Kolodny v. Board of Appeals of Brookline

• Decision Date: 01 July 1963
• Citation: 191 N.E.2d 689,346 Mass. 285
• Parties: Nyman H. KOLODNY et al. v. BOARD OF APPEALS OF BROOKLINE et al. *
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 689

191 N.E.2d 689

346 Mass. 285

Nyman H. KOLODNY et al. v. BOARD OF APPEALS OF BROOKLINE et al. ^*

Supreme Judicial Court of Massachusetts, Norfolk.

Argued May 9, 1963.

Decided July 1, 1963.

Jack H. Backman, Boston, for plaintiffs.

Lewis H. Weinstein, Boston (Lawrence A. Sullivan, Boston, with him), for Lawrence.

Phillip Cowin, Town Counsel, for Board of Appeals of Brookline and others.

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

WHITTEMORE, Justice.

This appeal under G.L. c. 40A, § 21, seeks review of the decision of the board of appeals that it had no jurisdiction of an appeal by aggrieved residents of the town of Brookline from the denial by the building commissioner of their request that he revoke the thirteen building permits referred to in Bloom v. Planning Bd. of Brookline, Mass., 191 N.E.2d 684, as violative of the zoning by-law.

The bill alleged that the permits were 'approved' by the building inspector on March 27, 1962; the plaintiffs on April 10, 1962, requested in writing that the permits be revoked as granted unlawfully and in error; on April 26, 1962, the building commissioner, in writing, denied the request to revoke and the plaintiffs appealed to the board within ten days; the board denied the appeal, making findings and rulings. The request to revoke, the commissioner's response, and the board's decision are incorporated in the bill.

Demurrers were sustained, and a motion to amend the bill was denied as was leave further to amend. The final decrees dismissed the bill. There was no error.

In Atherton v. Selectmen of Bourne, 337 Mass. 250, 258-259, 149 N.E.2d 232, we held that the building inspector's withdrawal of a 'stop work order' by physically removing the order from the premises or orally informing the landowner that it was not in effect was not an 'order or decision' from which an aggrieved neighbor could appeal under G.L. c. 40A, § 13. ¹ Dodge v. Inspector of Bldgs. of Newburyport, 340 Mass. 382, 385-386, 164 N.E.2d 309, holds that the failure to appeal from the issuance of a permit to build did not bar mandamus to require the inspector of buildings to stop the use of the building contrary to the zoning by-law; the issuance of the permit was not an 'order or decision' from which to appeal as it did not show that a violation was in prospect and in any case the proceeding was one to compel enforcement of the zoning ordinance. See Van Arsdale v. Provincetown, 344 Mass. 146, 151, 181 N.E.2d 597. In Williams v. Inspector of Bldgs. of Belmont, 341 Mass. 188, 189-190, 168 N.E.2d 257, the petitioners requested the inspector to stop the work which was going forward without a permit. We held that as no writing existed to establish the content of any order or decision, mandamus was not barred. Accord, Hinves v. Commissioner of Pub. Works of Fall River, 342 Mass. 54, 56-57, 172 N.E.2d 232. In the Williams case, we said: 'It may be thought somewhat arbitrary that questions of enforcement which will come before the local board of appeals if a permit is granted or denied will not reach the board if no permit is sought and the enforcing officer does not act. This, however, is not a necessary state of affairs. A provision in a by-law or ordinance for the filing of a request for enforcement and for formal action on the request could, it would seem, operate to cause an appealable decision.'

Here the building commissioner decided the matter submitted to him by the request to revoke permits, and his writing is sufficient to show the substance of his decision, that is, that the 'proposal [for which permits had been granted] meets the requirements of the building Code and Zoning By-Law of the Town of Brookline.' But the...