Cullen v. Building Inspector of North Attleborough

• Decision Date: 16 February 1968
• Citation: 234 N.E.2d 727,353 Mass. 671
• Parties: John CULLEN et al. v. BUILDING INSPECTOR OF NORTH ATTLEBOROUGH et al. (and a companion case 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 727

234 N.E.2d 727

353 Mass. 671

John CULLEN et al. v. BUILDING INSPECTOR OF NORTH ATTLEBOROUGH et al. (and a companion case ¹).

Supreme Judicial Court of Massachusetts, Bristol.

Argued Dec. 7, 1967.

Decided Feb. 16, 1968.

Allan van Gestel, Boston, for Cumberland Cattle Co.

Max Volterra, Boston, for John Cullen and others.

Jarvis Hunt, Town Counsel, Boston, for Building Inspector of North Attleborough and another.

Before WILKINS, C.J., and SPALDING, WHITTEMORE, SPIEGEL and REARDON, JJ.

SPALDING, Justice.

These two cases were heard together. One is a petition for a writ of mandamus to compel the respondent building inspector to enforce the zoning by-law of North Attleborough. The other is a bill in equity brought by Comberland Cattle Company (Cumberland) under G.L. c. 40A, § 21, appealing from the decision of the zoning board of appeal (board) of the town which held that a permit issued by the building inspector to Cumberland for the construction of an extension to a dairy barn without prior approval of the board was invalid. Cumberland was allowed to intervene as a party respondent in the mandamus case. The cases were referred to an auditormaster (hereinafter called auditor) who filed one report covering the issues in both cases. ² The cases were then considered by the judge on the basis of the auditor's report. He denied the petition for mandamus as matter of discretion and entered a decree in the equity case sustaining the decision of the board. From the judgment in the mandamus case the petitioners appealed. G.L. c. 213, § 1D. From the decree in the equity case, Cumberland appealed.

I.

THE MANDAMUS CASE.

The petition for mandamus alleged that all new construction, extensions and renovations made on the Cumberland premises July, 1963, violate § VI of the town's zoning by-law. The petition also singles out as violations of the zoning by-law three building permits numbered, respectively, 355 (granted on January 1, 1964, and received on November 6, 1964, for renovations to an existing structure), 360 or 362 (issued November 13, 1964, for the construction of a new cow barn), and 389 (issued December 12 or 24, 1964, for an addition to the new cow barn). The prayers for relief requested that a writ of mandamus issue directing the building inspector to order the removal of all buildings constructed in violation of the zoning law, and to order Cumberland to return to the scale of operations existing prior to the time the by-law took effect, and such other relief as the court 'deems just and necessary.'

On July 26, 1963, the effective date of the zoning by-law, Cumberland's premises were a nonconforming use and, as such, were subject to § VI of the by-law which reads: 'Continuation of Non-Conforming Uses: Any lawful building or use of a building or premises or part thereof existing at the time this by-law or any amendment thereto is adopted may be continued although such building or use does not conform to the provisions thereof and such building and use may on approval of the Board of Appeal be extended throughout such premises.'

The petitioners argue that, under § VI, Cumberland was required to seek approval from the board (a) to renovate existing buildings; (b) for any substantial expansion of its nonconforming use; and (c) to construct a new nonconforming building. ³ The auditor found that the board never granted special permits for any of the construction in question, and that no such permits were ever requested by Cumberland.

Cumberland argues that mandamus is not an appropriate remedy. To this end it asserts that all the petitioners seek are it asserts that all the petitioners seek are of the decisions of the building inspector in granting the three permits which are challenged. This, it is urged, should have been done under G.L. c. 40A, § 13. We are of opinion that mandamus is an appropriate means for the petitioners to call in question, as here, the expanded uses and the issuance of building permits. See the extended discussion of the role of mandamus in zoning cases set forth in Brady v. Board of Appeals of Westport, 348 Mass. 515, 518--522, 204 N.E.2d 513. See also Crawford v. Building Inspector of Barnstable, Mass., ^a 226 N.E.2d 240.

Cumberland also urges that the denial of the writ of mandamus was proper because it acted in good faith and the individual members of the board and the town counsel were aware of Cumberland's activities. ⁴ This argument cannot prevail. The right of the public to have the zoning by-law properly enforced cannot be forfeited by the action of its officers. See Ferrante v. Board of Appeals of Northampton, 345 Mass. 158, 163, 186 N.E.2d 471; New City Hotel Co. v. Alcoholic Beverages Control Comm., 347 Mass. 539, 542, 199 N.E.2d 184. See also Town of Lincoln v. Giles, 317 Mass. 185, 187, 57 N.E.2d 554.

(1) Renovation of Existing Building.

On November 6, 1964, Cumberland received permit No. 355 which authorized certain renovations to an existing barn. As noted, § VI of the zoning by-law provides that a nonconforming building or use 'may on approval of the Board of Appeal be extended throughout * * * (the) premises.' We are of opinion that the renovations to the existing barn do not constitute such an extension of the nonconforming building as to fall within the scope of § VI. With respect to the renovations, therefore, Cumberland was not required to seek approval from the board.

(2) Expansion of Cumberland's Activities.

Cumberland's expansion subsequent to the enactment of the zoning by-law was substantial. Prior to 1963 there were sixty to seventy milking cows on the premises. At the time of the hearing before the auditor the dairy herd had increased to approximately 750 to 800 heard. Cumberland has additional land and now uses twice as much as it did prior to 1963. The operation is now that of a modern and technically advanced dairy farm. There is a large and varied assortment of farm equipment, including trucks, tractors, hay wagons and harvesters. Approximately 800 acres of corn and 200 acres of wheat and grass are planted. Subsequent to the enactment of the zoning by-law one barn was torn down and a new barn measuring 550 feet by 80 feet has been constructed. And four grain silos and a machinery house were constructed after the petition for mandamus was brought.

The sizable expansion of the nonconforming use was clearly subject to § VI of of the zoning by-law which allows a nonconforming use to be 'extended throughout * * * (the) premises' only upon approval of the board. Cumberland argues that this section of the zoning by-law is inapplicable by reason of G.L. c. 40A, § 5. We are of opinion that Cumberland's expension is so great as to constitute a change of use for purposes of § 5. Although mere increase in the amount of business done is not in itself proof of change in use, Cochran v. Roemer, 287 Mass. 500, 192 N.E. 58; Building Com'r of Medford v. McGrath, 312 Mass. 461, 45 N.E.2d 265, the extensive activities initiated by Cumberland compel the conclusion that there was a change. The dairy herd has increased tenfold, the land used has more than doubled and new buildings have been erected. Moreover, after the enactment of the zoning by-law Cumberland installed a new system of milk production. For purposes of the zoning laws the aggregate of all of these operations amounts to a difference in quality rather than in degree alone. Town of Marblehead v. Rosenthal, 316 Mass. 124, 55 N.E.2d 13; Bowes v. Inspector of Bldgs. of Brockton, 347 Mass. 295, 197 N.E.2d 676; Town of Bridgewater v. Chuckran, 351 Mass. 20, 23, 217 N.E.2d 726.

Cumberland argues that § VI of the by-law conflicts with the second proviso of G.L. c. 40A, § 5, added by St.1962, c. 340. That proviso reads as follows: 'and provided, further, that no such * * * by-law shall prohibit the alteration, rebuilding or expansion within applicable setback requirements of non-conforming buildings, * * * or the expansion of land, used primarily for agriculture * * *' (emphasis supplied). It is to be noted that the 1962 amendment specifically refers to the prohibition of expansion of nonconforming agricultural uses. Section VI of the by-law cannot fairly be read as creating such a prohibition. By its language the by-law regulates the expansion of nonconforming uses by requiring board approval. We do not read the proviso as precluding the by-law requirement for board approval.

Cumberland suggests that this requirement amounts to a circumvention of § 5 because the board will not approve all extensions requested of it. The difficulty with this argument is that it envisions a case that is not before us. The board has not refused Cumberland permission to expand a nonconforming agricultural use. There is nothing amiss in requiring board approval. In the event that the action of the board amounts to a prohibition in violation of § 5, either by outright refusal to permit expansion or through regulations so onerous as to amount to a prohibition, a different question will be presented. ⁵ Cumberland was thus required to apply to the board for approval before undertaking the substantial changes on the premises.

(3) New Construction.

The petition for mandamus complains specifically of two building permits (Nos. 360 and 389) issued for the construction of a new barn. The language of G.L. c. 40A, § 5, exempts nonconforming buildings and uses; it does not exempt new buildings. Chapter 40A, § 5, as appearing in St. 1954, c. 368, § 2, provides in part that 'a zoning * * * by-law or any amendment thereof shall not apply to existing buildings or structures, nor to the existing use of any building or structure, or of land to the extent to which it is used at the time of adoption of the * * * by-law.' As was said, however, in Chilson v. Zoning Bd. of Appeal of Attleboro, 344 Mass. 406, 411--412, 182 N.E.2d 535, 539, 'The erection of a new building or alteration of an existing building for substantially greater...