Perini Corp. v. Building Inspector of North Andover

• Decision Date: 22 February 1979
• Citation: 385 N.E.2d 1035,7 Mass.App.Ct. 72
• Parties: PERINI CORPORATION v. BUILDING INSPECTOR OF NORTH ANDOVER.
• Court: Appeals Court of Massachusetts

Page 1035

385 N.E.2d 1035

7 Mass.App.Ct. 72

PERINI CORPORATION v. BUILDING INSPECTOR OF NORTH ANDOVER.

Appeals Court of Massachusetts, Middlesex.

Argued Jan. 16, 1979.

Decided Feb. 22, 1979.

Arnold H. Salisbury, Town Counsel, and Donald F. Smith, Lawrence, for defendant.

John D. O'Reilly, III, Framingham, for plaintiff.

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

DREBEN, Justice.

In this action for declaratory relief a Superior Court judge determined that the plaintiff, Perini Corporation, was not required to apply for a municipal building permit from the town of North Andover or to pay a permit fee in connection with its construction of a water treatment facility for the Greater Lawrence Sanitary District. Judgment was entered for the plaintiff after its motion for summary judgment was allowed. The building inspector of the town has appealed. We agree with the decision that the plaintiff is exempt from paying the permit fee and will discuss that issue first.

The facts are uncontroverted. The Greater Lawrence Sanitary District was created as "a body politic and corporate" by St.1968, c. 750 (as amended by St.1970, c. 320), to develop water pollution abatement facilities for the district, which includes the territories of the city of Lawrence and the towns of Andover, Methuen and North Andover. After acquiring title to ninety acres of land in North Andover in 1970, the district in January, 1974, entered into a contract with the plaintiff for construction of subterranean and above ground structures. The contract provided that the plaintiff would procure and pay for all necessary permits.

The plaintiff began construction in March, 1974, without applying for a building permit from the town. The building inspector and, after a hearing in November, 1974, the board of appeals, determined that a building permit and a fee were required. On January 28, 1975, the plaintiff applied for a permit without tendering a fee and, on February 14, 1975, the application was refused because of the plaintiff's "failure to conform to certain provisions of the State Building Code, especially Sections 113.2 and 118," which relate to fees. ¹ The prescribed fee, if one is required, is $15,000.

On March 11, 1975, the defendant issued a stop work order. The plaintiff filed this complaint on March 26, 1975, the Superior Court issued a temporary injunction enjoining the defendant from enforcing the order pending the resolution of the case, and construction continued.

In order to determine whether a permit fee is required we have to examine § 22 of the North Andover building by-law which provides an exemption for "municipally-owned buildings or structures." ² For this purpose we do not find it necessary to decide whether the State Building Code is applicable to the project, because, even under that code, the permit fee, if required, is prescribed by the local by-law. Section 118.0 of the State Building Code, cited in footnote 1, Supra. ³ The question then is whether the buildings and other structures of the Greater Lawrence Sanitary District are "municipally owned" within the meaning of the by-law. We hold that they are.

While cities and towns usually provide local services, some problems are more effectively solved by governmental units having different boundary lines. Districts are created when units of special size and location are deemed particularly appropriate to provide certain facilities. The Greater Lawrence Sanitary District is the unit created to solve water pollution problems for the three towns and one city in its area. It is given the necessary powers to carry out that function, and the costs of its water pollution abatement services, other than the costs paid by State and Federal grants, are charged to its member towns and city. St.1968, c. 750, § 5, as appearing in St.1970, c. 320, § 4.

Districts which are created to provide more efficiently the same services usually furnished by cities or towns provide, in our view, municipal services. This is equally true whether a district is composed of more than one city or town or is located entirely within the boundaries of a single city or town. As stated in Gaskill v. Dudley, 6 Met. 546, 553 (1843), "School districts, so far as they are corporations, are corporations of the same kind as towns, organized for the same purposes, charged with the same duties. . . ."

" Municipal" has been construed in Massachusetts to apply primarily to local matters, most usually to cities and towns, as in Ouellet v. Board of Appeals of Dover, 355 Mass. 77, 78-79, 242 N.E.2d 759 (1968). The defendant, relying on that case, would have us limit the term "municipally owned" to buildings and structures owned by a city or town. However, we believe it more appropriate, and also more consistent with judicial and statutory authority, ⁴ to construe the term to include buildings and structures owned by the Greater Lawrence Sanitary District.

Districts, whether consisting of a portion of a town or composed of one or more towns, are sometimes referred to as "quasi corporation(s) performing municipal functions," Hurlburt v. Great Barrington, 300 Mass. 524, 526, 16 N.E.2d 71 (1938), "quasi municipal corporation(s)," Williams College v. Williamstown, 219 Mass. 46, 47, 106 N.E. 687 (1914), or "municipal quasi corporations," Seaver v. Onset Fire District, 282 Mass. 209, 213, 184 N.E. 668 (1933). 1 McQuillin, Municipal Corporations § 2.13 (3rd ed. 1971). Numerous statutes also define the term "municipal," or a derivative thereof, to include districts, e. g., G.L. c. 44, § 16 (indebtedness of district called "Municipal Purpose Loan"); G.L. c. 44, § 16B ("district" referred to as "municipality" in connection with seals and municipal indebtedness); G.L. c. 149, § 178G, as in effect prior to St.1973, c. 1978, § 1 ("municipal employer" included any county, city, town, or district); G.L. c. 40D, § 1(n) (defines "municipality" to include, where the context requires, two or more cities or towns joining together to form an authority to carry out industrial development). See also G.L. c. 41, § 99J (General Laws applicable to town police departments shall apply to district police departments). Based on these authorities and the nature of the services provided, we hold the subterranean and above-ground structures of the Greater Lawrence Sanitary District are "municipally-owned" within the meaning of the North Andover by-law. ⁵ The judge was, therefore, correct in determining that no fee was required.

We now turn to the other issue in this case, namely, whether a permit is required. Although both parties have requested a determination of this question, it is not clear that an actual controversy exists. The plaintiff did, in fact, file an application for a building permit, and the primary reason the permit was refused was the plaintiff's failure to conform to the fee requirements of the State Building Code. Now that we have determined that a fee is not required, the defendant may issue the permit or may, as the record shows other municipalities have done, decide that a permit is not necessary. Moreover, as noted in footnote 3 Supra, the defendant has sought only to enforce the State Building Code, and there may be no controversy as to the need for a permit under the municipal building code.

Furthermore, the record does not contain sufficient facts for a determination whether a building permit is required. The judge below, citing Village on the Hill, Inc. v. Massachusetts Turnpike Authy., 348 Mass. 107, 202 N.E.2d 602 (1964), cert. denied, 380 U.S. 955, 85 S.Ct. 1089, 13 L.Ed.2d 971 (1965), held in his memorandum of decision that a permit was not required because of the statutory exemption contained in G.L. c. 143, § 3, ⁶ and the exemption in § 5 of the municipal by-law ⁷ for structures owned by the Commonwealth. However, as a matter of strict construction, neither the by-law nor the statutory provision exempts the structures of the district. The buildings owned by the Greater Lawrence Sanitary District are clearly not owned by the Commonwealth and there is no evidence that they should be exempt from building code requirements for analogous policy considerations. There is nothing in the record which describes the "State like" or "government" functions, ⁸ if any, of the district or suggests that the municipal by-law impedes the construction of the district's facilities. ⁹ Compare Medford v. Marinucci Bros. & Co., 344 Mass. 50, 58, 181 N.E.2d 584 (1962), and Commonwealth v. Biddiscombe, 347 Mass. 427, 429, 198 N.E.2d 409 (1964).

There are also insufficient facts in the record to support the plaintiff's alternative argument, based on Boston Edison Co. v. Sudbury, 356 Mass. 406, 420, 253 N.E.2d 850 (1969), that the municipal code should not apply to this project since State and Federal funding grants impose extensive requirements on the contractor. The record does not set forth the nature of the subterranean and above-ground facilities, does not contain evidence of any considerations requiring uniformity, ¹⁰ contrast Boston Edison Co. v. Sudbury, supra, ¹¹ or even suggest that the municipal by-law conflicts with, or in any way hinders, the State and Federal duties imposed on the plaintiffs. For the foregoing reasons, a declaration of the plaintiff's rights as to the necessity of a permit cannot be made on the present record. Greenberg v. Board of Assessors of Cambridge, 360 Mass. 418, 420-421, 275 N.E.2d 149 (1971). George F. Davey, Inc. v. Norton, 2 Mass.App.Ct. 190, 195, 310 N.E.2d 609 (1974).

The judgment is vacated and the case is remanded to the Superior Court. ¹² If the plaintiff, within thirty days from the date of the rescript, files an amended complaint explicitly seeking a determination that it need not obtain a permit, the Superior Court shall conduct further proceedings consistent herewith. The court may, in its discretion, before such claim is adjudicated, also expressly direct the entry of...