Sunderland v. Building Inspector of North Andover

• Decision Date: 10 April 1952
• Citation: 328 Mass. 638,105 N.E.2d 471
• Parties: SUNDERLAND et al. v. BUILDING INSPECTOR OF NORTH ANDOVER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 471

105 N.E.2d 471

328 Mass. 638

SUNDERLAND et al. v. BUILDING INSPECTOR OF NORTH ANDOVER et al.

Supreme Judicial Court of Massachusetts, Essex.

Argued Feb. 5, 1952.

Decided April 10, 1952.

A. H. Salisbury, Lawrence, for the petitioners.

No argument nor brief for the respondents.

Before QUA, C. J., and RONAN, WILKINS, SPALDING and WILLIAMS, JJ.

WILKINS, Justice.

The petitioners, residents and taxpayers of North Andover, are owners of parcels of real estate on the easterly side of Church Street, a single residence district. The petition alleges facts tending to show a case of 'spot zoning' ¹ on the opposite side of Church Street, directly across from the land of the petitioners, by reason of the action of a special town meeting held on August 28, 1950, at which the zoning by-law purportedly was amended by changing the classification of one parcel of land owned by Alfred H. McKee and Margaret S. McKee from a general residence district to a business district. The by-law was 'approved' by the Attorney General. The respondents are the building inspector, the board of selectmen, and the town clerk, who has completed the publication of the by-law under G.L. (Ter.Ed.) c. 40, § 32, as amended by St.1941, c. 520, § 1. The prayers are that writs of mandamus respectively issue to prevent the granting of any building permit which could not have been issued except for the alleged amendment to the zoning by-law; to require the zoning by-law to be observed and enforced in the form in which it read prior to the alleged amendment; and to cause the town clerk to enter on the records of the town meeting the action of the court on this petition. On September 10, 1951, the court allowed a motion to intervene filed by the owners of the McKee land and by one Alfred S. McKee, who contemplated the establishment on that land of a funeral home. The McKees filed a motion to dismiss the petition 'on the ground that there has been no wrong committed injurious to the petitioners and that it is not the proper remedy and the petitioners are not the proper parties.' On October 11, 1951, the motion was allowed, and an 'order for dismissal' was entered reading: 'The court rules that the relief sought may not be had in these proceedings. It is ordered that the petition be, and hereby is, dismissed.' The petitioners appealed. G.L.(Ter.Ed.) c. 213, § 1D, inserted by St.1943, c. 374, § 4.

The precise ground for the action of the court below is obscure. We have not had the benefit of any brief filed on behalf of the respondents. The only ground suggested in the petitioners' brief is that until the building inspector should take some action, such as issuing a permit, no injury has been done to the petitioners. Such a ground would not be valid. If the zoning by-law has undergone an improper amendment, any party aggrieved is entitled at once to take appropriate steps to cause the invalid amendment to be disregarded and is not forced to wait until some specific action is proposed or begun pursuant to it. See Whittemore v. Town Clerk of Falmouth, 299 Mass. 64, 12 N.E.2d 187; Whittemore v. Selectmen of Falmouth, 304 Mass. 72, 22 N.E.2d 664; Leahy v. Inspector of Buildings of City of New Bedford, 308 Mass. 128, 31 N.E.2d 436. In the case at bar, moreover, it would seem that the respondent town clerk had taken all the steps required of him to put the by-law into effect.

The phraseology of the judge's order suggests that he may have thought that individual landowners could not bring this petition to attack the validity of the amendment and to enforce zoning regulations. The petitioners, however, have that right. Whittemore v. Town Clerk of Falmouth, 299 Mass. 64, 69, 12 N.E.2d 187; Leahy v. Inspector of Buildings of City of New Bedford, 308 Mass. 128, 31 N.E.2d 436. See Knowlton v. Town of Swampscott, 280 Mass. 69, 72, 181 N.E. 849. This petition is properly brought by private parties who are legitimately concerned in the performance by public officers of a public duty. Brewster v. Sherman, 195 Mass. 222, 224, 80 N.E. 821; Cox v. Segee, 206 Mass. 380, 381, 92 N.E. 620; Kelley v. Board of Health of Peabody, 248 Mass. 165, 169, 143 N.E. 39; O'Brien v. Turner, 255 Mass. 84, 86, 150 N.E. 886; Bancroft v. Building Commissioner of City of Boston, 257 Mass. 82, 84, 153 N.E. 319; Brooks v. Secretary of Commonwealth, 257 Mass. 91, 93, 153 N.E. 322; Tuckerman v. Moynihan, 282 Mass. 562, 568-569, 185 N.E. 2; D. N. Kelley & Son, Inc., v. Selectmen of Town of Fairhaven, 294 Mass. 570, 574, 3 N.E.2d 241; Cape Cod Steamship Co. v. Selectman of Provincetown, 295 Mass. 65, 69, 3 N.E.2d 244; Paul v. Selectmen of Scituate, 301 Mass. 365, 370, 17 N.E.2d 193; Parrotta v. Hederson, 315 Mass. 416, 418, 53 N.E.2d 97. Cases like Warner v. Mayor of Taunton, 253 Mass. 116, 148 N.E. 377, are inapplicable for the reasons set forth in the Cape Cod Steamship Co. case at the page cited. Other cases holding that, in the absence of a statute so providing, violation of zoning laws affords a private individual no ground for equitable relief are not in point. Mullholland v. State Racing Commission, 295 Mass. 286, 290, 3 N.E.2d 773; Circle Lounge & Grille, Inc., v. Board of Appeal of...