Dresser v. Inspector of Buildings of Southbridge

• Decision Date: 02 April 1965
• Citation: 348 Mass. 729,205 N.E.2d 724
• Parties: Richard DRESSER et al. v. INSPECTOR OF BUILDINGS OF SOUTHBRIDGE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 724

205 N.E.2d 724

348 Mass. 729

Richard DRESSER et al. v. INSPECTOR OF BUILDINGS OF SOUTHBRIDGE et al.

Supreme Judicial Court of Massachusetts, Worcester.

Argued Jan. 5, 1965.

Decided April 2, 1965.

Harold C. Peterson, Jr., Town Counsel, for respondents.

Harry Zarrow, Worcester, for petitioners.

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

WHITTEMORE, Justice.

There was no error in the order for the issuance of a writ of mandamus requiring the inspector of buildings and the selectmen to take action to enforce the zoning by-law pertaining to a five apartment building at 7 Coombs Street in a two family residence district. The respondents' appeals assert error in the overruling of their plea in bar (entitled 'Answer in Abatement') and their demurrer, and in the order that the writ issue.

Failure of the petitioners to appeal from the granting of a permit for the building of the apartment house does not bar mandamus at their instigation. BRADY V. BOARD OF APPEALS OF WESTPORT, MASS., 204 N.E.2D 513^A.

No basis is shown for refusing relief on the ground of dilatoriness of the petitioners, or estoppel because of their inaction. We need not decide whether the principle underlying the ruling in Chilson v. Zoning Bd. of Appeal of Attleboro, 344 Mass. 406, 409-410, 182 N.E.2d 535 (a c. 40A, § 21, appeal; at least nine years acquiescence and a change in owners), could in some circumstances be applicable in a mandamus case. No unreasonable delay is shown or is inferable. The permit for the offending building had been issued March 5, 1962. Between that date and February 25, 1964, when the petition herein was filed in the Superior Court, the building had been constructed; a petition for a variance had been granted by the board of appeals; the board's order had been annulled in the Superior Court by decree of November 5, 1963; a copy of the decree had been sent to the inspector of buildings on or before December 5, 1963. Mandamus proceedings are in the general public interest to enforce the public right (BRADY CASE, SUPRA ), 204 N.E.2D 513.^B For the rule that estoppel cannot stay the hand of a municipality in enforcing its zoning laws, see Ferrante v. Board of Appeals of Northampton, 345 Mass. 158, 162-163, 186 N.E.2d 471.

The respondents contend that their demurrer should have been sustained for failure of the petition to allege a demand that the respondents perform their duty and their refusal to do so. See the BRADY CASE, SUPRA , 204 N.E.2D 513.^C Sending notice to the building inspector of the annulment of the variance, as alleged in the petition, was not direct notice of a violation. But the sender could rightly assume that the building inspector knew the provisions of the zoning by-law and the significance of the decree in removing a basis for a claim of right in the use of the five apartment building. We deem it...