Town of Stow v. Pugsley

• Citation: 207 N.E.2d 908,349 Mass. 329
• Parties: TOWN OF STOW v. Lloyd D. PUGSLEY et al. Bradford E. WHITE et al. v. BOARD OF SELECTMEN.
• Decision Date: 09 June 1965
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 908

207 N.E.2d 908

349 Mass. 329

TOWN OF STOW v. Lloyd D. PUGSLEY et al.

Bradford E. WHITE et al. v. BOARD OF SELECTMEN.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued May 5, 1965.

Decided June 9, 1965.

Thomas R. Morse, Jr., Town Counsel, for Town of Stow and another.

Jerome Daniel Goodman, Boston, for Lloyd D. Pugsley and others.

Francis L. Swift, Wellesley, for Bradford E. White and others.

Before WILKINS, C. J., and WHITTEMORE, CUTTER, KIRK and REARDON, JJ.

WHITTEMORE, Justice.

The town of Stow on June 12, 1963, brought a bill for declaratory relief under G.L. c. 231A. The defendants are: (a) Wylie Pugsley and his wife Leajean, as the owners of a parcel of land on the westerly side of Gleasondale Road containing about 50,000 square feet of land; (b) their son Lloyd D. Pugsley; (c) four abutting property owners.

The controversy alleged in the bill relates to a cement building being constructed by Lloyd Puglsey on his parents' land for use as a motor vehicle repair garage. The issues were whether a license was required under the general by-law applying to the 'sale or barter of junk, old metals or second hand articles' and whether the building violates the zoning by-law. The bill included a prayer for injunctive relief.

On July 24, 1963, the four owners of abutting property brought a petition for a writ of mandamus against the selectmen as the enforcing officers (and, by motion, against the three Pugsleys) praying for an order that the selectmen bring a bill in equity to enforce the zoning by-law and that an enforcing injunction be issued.

After a single hearing on the two proceedings the trial judge entered a decree dismissing the bill for declaratory relief without prejudice, and entered in the mandamus proceeding orders whereby an answer in abatement of the Pugsleys was 'disallowed' and a writ of mandamus was to issue requiring the selectmen to proceed in equity to enjoin violation of the zoning by-law by the Pugsleys.

1. The bill for declaratory relief was properly brought and should not have been dismissed. Controversies in respect of the enforcement of zoning by-laws or ordinances are appropriate for resolution under G.L. c. 231A. NOONAN V. MOULTON, MASS., 204 N.E.2D 897.^A Plainly, on the pleadings and the testimony there is a controversy between the town of Stow as represented by the selectmen (the enforcing officers) and the Pugsleys, as to whether the zoning by-law barred the garage building, and whether a permit was required under the general by-law. See Attorney Gen. v. Inhabitants of Town of Dover, 327 Mass. 601, 606, 100 N.E.2d 1.

It follows that the mandamus petition was subject to abatement. In effect, the town (the real party in any enforcement proceeding, BRADY V. BOARD OF APPEALS OF WESTPORT, MASS., 204 N.E.2D 513)^B had already undertaken the enforcement that the petition sought to require. The town had asked to be instructed whether there were violations of the by-laws, and had already invoked the enforcing power given to the Superior Court by G.L. c. 40A, § 22.

2. The proposed repair garage was not prospectively a violation of art. 6, § 5, of the general by-laws that provides, 'No person shall collect, deal in, or keep a shop for the purchase, sale or barter of junk, old metals or second hand articles within the limits of the town, unless licensed by the board of selectmen.' This proposition speaks for itself.

3. The repair garage is a violation of the zoning by-law.

The by-law was amended in September, 1962, effective October 5, 1962. The evidence shows that Lloyd Pugsley began the excavation prior to October. When pressed as to the date of the beginning of construction he testified. 'I will say October for my own benefit. * * * I can't give you a date [in October]. That is why I gave you the month.' There was no testimony that the construction of the building began before October 5, or that it was substantially advanced on that date. Such work as had been done prior to October 5, 1962, gave Lloyd Pugsley no exemption under the nonconforming use provision of G.L. c. 40A, § 5. Brett v. Building Commr. of Brookline, 250 Mass. 73, 79-81, 145 N.E. 269. See Locatelli v. City of Medford, 287 Mass. 560, 192 N.E. 57, cert. den. 294 U.S. 727, 55 S.Ct. 636, 79 L.Ed. 1257, General Laws c. 40A, § 11, provides in part, '[T]he beginning of work * * * after * * * notice [of hearing before the planning board required by § 6] has been given or * * * [the] warrant [for the town meeting at which the by-law or amendment is adopted] has been issued, shall not justify the violation of a zoning ordinance or by-law or an amendment thereto subsequently adopted as the outcome of such hearing and in substantial accord with such notice or warrant; provided, the subsequent steps required for the adoption of such ordinance or by-law or amendment thereto are taken in their usual sequence without unnecessary or unreasonable delay.' The evidence does not disclose the date of the hearing or of the warrant. There was some testimony that preliminary excavation work began in August, 1962. Our view of the by-law in its form prior to October 5, 1962, is such that we need not determine whether excavation is in law the 'beginning of work upon a building or structure' or whether the above part of § 11 is to be construed as making work begun prior to notice of the planning board hearing subject only to the by-law as it stood prior to the amendment.

The by-law prior to October 5, 1962, provided: 'Each main building or structure shall be erected on a lot containing not less than forty thousand (40,000) square feet of land and having not less than one hundred fifty (150) feet street frontage.' This means that for each main building there shall be a lot not less in size and frontage than stated. The Pugsley lot already has thereon a dwelling house. That is a main building. The answer of the Pugsleys to the bill admits this. ¹ Lloyd Pugsley testified that the purpose of the proposed new building is for use as a repair garage--a place for the 'repairing of automobiles.' The 'foundation area' of the building is forty feet by fifty feet. The building is of cement block construction, with two fifty-five foot 'I' beams carrying a tar and gravel roof. This commercial building is also a main building within the meaning of the by-law. The 50,000 square foot lot with a frontage of about 225 feet does not support more than one main building.

The October 5, 1962, amendments do not authorize the construction of this commercial building on this residential lot. These amendments caused § 4, subparagraph 2(a) and (b) and § 5, subparagraph 6(a) and (b) to read as set out in the margin. ²

A further amendment was adopted in February, 1963. No party contends that the by-law as amended in February, 1963, makes the garage a permitted structure, at least without a permissive order under the by-law. ³

There was evidence tending to show that Lloyd Pugsley at 'various times' in the past ten or twelve years had done some automobile repair work in a barn on the premises and had ...