Morganelli v. Building Inspector of Canton

Citation7 Mass.App.Ct. 475,388 N.E.2d 708
PartiesSamuel MORGANELLI et al. 1 v. BUILDING INSPECTOR OF CANTON et al. 2
Decision Date30 April 1979
CourtAppeals Court of Massachusetts

Page 708

388 N.E.2d 708
7 Mass.App.Ct. 475
Samuel MORGANELLI et al. 1
Appeals Court of Massachusetts, Norfolk.
Argued Jan. 16, 1979.
Decided April 30, 1979.

Page 709

Francis J. Ulman, Boston, for Samuel Morganelli.

A. Russell Lucid, Jr., Weymouth, for William H. Dillon, Jr.

Ellen S. Mattingly, for Francis A. Leahy.

Joseph H. Malloy, Town Counsel, Canton, for Building Inspector of Town of Canton.

Before HALE, C. J., and GOODMAN and DREBEN, JJ.

[7 Mass.App.Ct. 476] DREBEN, Justice.

This is an appeal by two abutters from a judgment, entered after trial, dismissing their complaint seeking enforcement of the zoning by-law of the town of Canton. We affirm on the ground of res judicata.

The plaintiffs in this action are owners of property in Canton immediately adjacent to a lot (Lot 28) owned by the defendant, Francis A. Leahy, trustee of Breton Realty Trust. The other defendant, Dominic Duganiero, is the building inspector of the town. The plaintiffs in their complaint, as amended, seek: (1) an order revoking a building permit issued by the building inspector because the proposed residence of the defendant Leahy does not meet the front setback requirements of the Canton zoning by-law; (2) an injunction prohibiting Leahy from continuing to build on his property; and (3) an order requiring Leahy to remove all structures and to restore the lot to the condition it was in prior to the start of construction. Leahy's answer raised res judicata as an affirmative defense. The answer of the building inspector averred that the permit complied with a 1974 judgment in an action brought by Leahy's predecessor in title, Paul B. Morley. 3

In order to determine whether the plaintiffs in this action are barred by the Morley litigation, 4 we have to determine the scope of that litigation, whether it adjudicated the matters raised in this action and, if it did, whether these plaintiffs are bound by the prior judgment.

1. We first examine the scope of the prior litigation. The trial judge in this action found that "the exact issues presented for consideration in the present suit were considered by the court and fully litigated and contested between the plaintiffs in the original Morley suit and the [7 Mass.App.Ct. 477] Building Inspector of the Town of Canton." While we do not have before us the entire record of the Morley litigation, 5 the material we do have, and which will be discussed more fully below, clearly indicates that the judgment in Morley, if binding on the plaintiffs, bars the claims raised here.

The facts concerning the Morley litigation are derived from the pleadings, from an "Agreed Statement of Facts" filed by the parties, and from the findings, rulings and orders of the judge in that case.

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Morley was a petition for a writ of mandamus brought by the previous owner of Lot 28, asking that the building inspector be directed to issue a building permit. 6 Although the lot did not meet either the area or the setback requirements of the governing by-law, Morley claimed that his lot came within certain exceptions in the by-law which permitted him to build on the lot. One exception was a grandfather clause (§ VII) which permitted construction if the lot (1) met the area requirements of the zoning by-law when the lot was laid out, (2) was not subsequently reduced in size so as further to increase its non-conformity with the area, width and frontage requirements (except by a taking by eminent domain), and (3) met all the other provisions of the then current by-law.

The original lot as laid out and recorded in 1939 showed a ninety foot depth from the street (Pleasant Circle, formerly known as Daniels Road). In 1946, however, the town laid out the street twenty feet farther south than shown on the 1939 plan so that the lot, in fact, was approximately seventy feet deep and not ninety feet deep. 7 Both the building inspector and Morley agreed that the [7 Mass.App.Ct. 478] lot met the area requirements applicable at the time the lot was laid out and recorded in 1939, but the building inspector claimed that the lot had subsequently been reduced so as to increase its non-conformity.

Another exception in the by-law (§ VIII C) stated that a building could be constructed as near to the street line as the average of the setbacks of the dwellings on either side of the lot. It was agreed by the parties in Morley that the average setback from the street of the buildings on either side of the lot was twenty-two and one half feet. 8

The judge in Morley issued initial "findings, rulings and order" in January, 1974, and decided that "it is permissible to build a single family home on the subject lot." He also ordered that a writ of mandamus issue directing the building inspector to issue a building permit. The building inspector filed a claim of appeal. On April 2, 1974, the judge withdrew his January findings, rulings and order (the reason for such withdrawal does not appear) 9 and, on April 8, 1974, issued new "findings, rulings and order," which contained the following new ruling: "Due to the taking 10 and the exemption of the lot from the [7 Mass.App.Ct. 479] 6500 square foot requirement under the 1939 public taking clause, I find that this lot is presently buildable for a single family dwelling with 22.5' setback measured From original street line " as shown on the 1939 plan (emphasis supplied). This ruling was erroneous as set forth in the margin. 11

The April ruling also specified the rear and side yard requirements, and stated that

Page 711

the building inspector had unlawfully denied Morley a permit. The judge ordered that a writ of mandamus issue directing the issuance of a building permit to Morley. The appeal by the building inspector from the January order was withdrawn on the same day that the new order was issued, and no appeal was taken from the April order.

2. The foregoing detailed description of the Morley litigation shows that the matters raised in this action were conclusively settled in Morley. The plaintiffs claim, however, that Morley is not a bar to this proceeding because § VIII of the Canton by-law governing setbacks was not referred to in the pleadings in Morley and that the only reference in the pleadings was to § VII which relates to lot areas, widths and exceptions for existing lots. We do not agree.

The setback questions were obviously before the court. The statement of agreed facts specifically referred to § VIII C of the by-law (the same section that is relied upon in the complaint in this action) and set forth that the building would have a "reduced" setback and would meet the setback exception measured by the mean distance of adjoining buildings.

[7 Mass.App.Ct. 480] The judge's rulings and order in Morley specified the exact front, back, and side yard requirements for a building on Lot 28 and ordered the building inspector to issue a permit for a residence meeting such requirements. Under these circumstances, the ruling as to the front yard requirement under the zoning by-law was "inextricably interwoven with the rulings of law and order for judgment." Sheehan Construction Co. v. Dudley, 299 Mass. 48, 50-51, 12 N.E.2d 180, 181 (1937); Cf. Trustees of Stigmatine Fathers, Inc. v. Secretary of Admn. & Finance, 369 Mass. 562, 564, 566, 341 N.E.2d 662 (1976). The right to put a building on the property with a 22.5' setback as shown on the 1939 plan is conclusive upon the parties and those persons whom they represent. Jamaica Pond Aqueduct Corp. v. Chandler, 121 Mass. 1, 2 (1876). It is a "fundamental precept of common-law adjudication," that a right determined by a court of competent jurisdiction cannot be disputed in a subsequent proceeding between such persons. Montana v. United States, --- U.S. ----, ----, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979).

Moreover, the claim raised by the plaintiffs in this action is the same claim which was raised in Morley, namely that the zoning by-law of Canton precludes a building on Lot 28. Even if the front setback requirements had not been before the court, the Morley case cannot be viewed as an action to determine whether § VII of the Canton by-law precluded a building on Lot 28, and this action as one to determine whether § VIII precludes a building on such lot. It is rudimentary, whatever the definition of "claim," or of the older term "cause of action," that all the defenses to the issuance of a building permit for Lot 28 based on the Canton zoning by-law had to be raised in the prior action. The first action would be a bar even if, as is not the case here, only one section of the by-law had been put in issue. Trustees of Stigmatine Fathers, Inc. v. Secretary of Admn. & Finance, 369 Mass. at 564-567, 341 N.E.2d 662. See Restatement (Second) of Judgments § 47 (Tent.Draft No. 1, 1973) and § 61(2) (Tent.Draft No. 5, 1978).

[7 Mass.App.Ct. 481] 3. We next turn to the question whether the plaintiffs who were not parties to the Morley litigation are, nevertheless, bound by its judgment. 12 That question, in turn, depends on the nature of the plaintiffs' interest, whether that interest was represented in Morley, and whether there are special circumstances or due process considerations which make it unfair to bind the plaintiffs to that judgment. As we

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have seen earlier, the plaintiffs are here challenging, as a violation of the zoning by-law, Leahy's right to construct a building on his land. Under Massachusetts law, abutters or neighboring property owners do not have a private cause of action for direct enforcement of zoning regulations. O'Brien v. Turner, 255 Mass. 84, 85-86, 150 N.E. 886 (1926). Circle Lounge & Grille, Inc. v. Board of Appeal of Boston, 324 Mass. 427, 431, 86 N.E.2d 920 (1949). Boyle v. Building Inspector of Malden, 327 Mass. 564, 566-567, 99 N.E. 925 (1951). Nigro v. Jones, 332 Mass. 741, 744, 127 N.E.2d 650 (1955). Smith v. Board of Appeals of Plymouth, 340 Mass....

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