Vokes v. Avery W. Lovell, Inc.

• Decision Date: 02 November 1984
• Citation: 468 N.E.2d 271,18 Mass.App.Ct. 471
• Parties: Carolyn M. VOKES et al. 1 v. AVERY W. LOVELL, INC. (and a companion case 2 ).
• Court: Appeals Court of Massachusetts

Page 271

468 N.E.2d 271

18 Mass.App.Ct. 471

Carolyn M. VOKES et al. ¹ v. AVERY W. LOVELL, INC. (and a companion case ²).

Appeals Court of Massachusetts Plymouth.

Argued June 14, 1984.

Decided Aug. 17, 1984.

Further Appellate Review Denied Nov. 2, 1984.

[18 Mass.App.Ct. 472] Edward W. Kirk, Falmouth, for Avery W. Lovell, Inc.

Robert E. Galvin, Marshfield, for plaintiffs.

Before GREANEY, C.J., and BROWN and PERRETTA, JJ.

GREANEY, Chief Justice.

The defendant, Avery W. Lovell, Inc. (Lovell), appeals from judgments of the Superior Court enjoining Lovell from (a) garaging or maintaining eighteen-wheel vehicles or allowing such vehicles on its property and (b) using a garage for the storage of commercial vehicles and equipment. The appeals have been consolidated. The questions argued are whether the Superior Court had jurisdiction over the cases, and if so, whether it decided them correctly.

We state the facts pertaining to the jurisdictional issues. Lovell is in the business of installing and maintaining septic tanks and cesspools with its base of operations at 789 Mayflower Street in Duxbury. The property is located in a residential zone. Lovell conducted its business pursuant to a variance granted by the board of appeals of Duxbury (board) in 1965 which permitted it (1) to conduct, in "a residential district," a "cesspool business, both as to the maintenance of the same and the construction of new cesspools," and (2) to construct "a garage to store [its] equipment under cover." In 1975, the town adopted a new zoning by-law. By reason of art. 106 of the by-law, Lovell's operations became a nonconforming use. The plaintiffs live on Mayflower Street in the immediate vicinity of Lovell's business.

In early 1981, Lovell inquired of the board whether a special permit would be necessary under the by-law for the construction of a second garage on its Mayflower Street property. On May 15, 1981, the board issued a memorandum to the building inspector stating that a special permit was unnecessary. On June 22, 1981, the plaintiffs, and other neighborhood residents, wrote to the building inspector complaining about the parking of large flatbed trucks and "other long trailer trucks" on Lovell's property. ³ The building inspector did not reply to the letter.

On July 10, 1981, the building inspector issued a building permit granting Lovell permission to construct a fifty by fifty-five foot second building for the "storage of vehicles." The building inspector's decision to grant the permit was not appealed to the board. ⁴

On October 19, 1981, after engaging a lawyer, the plaintiffs, in two letters, requested that the building inspector (1) issue a "stop order" prohibiting Lovell from operating and maintaining eighteen-wheel gravel trucks and flatbed trailers, and (2) issue a "stop order" on the building permit granted Lovell on July 10, 1981. ⁵ The building inspector did not respond to the letters within fourteen days. He did, however, reply in a letter dated November 18, 1981, in which he declined both requests for enforcement. ⁶

On November 19, 1981, the plaintiffs appealed from the building inspector's decision to the board. On January 14, 1982, the board held a hearing on the appeal and also heard Lovell's argument that the board lacked jurisdiction. On February 1, 1982, the board filed a written decision with the town clerk in which it stated that it had "no jurisdiction to hear the issue of the building permit as the appeal appears to be untimely." While the board's decision is a bit unclear, it also appears that the board believed that it lacked jurisdiction to hear the appeal pertaining to Lovell's use On February 17, 1982, the plaintiffs filed two complaints in the Superior Court alleging that they were aggrieved by the board's decision. The complaints sought (a) to enjoin Lovell from maintaining and using eighteen-wheel vehicles on its property and from using the second garage built pursuant to the permit in violation of the by-law; (b) orders directing the building inspector to compel removal of the garage and prohibiting Lovell's use of eighteen-wheel vehicles; and (c) a further order confining Lovell's operations to the level of nonconforming use permitted by the 1965 variance. Lovell filed motions to dismiss both actions on the ground that the Superior Court lacked jurisdiction. A judge of the Superior Court denied Lovell's motions and considered the cases on their merits. He concluded that the board had erred and entered the judgments described earlier.

                of eighteen-wheel vehicles.  Nevertheless, the board agreed to decide the merits "in order that the [t]own, the parties and the public may have the benefit of our opinion."   The board upheld both decisions of the building inspector
                

1. Resolution of the jurisdictional questions requires examination of the pertinent provisions of §§ 7, 8, and 15 of G.L. c. 40A. ⁷

The building inspector in Duxbury is the officer charged with enforcement of the Duxbury zoning by-law. Section 7 of G.L. c. 40A provides that the building inspector "shall notify, in writing, the party requesting ... enforcement [of the zoning by-law] of any action or refusal to act, and the reasons therefor, within fourteen days of receipt of [a] request" for enforcement. Under § 8 of G.L. c. 40A, a person aggrieved "by reason of his inability to obtain ... enforcement action" has a right of appeal to the permit granting authority, here the board. Under § 15 of c. 40 A, any such appeal must be taken "within thirty days from the date of the order or decision which is being appealed." The language of the proviso in the second paragraph of § 7, however, establishes a six-year limitations period for actions seeking to remedy zoning violations arising out of alleged unlawful activities conducted pursuant to an "original building permit." ⁸

Lovell urges a strict construction of these statutes. As to the dispute over the eighteen-wheel vehicles, Lovell argues that the building inspector's failure to respond by July 6, 1981, the fourteenth day following the plaintiffs' June 22 letter, constituted a constructive denial of its request for enforcement and that the thirty-day appeal period specified in § 15 commenced running on that date and expired on August 5, 1981. As to the dispute over the building permit, Lovell measures the thirty-day appeal period from the date of the permit's issuance (July 10, 1981) making (according to its argument) an appeal from the permit's grant untimely if brought later than The plaintiffs, on the other hand, look to the building inspector's written denial, on November 18, 1981, of both their requests for enforcement as the date which started the running of the thirty-day clock under § 15. In the plaintiffs' view, appeals filed with the board on November 19, 1981, and with the Superior Court on February 17, 1982 (the latter within twenty days of the filing of the board's decision with the town clerk, on February 1, 1982, see G.L. c. 40A, § 17), were timely.

August 10, 1981. In Lovell's view, the requests for enforcement initiated by the letters of the plaintiffs' counsel on October 19, 1981 (followed by the building inspector's negative reply to those requests on November 18, 1981, and the plaintiffs' appeal to the board on November 19, 1981), were untimely in all respects.

We think that the written decision required of a building inspector by § 7 should be deemed the operative event for purposes of the plaintiffs' rights of appeal. Section 7 is unambiguous in requiring a response "in writing" with "the reasons therefor" when a building inspector "declines to act" on a request for enforcement. See Quinn v. Zoning Bd. of Appeals of Dalton, 18 Mass.App. 191, 194-195, 464 N.E.2d 395 (1984) (where language of a statute is unambiguous, a court will construe it in accordance with its plain language). We also think that the language of § 8, which confers the right to appeal upon a "person aggrieved by reason of his inability to obtain ... enforcement" contemplates, as a precondition to the right of appeal, the written response declining enforcement described in § 7.

In support of this interpretation, we consider significant the lack of any indication in either § 7 or § 8 that a building inspector's failure to respond within fourteen days to an enforcement request is to be deemed a constructive denial of the request for purposes of setting in motion the thirty-day appeal period provided by § 15. The fact that the Legislature, in other provisions of the present Zoning Act, has made express provision for the effect of failures to act by local zoning authorities strongly suggests that the absence of any like provision in § 7 or § 8 is purposeful. ⁹ Not only is an interpretation of §§ 7, 8 and 15 which links the time for an appeal by an aggrieved party to the permit granting authority to the date of the building inspector's written decision under § 7 faithful to the reasonably plain wording of the statutes, but it also provides a means for the fair and practical administration of the provisions of c. 40A governing enforcement of a zoning by-law at the local stage. ¹⁰

We are not persuaded that a more restrictive construction is required by the designation in § 7 of a fourteen-day period for a response by the building inspector. This period is obviously designed to encourage promptness. In some cases, however, a building inspector may not be able to act on a request within fourteen days for legitimate reasons, such as (for example) the inspector's need to obtain further information from the complaining parties to clarify the nature of the complaint or his need to consult with other municipal boards or officers having an interest in the matter. ¹¹ In our view, the fourteen day requirement in § 7 "relates only to the time of performance of a duty by a public officer and does not go to the essence of the thing to be done," Cheney v. Coughlin, 201 Mass. 204, 211, 87...