Banquer Realty Co., Inc. v. Acting Bldg. Com'r of Boston

• Decision Date: 22 June 1983
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: BANQUER REALTY CO., INC. et al. 1 v. ACTING BUILDING COMMISSIONER OF BOSTON & others. 2

Page 422

451 N.E.2d 422

389 Mass. 565

BANQUER REALTY CO., INC. et al. ¹ v. ACTING BUILDING COMMISSIONER OF BOSTON & others.

²

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued March 10, 1983.

Decided June 22, 1983.

William J. Smith, Asst. Corp. Counsel, Boston, for defendants.

William E. Ryckman, Jr., Boston, Harold Meizler, Boston, with him, for plaintiffs.

Before HENNESSEY, C.J., and WILKINS, ABRAMS and O'CONNOR, JJ.

HENNESSEY, Chief Justice.

On March 27, 1981, three permits were issued to the plaintiffs for the construction of a concrete batching plant and appurtenant buildings on certain property in Dorchester. On April 8, 1981, the defendant, the acting building commissioner of Boston, issued a letter to the plaintiffs ordering them to cease construction and informing them that the permit for the concrete batching plant had been issued in error. On April 14, 1981, the acting commissioner informed the plaintiffs that their permits were revoked. The permits were initially issued on the ground that the plaintiffs' proposed concrete batching plant was a use as "a matter of right" under Use Items 68 or 69 of the Boston Zoning Code. The acting commissioner, however, subsequently determined that the plaintiffs' concrete batching plant was a conditional use under Use Item 70, which requires application to the board of appeals for a special permit. ³

On April 22, 1981, the plaintiffs brought this action in the Land Court, pursuant to G.L. c. 240, § 14A, and G.L. c. 185, § 1 (j 1/2), seeking a permanent injunction restraining the defendants from interfering with the plaintiffs' construction and operation of the concrete batching plant and appurtenant buildings, and an order requiring the defendants to issue building permits and certificates of occupancy to the plaintiffs for construction and operation of the concrete batching plant. The plaintiffs also sought damages and attorneys' fees. On April 23, 1981, the judge issued a preliminary injunction restraining the defendants from interfering with the construction of the plaintiffs' concrete batching plant. During a trial on the merits, seven witnesses testified, twenty-six exhibits were introduced, and the judge, in the presence of counsel, took a view of a similar concrete batching plant owned by plaintiff Lawrence Ready-Mix Concrete Corp. After trial, the judge determined that the permits were correctly issued and that the subsequent revocation of those permits was in error and void. We transferred the case to this court on our own motion.

On this appeal, the defendants make three challenges to the judge's determination. First, they contend that the Land Court was without jurisdiction under G.L. c. 240, § 14A, and G.L. c. 185, § 1(j 1/2), to entertain the plaintiffs' claim because the plaintiffs are not challenging the validity of the zoning code but only questioning the correctness of the acting building commissioner's interpretation of its provisions. The defendants also contend that the Land Court was without jurisdiction because the plaintiffs did not exhaust their administrative remedies under St.1956, c. 665, § 12. Finally, the defendants urge that, if the Land Court had jurisdiction, the findings of the judge are clearly erroneous. We disagree with all the defendants' contentions. Accordingly, we affirm the judgment of the Land Court.

The judge found the following facts. The plaintiff Lawrence Ready-Mix Concrete Corp. (Lawrence Ready-Mix) entered into an agreement with the plaintiff Banquer Realty Co., Inc. (Banquer Realty), to lease Banquer Realty's land at 55 Enterprise Street, Dorchester, for the purpose of erecting a concrete batching plant. Pursuant to that agreement, the plaintiff Herman Banquer, acting as authorized agent for Banquer Realty and for the benefit of Lawrence Ready-Mix, and the plaintiff Paul B. Morley, acting as agent for and as general counsel to Lawrence Ready-Mix, jointly applied to the city of Boston building department for a building permit to construct the plant. On February 5, 1981, the application was approved by David Wessling, assistant zoning administrator. On February 13, 1981, however, a letter bearing the name of the acting building commissioner was sent to the plaintiffs informing them that no permit would issue until approvals had been obtained from the Department of Environmental Quality Engineering, Boston air pollution control commissioner, the Boston public works department, and the water and sewer commissioner. All these approvals were obtained.

On March 10, 1981, the plaintiff Herman Banquer filed applications for permits to erect a building to be used as offices and lavatories for the plant, and a storage silo. Approvals were obtained from the various agencies previously described. On March 27, 1981, the permits for the concrete batching plant and appurtenant buildings were issued. On April 3, 1981, plaintiff Lawrence Ready-Mix signed a contract with Schiavone Construction Co. to supply and deliver to Schiavone concrete to be used in the construction of an extension of the Massachusetts Bay Transportation Authority system.

On April 8, 1981, the acting commissioner issued a letter to the plaintiffs informing them that the previous issuance of the permits was in error and ordering them to stop all construction at the site. The acting commissioner testified that the order was issued in response to letters from community organizations and others protesting the issuance of the permits. The judge, however, questioned the validity of the acting commissioner's reasons because the acting commissioner's letter was issued on the same date that six of the eight letters were received. One other letter was received on the day after and another the day before the acting commissioner's letter was dated.

On April 14, 1981, the acting commissioner issued a memorandum indicating that all applications for concrete batching plants and appurtenant structures would be processed under Use Item No. 70 of the Boston Zoning Code. The testimony of a zoning administrator revealed that before this memorandum was issued, concrete batching plants were not considered to fall within Use Item No. 70. On April 14, 1981, the acting commissioner also sent a letter to the plaintiffs declaring that the building permits were revoked because they had been issued in error.

The plaintiffs' property is located in a "General Industrial" district. All industrial uses described or listed in Use Items 68 and 69 are allowed as a matter of right in such districts. Uses described in Use Item 70 are allowed in a "General Industrial" district only on a conditional basis--approval from the board of appeals is a necessary prerequisite to issuance of a permit.

The proposed site is in the heart of an industrial area. There is not a residential district within 250 feet of the site. The abutters of the plaintiffs' property are businesses which have heavy traffic flow during the day. Until 1978, the Boston Sand & Gravel Company operated a concrete batching plant on property adjacent to the plaintiffs' proposed site.

1. The defendants argue that the Land Court does not have jurisdiction under G.L. c. 240, § 14A, ⁴ and G.L. c. 185, § 1(j 1/2), ⁵ over the plaintiffs' claim because it involves only an interpretation of the Boston Zoning Code, and not a challenge to the validity of the code. The defendants recognize that G.L. c. 240, § 14A, specifically provides landowners with a cause of action to determine "the validity of ... or ... the extent to which any [zoning] ordinance, by-law or regulation affects " a proposed use of their property (emphasis supplied). They contend, however, that this language should be read to allow only suits that challenge the local by-law as facially invalid or invalid in its application to a particular case. Mere "interpretation" cases, the defendants urge, should not fall within the Land Court's jurisdiction. We disagree.

The language of G.L. c. 240, § 14A, clearly grants the Land Court jurisdiction over two kinds of cases, validity and extent cases. The plaintiffs' claim falls in the latter category in that they seek a "determination of the extent to which [Use Items 68, 69, and 70 of the Boston Zoning Code] affect a proposed use" (concrete batching plant) of their property.

As authority for their contention that the Land Court's jurisdiction should be limited to cases that involve challenges to the validity of local laws, the defendants point to the fact that in virtually all of the reported cases under G.L. c. 240, § 14A, validity challenges have been made. We are aware of only one case under G.L. c. 240, § 14A, where the validity of a regulation was not at issue. Lupo v. Stow, 350 Mass. 722, 772, 773, 215 N.E.2d 88 (1966). There have been, however, several cases where both validity and interpretation issues were presented. See, e.g., Turnpike Realty Co. v. Dedham, 362 Mass. 221, 226-228, 284 N.E.2d 891 (1972), cert. denied, 409 U.S. 1108, 93 S.Ct. 908, 34 L.Ed.2d 689 (1973); Mioduszewski v. Saugus, 337 Mass. 140, 141, 148 N.E.2d 655 (1958); Pioneer Insulation & Modernizing Corp. v. Lynn, 331 Mass. 560, 562, 120 N.E.2d 913 (1954). See also Twomey v. Board of Appeals of Medford, 7 Mass.App. 770, 771, 390 N.E.2d 272 (1979). Furthermore, nothing in any of the cases decided under G.L. c. 240, § 14A, persuades us to disregard the unambiguous language of G.L. c. 240, § 14A, which allows landowners to bring two different causes of action. It appears that the lack of "interpretation" cases is fortuitous and not the result of any judicial or legislative judgment that the Land Court lacks jurisdiction over such claims.

2. The defendants next contend that even if the Land Court has jurisdiction over the plaintiffs' claim, that claim, nevertheless, should have been dismissed because the plaintiffs did not exhaust their administrative remedies. The defendants submit that the plaintiffs should have appealed the...