct. 236, 237, 451 N.E.2d 437 (1983); Selectmen of Tewksbury v. Granfield, 17 Mass.App.Ct. 1011, 460 N.E.2d 199 (1984).

The plaintiffs next argue that they were not required to pursue an administrative appeal because they were not given written notice of the zoning by-law violation as required by c. 40A, § 7. The writing requirement of § 7, however, pertains only to communications between the zoning enforcement officer and concerned third parties seeking enforcement of the zoning laws. It does not apply to persons in the plaintiffs' circumstances, who are allegedly in violation of the zoning laws. ¹⁰ Section 8, which does apply to aggrieved permit applicants such as the plaintiffs, affords them no relief. See Goldman v. Planning Bd. of Burlington, 347 Mass. 320, 326, 197 N.E.2d 789 (1964). ¹¹ Under c. 40A, §§ 8, 15, applicants aggrieved by the denial of a permit have 30 days from the denial to appeal to the zoning board of appeals. ¹² There is no evidence in the record that the plaintiffs mounted such an appeal. They have, therefore, waived their right to seek judicial review pursuant to c. 40A, § 17. ¹³ Nor have the plaintiffs shown that they come within the scope of cases where exceptions to the ordinary requirements for administrative exhaustion pertain. "As a general rule, where an administrative procedure is available, we require a party seeking declaratory relief first to exhaust the opportunities for an administrative remedy." Space Bldg. Corp. v. Commissioner of Rev., 413 Mass. 445, 448, 597 N.E.2d 435 (1992), citing Villages Dev. Co. v. Secretary of the Executive Office of Envtl. Affairs, 410 Mass. 100, 106, 571 N.E.2d 361 (1991), and East Chop Tennis Club v. Massachusetts Commn. Against Discrimination, 364 Mass. 444, 450, 305 N.E.2d 507 (1973). Exceptions to the exhaustion requirement are sometimes made in extraordinary circumstances, as when the administrative remedy is inadequate (e.g., the administrative board does not have...