Tisei v. Building Inspector of Marlborough

• Citation: 5 Mass.App.Ct. 328,363 N.E.2d 262
• Parties: Ralph TISEI, trustee v. BUILDING INSPECTOR OF MARLBOROUGH 1 et al.
• Decision Date: 24 May 1977
• Court: Appeals Court of Massachusetts

Page 262

363 N.E.2d 262

5 Mass.App.Ct. 328

Ralph TISEI, trustee v. BUILDING INSPECTOR OF MARLBOROUGH ¹ et al.

Appeals Court of Massachusetts, Middlesex.

Argued Dec. 17, 1976.

Decided May 24, 1977.

Jay J. Curley, Wakefield, for plaintiff.

David P. Gadbois, City Sol., Marlborough (Allan Robinson, Boston, with him), for the Building Inspector of Marlborough and another.

Before KEVILLE, ARMSTRONG and BROWN, JJ.

KEVILLE, Justice.

By this petition for a writ of mandamus, brought on February 27, 1974, the plaintiff seeks to compel the defendant building inspector of Marlborough to issue a building permit for the construction of a twenty-four unit apartment building. The trial judge heard the case on May 13, 1974, and on August 5, 1974, filed a document entitled 'Findings, Rulings and Order' which concluded with the statement, 'The petition for a Writ of Mandamus is hereby denied.' The plaintiff appealed from the 'Findings, Rulings and Order.' ²

The appeal must be dismissed. The case having been trial before July 1, 1974, but no findings having been filed until after July 1, 1974, all proceedins after July 1 were required to conform to the new rules of civil and appellate procedure which became effective on that date. ³ See Mass.R.Civ.P. 1A, subpar. 8, 365 Mass. 732 (1974). After the filing of the judge's 'Findings, Rulings and Order' the clerk did not, pursuant to Mass.R.Civ.P. 58(a)(1), 365 Mass. 826 (1974), set forth on a separate document and enter a judgment denying the plaintiff's complaint for relief in the nature of mandamus. The judge's statement at the conclusion of his 'Findings, Rulings and Order' that '(t)he petition for a Writ of Mandamus is hereby denied' did not constitute an effective entry of judgment. Since judgment has not been set forth on a separate document and entered, 'any appellate procedure is premature.' See the eighth and ninth paragraphs of the Reporters' Notes to Mass.R.Civ.P. 58, Mass.Ann.Laws, Rules of Civil And Appellate Procedure at 368 (Law. Co-op. 1974); Nantucket Land Council, Inc. v. Planning Bd. of Nantucket, --- Mass.App. ---, --- ^a, 361 N.E.2d 937 (1977), and material cited. Nevertheless because the order for judgment is in such a form that the clerk may 'enter judgment without awaiting any direction by the court' (Mass.R.Civ.P. 58(a)(1), as amended, --- Mass. --- (1977)), we proceed to consider by way of dictum the contentions argued by the parties. Nantucket Land Council, Inc. v. Planning Bd. of Nantucket, --- Mass.App. at --- - --- ^b, 361 N.E.2d 937.

We summarize the findings of the judge. On December 3, 1970, the plaintiff, pursuant to § 3--18 of the Marlborough building code, filed an application with the building inspector for a permit to build an apartment building on East Main Street in Marlborough. See G.L. c. 143, § 3, as in effect prior to St.1972, c. 802, § 15. ⁴ On January 18, 1972, after the plaintiff had obtained certain other permits necessary before obtaining a building permit, the building inspector refused to issue the building permit because 'the land in question was improperly zoned.' The plaintiff appealed from that decision to the Marlborough board of appeals (see G.L. c. 40A, § 13, as in effect prior to St.1975, c. 808, § 3), which reversed the decision and directed that the building inspector issue a permit under the zoning ordinance. After the plaintiff made certain changes in the building plans requested by the building inspector, the latter in early September, 1972, again refused to issue a building permit on the ground that a permit could not issue until the public safety committee of the city council (the committee) had approved the building plans. See § 3--18 of the Marlborough building code. ⁵ On December 28, 1972, the committee disapproved the site plan. The plaintiff, pursuant to § 3--21 of the building code, ⁶ petitioned the city council for a building permit. On April 23, 1973, the city council voted to uphold the committee's decision and deny a permit. The plaintiff made further changes in his building and site plans, obtained the approval of the building inspector, and at the request of the building inspector resubmitted his application to the committee. On September 26, 1973, the committee refused to approve the modified plans, and on October 29, 1973, the building inspector, not in the exercise of his independent judgment, but because of the action of the committee (see C. & H. Co. v. Building Commr. of Medford, 303 Mass. 499, 500, 21 N.E.2d 983 (1939)), refused to issue a building permit. The plaintiff again appealed to the city council which on December 3, 1973, voted to refer the matter back to the committee. After the committee again refused to approve the issuance of a building permit, the city council on February 4, 1974, denied the plaintiff's application.

At trial, there was uncontradicted testimony, to which there was no objection, that after February 4, 1974, the committee voted, without notice to the plaintiff, in favor of the issuance of a building permit to the plaintiff, but that in April, 1974, the city council voted to overrule the decision of the committee without holding a public hearing or giving the plaintiff notice of its action.

1. We first dispose of the plaintiff's contention that he is entitled to a building permit because the committee was without power to disapprove the issuance of a permit. This contention rests on the assertion that § 3--18 of the building code--which sets forth the procedure for applying for building permits and which authorizes the committee to act as the ultimate 'representative of the general public interest' in determining whether a permit should issue (see O'Donnell v. Board of Appeals of Billerica, 349 Mass. 324, 326, 207 N.E.2d 877 (1965))--is invalid since it sets forth no standards for the guidance of the committee and thereby confers upon the committee unbridled discretion to grant or refuse a permit.

This contention of the plaintiff must fail. The plaintiff by seeking to have the Superior Court order the issuance of a permit under § 3--18 must be deemed to have recognized the validity of that section. Karl v. Wolsey Co. Inc. v. Building Inspector of Bedford, 324 Mass. 419, 421--422, 86 N.E.2d 644 (1949). The plaintiff cannot simultaneously seek the issuance of a permit under § 3--18 and assert that the section is invalid. Shemeth v. Selectmen of Holden, 317 Mass. 278, 280--281, 58 N.E.2d 6 (1944).

2. The plaintiff's remaining contention is that the city council was without authority to override the committee's vote, taken after February 4, 1974, approving the issuance of a permit to the plaintiff and therefore that the committee's vote entitles him to a permit. Before we reach the merits of this contention, we must consider a procedural problem. The plaintiff's complaint, having been filed without notice of (and apparently before) the committee's vote, sought relief only on the basis of the actions of the building inspector, the committee, and the city council through February 4, 1974. Relief granted on the basis of the actions of any of them after that date would, therefore, be beyond the scope of the pleadings. Farinha v. Commissioner of Banks, 303 Mass. 192, 195, 21 N.E.2d 239 (1939). Shemeth v. Selectmen of Holden, supra, 317 Mass. at 280, 58 N.E.2d 6.

However, there appears to be no issue of fact concerning the actions of the committee and city council after February 4; those actions were fully testified to at the hearing before the trial judge, and the question whether the plaintiff is entitled to a permit as a result of the committee's vote has been fully argued before us. See Farinha v. Commissioner of Banks, supra; Seder v. Kozlowski, 304 Mass. 367, 370, 23 N.E.2d 880 (1939); Pridgen, v. Boston Housing Authy., 364 Mass. 696, 717--178, 308 N.E.2d 467 (1974). See also Payne v. R. H. White Co., 314 Mass. 63, 67, 49 N.E.2d 425 (1943). We believe in these circumstances that the plaintiff should be given an opportunity under Mass.R.Civ.P. 15(b) or 15(d), 365 Mass. 761, 762 (1974) (see Mass.R.Civ.P. 1A, subpar. 2, citing rule 15; M. DeMatteo Constr. Co. v. Board of Appeals of Hingham, --- Mass.App. ---, ---, n. 10 ^c, 334 N.E.2d 51 (1975); see also 3 Moore's Federal Practice par. 15.16(4) (1974)) to file either a motion to amend his pleadings to conform them to the evidence (see Sandler v. Elliott, 335 Mass. 576, 589, 141 N.E.2d 367 (1957), and Pridgen v. Boston Housing Authy., 364 Mass. at 717, 308 N.E.2d 467) or one for leave to serve a supplemental pleading setting forth the events occurring after the commencement of his action (see Caputo v. Board of Appeals of Somerville, 330 Mass. 107, 114, 111 N.E.2d 674 (1953), Schertzer v. Somerville, 345 Mass. 747, 750, 189 N.E.2d 555 (1963), and George Altman, Inc. v. Vogue Internationale, Inc., --- Mass. ---, --- - --- ^d, 314 N.E.2d 913 (1974)). Either type of motion may be allowed even if, as a technical matter, the amendment or supplemental pleading results in the introduction into the suit of a new cause of action. See the last paragraph of the Reporters' Notes to Mass.R.Civ.P. 15, Mass.Ann.Laws, Rules of Civil and Appellate Procedure at 288 (Law.Co-op. 1974). See also 3 Moore's Federal Practice par. 15.16(3) (1974). Contrast Knights v. Treasurer & Recr. Gen., 236 Mass. 336, 338--341, 128 N.E. 637 (1920), and Sharpe v. Metropolitan Transit Authy., 327 Mass. 171, 174, 97 N.E.2d 399 (1951), both decided before the adoption of the new rules of civil procedure.

On the assumption that the plaintiff does seek, and is permitted, to amend his pleadings or to serve a supplemental pleading so as to set forth the actions of the committee and the city council after February 4, 1974, which were testified to at the trial, we proceed to consider the plaintiff's contention that he is entitled to a permit as a result of the committee's vote. As we stated in part 1 of this opinion, § 3--18 of the Marlborough building...