Neuhaus v. Building Inspector of Marlborough

• Decision Date: 26 January 1981
• Citation: 415 N.E.2d 235,11 Mass.App.Ct. 230
• Parties: Carl A. NEUHAUS et al. 1 v. BUILDING INSPECTOR OF MARLBOROUGH et al. 2
• Court: Appeals Court of Massachusetts

Page 235

415 N.E.2d 235

11 Mass.App.Ct. 230

Carl A. NEUHAUS et al. ¹ v. BUILDING INSPECTOR OF MARLBOROUGH et al. ²

Appeals Court of Massachusetts, Middlesex.

Argued Dec. 8, 1980.

Decided Jan. 26, 1981.

Argeo P. Cellucci, Hudson, for plaintiffs.

Susan B. Hulme, Framingham, for Richard L. Wiedeman and another.

Aldo A. Cipriano, Asst. City Sol., Kuson J. Haddad, City Sol., with him, for Building Inspector of Marlborough.

Before HALE, C. J., and GRANT and NOLAN, JJ.

GRANT, Justice.

In the latter part of December, 1978, the building inspector of Marlborough issued a building permit to the defendants Wiedeman for the erection of a single-family modular home on a lot owned by them which adjoins lots severally owned by the plaintiffs. When the Wiedemans started construction in the early part of May, 1979, the plaintiffs filed a complaint in the Superior Court by which they sought to maintain an action in the nature of mandamus to compel the building inspector to revoke the building permit and to enforce against the Wiedemans a minimum lot frontage requirement of the city's zoning ordinance. Two requests by the plaintiffs for preliminary injunctive relief were denied after hearing.

It appeared at trial, which was conducted the following November, that neither of the plaintiffs had ever made any request in writing of the building inspector that he enforce the ordinance in question, as contemplated by G. L. c. 40A, § 7, as appearing in St. 1975, c. 808, § 3. ³ The trial judge concluded that "(t)he plaintiffs have not exhausted their administrative remedies before coming to this (c)ourt" and ordered the action dismissed. ⁴ The plaintiffs appealed from the ensuing judgment of dismissal. We affirm the judgment.

Our reasons for doing so are found in the provisions of the present G. L. c. 40A which require that all questions concerning the enforcement of valid zoning ordinances and by-laws ⁵ be determined at the local administrative level before resort may be had to a court for enforcement.

General Laws c. 40A, § 7, provides: "The inspector of buildings ... or person or board designated by local ordinance or by-law, shall be charged with the enforcement of the zoning ordinance or by-law ⁶ and shall withhold a permit for the construction, alteration or moving of any building or structure if the building or structure as constructed, altered or moved would be in violation of any zoning ordinance or by-law; and no permit or license shall be granted for a new use of a building, structure or land which use would be in violation of any zoning ordinance or by-law. If the officer or board charged with enforcement of zoning ordinances or by-laws is requested in writing to enforce such ordinances or by-laws against any person allegedly in violation of the same and such officer or board declines to act, he shall notify, in writing, the party requesting such enforcement of any action or refusal to act, and the reasons therefor ( ), within fourteen days of receipt of such request." ⁷ The second sentence of the second paragraph of § 7 reads in material part: "No action, suit or proceeding shall be maintained in any court ... except in accordance with the provisions of this section, section eight and section seventeen ..." (emphasis supplied). The third paragraph of § 7 confers jurisdiction on the Superior Court to "enforce the provisions of this chapter, and any ordinances or by-laws adopted thereunder, and (to) restrain by injunction violations thereof."

Section 8 of G. L. c. 40A provides in pertinent part: "An appeal to the permit granting authority as the zoning ordinance or by-law may provide, ⁸ may be taken by any person aggrieved by reason of his inability to obtain ... enforcement action from any administrative officer under the provisions of this chapter ... or by any person ... aggrieved by an order or decision of the inspector of buildings, or other administrative official, in violation of any provision of this chapter or any ordinance or by-law adopted thereunder." Section 15 of that chapter provides that an appeal under § 8 "shall be taken within thirty days from the date of the order or decision which is being appealed, by filing a notice of appeal, specifying the grounds thereof, with the city or town clerk ...."

Section 14 of c. 40A contains an express grant of jurisdiction to a board of appeals "(1) (t)o hear and decide appeals in accordance with section eight." ⁹ The concluding paragraph of that section reads: "In exercising the powers granted by this section, a board of appeals may, in conformity with the provisions of this chapter, make orders or decisions, reverse or affirm in whole or in part, or modify any order or decision, and to that end shall have all the powers of the officer from whom the appeal is taken ...."

Returning to § 15, we find that the board of appeals is required to hold a public hearing on the appeal, after notice (see § 11), within sixty-five days of the city or town clerk's transmission of the appeal to the board and to render a decision on the appeal within seventy-five days after the date of the filing of the appeal. ¹⁰ Notice of the decision must be mailed to the appellant forthwith. The last sentence of § 15 provides: "Each notice shall specify that appeals, if any, shall be made pursuant to section seventeen and shall be filed within twenty days after the date of filing of such notice in the office of (the) city or town clerk."

Section 17 provides for an appeal to an appropriate court by "(a)ny person aggrieved by a decision of the board of appeals ... whether or not previously a party to the proceeding, ... by bringing an action within twenty days after the decision has been filed in the office of the city or town clerk." In the seventh sentence of the second paragraph of that section we find the long-familiar powers of the court which formerly appeared in G. L. c. 40A, § 21, as in effect prior to St. 1975, c. 808, § 3: "The court shall hear all evidence pertinent to the authority of the board ... and determine the facts, and, upon the facts as so determined, annul such decision if found to exceed the authority of such board ... or make such other decree as justice and equity may require."

We have carefully considered all the arguments advanced by the plaintiffs as to why they should not be required to exhaust the administrative remedies set out in the statute before resorting to a court, and in particular their argument as to the time which may be consumed in pursuing the administrative process under c. 40A, §§ 7, 8 and 15. ¹¹ We have also reviewed the line of cases represented by Brady v. Board of Appeals of Westport, 348 Mass. 515, 517-522, 204 N.E.2d 513 (1965), which generally permitted a citizen (including abutters such as these plaintiffs) to proceed by mandamus to vindicate the public right to enforcement of zoning ordinances and by-laws. ¹² We have also noted on our own that nothing in any of §§ 7, 8, 11, 15 and 17 provides for written notice to the person against whom enforcement is sought that his rights have been drawn into question, with the result that practical as well as legal problems may arise if a building inspector or other enforcement officer is ultimately ordered to pursue the administrative or judicial remedies available under § 7. See Dresser v. Inspector of Bldgs. of Southbridge, 348 Mass. 729, 731, 205 N.E.2d 724 (1965); Woods v. Newton, 349 Mass. 373, 379, 208 N.E.2d 508 (1965). ¹³

But when all is said and done, there is no escape from the explicit prohibition of § 7 that "(n)o action, suit or proceeding shall be maintained in any court ... expect in accordance with the provisions of (§§ 7, 8 and 17)." The voluminous legislative history of the present c. 40A (see, e. g., 1972 House Doc. No. 5009, at 54, 55-57, 59-61, 94-96, 99-103; 1974 House Doc. No. 2522, at 30-36; 1974 House Doc. No. 5864, at 12-13, 19-23; 1975 House Doc. No. 5600, at 11-12, 19-23) compels the conclusion that § 7 means exactly what it says.

Judgment affirmed.

1 Robert J. Galvin.

2 Richard L. and Patricia A. Wiedeman.

3 Except as otherwise specifically indicated, all...