Building Inspector of Lancaster v. Sanderson

Decision Date14 March 1977
Citation372 Mass. 157,360 N.E.2d 1051
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Robert B. Smith, Boston, for defendant.

Thomas F. McEvilly, Leominster, for plaintiff.

Before HENNESSEY, C.J., and QUIRICO, BRAUCHER, KAPLAN and LIACOS, JJ.

QUIRICO, Justice.

This is an action by the building inspector of the town of Lancaster seeking to enjoin the defendant from using land in that town for airport runway purposes in alleged violation of the town's zoning by-law. The by-law designates the building inspector to be the enforcement officer thereof, and this action is brought by the inspector pursuant to G.L. c. 40A, § 22, as amended through St.1970, c. 678, § 1. 1 After a hearing on the merits a judge of the Superior Court made a decision entitled 'Findings of Fact, Rulings, and Order for Judgment' in favor of the plaintiff and judgment was entered in accordance therewith granting the injunctive relief requested. The defendant appealed to the Appeals Court and the case was transferred to this court on our motion. G.L. c. 211A, § 10(A).

We summarize the facts found by the judge. Prior to 1969 the defendant owned and operated an airport located entirely within the town of Shirley. In 1969 he purchased from the Commonwealth a parcel of land in Lancaster abutting his Shirley airport property. At all times material to this case this land in Lancaster was classified as either residential or residential-recreational under the Lancaster zoning by-law, and neither airports nor airport runways were permitted in those zones. In 1970 the Lancaster zoning board of appeals (board) granted the defendant a variance authorizing him to extent his airport runway from the Shirley town line southerly into Lancaster for a distance of 600 feet on the property which he had acquired from the Commonwealth. Sometime between 1970 and 1974 the defendant further extended the same runway southerly on the same parcel of land an additional distance of 1,400 feet without obtaining any variance or other permit therefor from the town of Lancaster. In 1974 he applied to the board for a further variance to cover the runway extension of 1,400 feet which he had already constructed. The petition was denied and he took no appeal from the denial. The defendant obtained the annual certificates of approval for his airport from the Massachusetts Aeronautics Commission (commission) as required by G.L. c. 90, § 39B. The certificate for 1974--1975 referred to a runway 3,660 feet in length, and the one for 1975--1976 referred to a runway 2,460 feet in length. The earlier certificates did not state the length of the runway.

The judge ruled that the approval by the commission 'does not obviate the necessity of complying with the zoning ordinances, statutes and other lawful ordinances and regulations,' and that the extension of the runway in Lancaster beyond the 600 feet authorized by the variance was unlawful. He ordered the entry of judgment enjoining the extension beyond 600 feet. The defendant contends that (a) the town is estopped from enforcing the zoning by-law against him, (b) the land is exempt from the zoning by-law, and (c) the zoning by-law does not apply to his use because he was discharging a public function.

For the reasons stated below, we hold that there was no error and we affirm the judgment.

The record appendix is limited to the judge's decision, the judgment and notice of appeal therefrom, certain exhibits, the transcript and the docket entries. The omission of the complaint and answer is not explained. 2 The findings of fact included in the judge's decision are based in large part on oral testimony. We therefore consider them in light of the provision of Mass.R.Civ.P. 52(a), 365 Mass. 816 (1974), that '(f)indings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.' The parties did not file a motion requesting the judge to amend his findings or to make additional findings (Mass.R.Civ.P. 52(b), 365 Mass. 816 (1974)), nor do they now contend that any finding or conclusion made by the judge is unsupported by, or contrary to, the evidence (Mass.R.A.P. 8(b), 365 Mass. 849 (1974)).

The language of rule 52(a) to the effect that '(f)indings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses,' is identical to the language of rule 52(a) of the Federal Rules of Civil Procedure which has been in effect since 1938 and which had been the subject of interpretation and application in many decisions by Federal courts before we adopted our rule effective July 1, 1974. 'This court having adopted comprehensive rules of civil procedure in substantially the same form as the earlier Federal Rules of Civil Procedure, the adjudged construction theretofore given to the Federal rules is to be given to our rules, absent compelling reasons to the contrary or significant differences in content. Rollins Environmental Servs. Inc. v. Superior Court, --- Mass. ---, --- a, 330 N.E.2d 814 (1975). We therefore examine several of the pertinent Federal court decisions.

One of the most frequently quoted definitions of the words 'clearly erroneous' is the following which was stated in United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948): 'A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.' In Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123, 89 S.Ct. 1562, 1576, 23 L.Ed.2d 129 (1969), there is this further statement: 'In applying the clearly erroneous standard to the findings of a district court sitting without a jury, appellate courts must constantly have in mind that their function is not to decide factual issues de novo. The authority of an appellate court, when reviewing the findings of a judge as well as those of a jury, is circumscribed by the deference it must give to decisions of the trier of the fact, who is usually in a superior position to appraise and weigh the evidence. The question for the appellate court under Rule 52(a) is not whether it would have made the findings the trial court did, but whether 'on the entire evidence (it) is left with the definite and firm conviction that a mistake has been committed. " Guzman v. Pichirilo, 369 U.S. 698, 702--703, 82 S.Ct. 1095, 8 L.Ed.2d 205 (1962). Commissioner v. Duberstein, 363 U.S. 278, 290--291, 80 S.Ct. 1190, 4 L.Ed.2d 1218 (1960). United States v. National Ass'n of Real Estate Bds., 339 U.S. 485, 495--496, 70 S.Ct. 711, 94 L.Ed. 1007 (1950).

As thus defined, the words 'clearly erroneous,' which appeared first in Federal rule 52(a) and which were adopted as part of our rule 52(a) in 1974, require the same standard for appellate review formerly applied by this court in its numerous decisions when deciding whether findings by a trial judge were 'plainly wrong.' This is illustrated by the following language in our opinion in Hanrihan v. Hanrihan, 342 Mass. 559, 564, 174 N.E.2d 449, 452 (1961): '(O)ur duty is to examine the evidence and decide the case according to our own judgment, accepting the findings of the trial judge, whether based wholly or partly upon oral testimony, as true, unless they are shown to be plainly wrong, and finding for ourselves such other and additional facts as we deem to be justified by the evidence.' Marlow v. New Bedford, --- Mass. ---, ---, b 340 N.E.2d 494 (1976).

We conclude that the findings made by the judge are not clearly erroneous within the meaning of Mass.R.Civ.P. 52(a), and we pass to the consideration of the several grounds argued by the defendant in support of his appeal.

1. Estoppel. The defendant's first argument is that certain actions and conduct by officials of the town of Lancaster operate as an estoppel against the plaintiff building inspector's attempts to enforce the zoning by-law in any manner which would prohibit the airport runway extension which is involved in this case. We reject this argument for the several reasons discussed below.

(a) Estoppel is a defense which, under Mass.R.Civ.P. 8(c), 365 Mass. 749 (1974), must be affirmatively pleaded. The record on appeal in this case does not include the complaint or defendant's answer, and it does not otherwise state or indicate that the defense of estoppel was affirmatively pleaded.

(b) If it were determined that the defendant affirmatively pleaded estoppel, he would probably gain nothing thereby because of our frequent and consistent holdings that a municipality cannot ordinarily be estopped by the acts of its officers from enforcing its zoning by-law or ordinance. In Cullen v. Building Inspector of N. Attleborough, 353 Mass. 671, 675, 234 N.E.2d 727, 729 (1968), we said: 'The right of the public to have the zoning by-law properly enforced cannot be forfeited by the action of its officers.' In Ferrante v. Board of Appeals of Northampton, 345 Mass. 158, 162--163, 186 N.E.2d 471, 474 (1962), we said: 'The trial judge seems to have rested his decision to some extent on estoppel by reason of the fact that the plaintiffs had been granted a building permit by the 'appropriate . . . (city) official.' This court has held that the doctrine of estoppel cannot stay the hand of a municipality in enforcing its zoning laws. . . . And this is the prevailing view elsewhere. See Rathkopf, The Law of Zoning and Planning, c. 67, and cases collected in 119 A.L.R. 1509 et seq. (1939). The reasons for the inapplicability of estoppel in cases of this sort have been well stated by the Supreme Court of New Jersey in Zahodiakin Engr. Co. v. Zoning Bd. of Adjustment...

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