P & D Service Co. v. Zoning Bd. of Appeals of Dedham

• Decision Date: 19 March 1971
• Citation: 268 N.E.2d 153,359 Mass. 96
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: P & D SERVICE CO., Inc. v. ZONING BOARD OF APPEALS OF DEDHAM et al.

Page 153

268 N.E.2d 153

359 Mass. 96

P & D SERVICE CO., Inc. v. ZONING BOARD OF APPEALS OF DEDHAM et al.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Oct. 6, 1970.

Decided March 19, 1971.

Alfred L. Podolski, Town Counsel, for defendants.

James D. St. Clair, Boston, for plaintiff.

Before SPALDING, CUTTER, SPIEGEL, REARDON, and QUIRICO, JJ.

QUIRICO, Justice.

This is a bill in equity under G.L. c. 40A, § 21, inserted by St.1954, c. 368, § 2, and as amended through St.1960, c. 365. The proceedings involve two building permits originally issued by the defendant building inspector (inspector) of the town of Dedham who later purported to revoke the permits and whose action was upheld by the defendant zoning board of appeals. The case is before us on appeals by the plaintiff and by each defendant from an interlocutory decree relating to the master's report and from the final decree.

The case was heard in the Superior Court on the basis of (a) a stipulation of the parties as to certain facts, and (b) a master's report of facts found by him. The defendants seasonably filed five objections, which became exceptions, to portions of the report which they contended were rulings of law and not findings of fact. The contention was correct, and the judge properly entered an interlocutory decree sustaining the exceptions to such rulings and striking them from the report. Sprague v. Rust Master Chem. Corp., 320 Mass. 668, 677, 70 N.E.2d 831, and cases cited.

The trial judge impliedly overruled a portion of an exception which requested that he strike from the report the statement that 'The Town of Dedham had appropriated money for sewer connections for 1967 and 1968.' This is a finding of fact. The evidence is not before us, the defendants did not request a report or summary of the evidence relating to this finding, and they did not move for a recommittal of the report to the master. The exception to this finding of fact 'violate(s) the elementary rule that exceptions to a master's report cannot avail unless the error is made to appear upon the face of the report itself.' Zuckernik v. Jordan Marsh Co., 290 Mass. 151, 155, 194 N.E. 892, 894; Chopelas v. Chopelas, 303 Mass. 33, 36, 20 N.E.2d 445; Leventhal v. Jennings, 311 Mass. 622, 624, 42 N.E.2d 595; Shaw v. United Cape Code Cranberry Co., 332 Mass. 675, 678--679, 127 N.E.2d 296. Rule 90 of the Superior Court (1954). The interlocutory decree in thus disposing of the exceptions and confirming the master's report as modified by such disposition was correct and is affirmed.

After confirming the master's report as modified by the sustaining of the several exceptions, it was the duty of the trial judge, and it is now our duty, to see that the final decree is such as the law requires upon the facts stipulated and those found by the master. Fred C. McClean Heating Supplies, Inc. v. Westfield Trade High Sch. Bldg. Comm. of City of Westifield, 345 Mass. 267, 271, 186 N.E.2d 911; Lupien v. First Fed. Sav. & Loan Ass'n., 351 Mass. 311, 314, 218 N.E.2d 706. The facts thus stipulated and found by the master are summarized to the extent necessary for this decision.

On December 4, 1967, the plaintiff filed applications with the inspector for permits to build an asphalt or bituminous mixing plant and an accessory scale house on land described as Lot A, Allied Drive, in Dedham. The applications were in proper form. On that date the proposed buildings complied with the town's building code, and the proposed uses of the buildings and land were permitted as of right at that location under the town's zoning bylaw. The inspector informed the plaintiff's representative that he was required to procure a sewer certificate from the town's board of health before the building permits could be issued. The plaintiff procured from the board of health a certificate stating: 'As there is a public sanitary sewer accessible to Lot # A House # Allied Drive (new bld'g) permission is hereby given for a building permit to be granted for the above location.' Upon the presentation of this certificate the inspector on December 4, 1967, issued the two building permits for which the plaintiff applied.

Under the town's building code the selectmen appoint the building inspector, and they have the power to discharge him for failure to perform his duties. On December 14, 1967, the inspector, acting at the written request of the selectmen, wrote the plaintiff stating that the two building permits were revoked because the selectmen thought that there might be a problem concerning the capacity of the sewer in that area to handle another particular connection. On that date the normal flow capacity of the public sewer in Allied Drive was 690 gallons a minute and the actual rate of flow in that sewer was then fourteen gallons a minute. The asphalt or bituminous mixing plant would discharge no waste matter into the public sewer. The plant would include one water closet and one lavatory to be used by four employees and no other persons. This use would produce sixty gallons of sewage a day and would require a rate of flow of twenty-eight gallons a minute, and this contribution of sewage would be infinitesimal in relation to the town's public sewer facilities in the area. The selectmen had no reason to be apprehensive of any danger to the town on account of a connection of the proposed building to the common sewer.

The plaintiff seasonably appealed the inspector's revocation of the building permits to the defendant board of appeals. The board held a public hearing on the appeal and on March 25, 1968, it affirmed the inspector's action. It based its decision on the plaintiff's alleged failure to comply with Reg. 2.5 of art. XI of the State Sanitary Code ¹ (Sanitary Code) and not on the question raised by the selectmen and the inspector as to the capacity of the sewer in the area to handle another connection. Regulation 2.5 provides that 'No building or plumbing permit shall be issued until a Sewer Entrance Permit or Disposal Works Construction Permit has first been obtained.'

Article XI of the Sanitary Code is entitled, 'Minimum Requirements for the Disposal of Sanitary Sewage in Unsewered Areas.' It consists of twenty pages of fine print prescribing in minute detail the specifications and requirements for the licensing, location, construction, use, operation maintenance and inspection of individual sewage disposal systems. It contains no such provisions with respect to public sewage disposal systems, generally referred to as 'common sewers' in applicable statutes. ² Regulation 1.1 of the article defines forty-five words or groups of words which apply almost exclusively to individual systems. Regulation 2.1 states in part, 'No individual sewage disposal system or other means of sewage disposal shall be located, constructed, altered, repaired, or installed where a common sanitary sewer is to be used.' Regulation 2.10 states in part, 'Individual sewage disposal systems * * * shall not be approved where a common sanitary sewer is accessible * * * and where permission to enter such a sewer can be obtained from the authority having jurisdiction over it.'

On December 4, 1967, the town of Dedham had an established procedure for the issuance of building permits, and that procedure was followed in the issuance of the two permits to the plaintiff. The town furnished a printed form of application for permits which included the following instruction: 'Note: Before any building is commenced, a statement must be obtained from the Board of Health of the Town of Dedham that either a sewer is available for construction or that said Board of Health has certified a location on the premises, where a cesspool, septic tank and/or leaching fields are to be constructed.' The plaintiff obtained a certificate from the board of health to the effect that a public sanitary sewer was available to the lot in question, and presented it to the inspector who thereupon issued the permits.

Under the established practice no further action with respect to the sewer was required until the owner desired to have the new building connected to the common sewer, at which time he would file an 'Application for Particular Sewer.' A 'particular sewer' is the line connecting the building to the common sewer of the municipality. See G.L. c. 83, §§ 3 and 24. In the years 1967 and 1968 the town of Dedham had appropriated money for such connections.

The selectmen served as sewer commissioners for the town by virtue of St.1933, c. 211, § 1. No 'Sewer Entrance Permit' form has ever been known to or issued by the selectmen as sewer commissioners. Whenever the board of health certified that a common sewer was accessible, as it did here, the sewer commissioners took no action in the matter until they received an application to connect the premises to the common sewer. There was no finding of any town bylaw, or of any rule or regulation of any town board or official, requiring a 'Sewer Entrance Permit' to be procured prior to obtaining a building permit.

The question presented for our decision in this case is whether Reg. 2.5 to the effect that '(n)o building or plumbing permit shall be issued until a Sewer Entrance Permit or Disposal Works Construction Permit has first been obtained' required the plaintiff to do anything more than what it did with reference to the sewer as a condition precedent to obtaining valid building permits for the asphalt plant and scale house. For the several reasons hereinafter discussed, we hold that it did not.

1. It is clear from a reading of art. XI of the Sanitary Code in its entirety and from its title that it was intended to regulate in detail only...