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32C-179 (2) Dated: Fr • an Seewald BBO # 546790 Attorney for Jay Fleitman, M.D. SEEWALD,JANKOWSKI & SPENCER, P.C. Five East Pleasant Street Amherst, Massachusetts 01002 (413) 549-0041 (413) 549-3818 Fax AS @SJSAmherst.com Page 6 of 6 but it can't be both." Memorandum of Law Submitted on Behalf of Mark Naidorf, at p. 5. In so arguing, Mr. Naidorf misapprehends the important distinction between the two Tables. He also ignores the plain language of the Ordinance, which vests in the Building Commissioner the discretion to determine that a use categorized under the Table of Use Regulations, if mechanically applied under the Table of Off-Street Parking Regulations, would not further the intent of the parking regulations to assure that the parking required is that which serves the parking needs generated by the particular use. While one would expect that in the vast majority of cases the use category under both Tables would be the same, the Ordinance recognizes that that is not always the case. The safety valve included in the Ordinance was provided for situations just like the one before this Board. Instead of requiring the Commissioner to blindly apply parking requirements to uses not generating the typical need for parking, the Ordinance provides flexibility through a"closest use" detemiination. It is almost too obvious to state that the parking needs generated by the sleep lab will be far more like those that would be generated by a hotel/motel than those to one would expect to be generated by a typical medical office. By way of example, a medical office with four (4) examining rooms that books four(4) patients per hour in each room could have sixteen (16) automobiles parking every hour throughout the work day. Here, like a hotel/motel, the parking need generated by the two (2) sleeping rooms would be two (2) automobiles parking over an eight (8)hour period. Unlike a medical office (and like a motel), those parking needs would be almost exclusively at night. The Building Commissioner's decision to apply the hotel/motel parking requirements to this use was a reasonable and rational exercise of the discretion vested in him by the Ordinance. That decision should be upheld, and Mr. Naidorf s appeal denied. Page 5 of 6 Mr.•Naidorf, through his counsel, assails the Building Commissioner's determination on two bases. First, in an argument that strains the limits of credulity, Mr. Naidorf would have this Board find that this minuscule commercial structure constitutes a"medical center." One is left to wonder how a building of this size could ever be considered a medical center. Moreover, a plain reading of the Ordinance, which provides that a medical center is a use that includes "accessory medical research and associated facilities" is obviously inapplicable. Dr. Fleitman's building will contain no accessory uses, medical research or otherwise. The only use proposed is the primary use—that of a sleep laboratory for collection of data. This proposed use is no more a medical center than is any other office of a physician, physical therapist, dentist, chiropractor or medical laboratory, each of which has historically(and properly) been treated as a miscellaneous professional office. There can be no genuine dispute that, for purposes of the Table of Use Regulations, Dr. Fleitman's proposed use falls squarely within the miscellaneous professional office category as determined by the Building Commissioner. This Board should reject Mr. Naidorf's hollow and baseless attempt to frustrate Dr. Fleitman's project by trying to shoehorn it into a use category into which it does not fit in order for the use to be deemed one that is either prohibited or one that requires a special m ::nit. Next, Mr. Naidorf argues that, even if the use would be a medical office allowed by right in the GB District, the parking provided therefor is noncompliant with the Ordinance. He criticizes the Building Commissioner for finding that the proposed use fits under two different categories for two different purposes— one under the Table of Use Regulations (miscellaneous professional offices) and another under the Table of Off-Street Parking Regulations (hotel/motel). According to Mr. Naidorf, "[t]he Use may be either professional offices or a hotel, Page 4 of 6 The Building Commissioner Properly Applied the "Closest Use" to the Proposed Sleep Center In response to the letter from Mr. Naidorf, the Building Commissioner properly stated that the proposed use falls within the "miscellaneous professional offices" category under the Table of Use Regulations in § 5.2 of the Ordinance,' a use allowed as of right in the GB District. The default parking requirement for such a medical office under the Table would require one (1) space per 200 feet of gross floor area. The Building Commissioner recognized, however, that the specific use proposed by Dr. Fleitman will not generate a need for parking in the manner and to the extent that a typical medical office would be expected to generate. The default parking regulation envisions a medical office where multiple examination rooms are occupied several times an hour by patients coming and going. In furtherance of the goal of the parking regulations, the Building Commissioner properly recognized that this proposed use, which would be exclusively at night and where only one patient would use each room for the entire night, is fundamentally different in its parking-generation characteristics than a typical medical office. Therefore, the Commissioner exercised the discretion vested in him by the Ordinance, and he looked for a use that has parking-genF''ation characteristics similar to the proposed sleep laboratory. His determination that the closest use to one where a person arrives at night, sleeps in a room, and leaves in the morning is a hotel/motel. That determination is entirely rational and reasonable, and it is fully supported by the facts. That use category states as follows: Miscellaneous professional and business offices and services including,but not limited to,medical, legal, and other professional services and finance,banking,insurance and real estate offices. Page 3 of 6 building overnight. There would be no other use of the building during the day except, perhaps, cleaning and maintenance. The building permit was issued on or about October 11, 2006. Construction of the building has proceeded expeditiously and is nearing completion. In an undated letter to the Office of the Building Inspector, Mr. Naidorf, as President of Cherry Realty, Inc., claimed that the building permit is in violation of the parking requirements of the Northampton Zoning Ordinance, and he requested that the construction be stopped. In a letter dated October 26, 2006, Anthony Patillo, Building Commissioner, denied that request. Mr. Naidorf has appealed that denial to this Board, seeking to have this Board overrule the Building Commissioner and order the construction to be stopped. The Relevant Provisions of the Zoning Ordinance Section 8.1 of the Northampton Zoning Ordinance ("NZO")'contains a.Table of Off- Street Parking Regulations. The goal of those Regulations is to assure that "[p]arking shall be provided to serve the parking needs which are generated by a particular use or structure." NZO, § 8.1(3). As with most parking provisions, the Table provides default parking requirements for various uses allowed under“- ; Ordinance. In furtherance of the goal of tying parking requirements to actual parking needs, however, the Table also allows the Building Commissioner to adjust those default parking requirements where, as here, the specifics of the proposal make clear that the use would not generate the need for parking that such a use would presumptively generate. Thus the Building Commissioner may apply to "[a]ny permitted use covered by this schedule"the use that for parking purposes he deteiniines to be closest to the actual use. Page 2 of 6 COMMONWEALTH OF MASSACHUSETTS CITY OF NORTHAMPTON ZONING BOARD OF APPEALS IN RE: APPLICANT: MARK NAIDORF PREMISES: 334 PLEASANT STREET, NORTHAMPTON, MA MEMORANDUM ON BEHALF OF JAY FLEITMAN, M.D. This memorandum is submitted on behalf of Jay Fleitman, M.D. relative to the appeal of Mark Naidorf. For the reasons that follow, Dr. Fleitman submits that this Board should affirm the decision of the Building Commissioner and deny Mr. Naidorf s enforcement request. The Property The property at issue is located at 332-334 Pleasant Street, Northampton. It is located in the General Business (GB) District. The lot has 4,145 square feet of area and 62 feet of frontage on Pleasant Street, a state highway. The locus is surrounded by mixed commercial uses, including that of Mr. Naidorf, who owns a commercial structure containing approximately 8,852 square feet of floor area. The Proposed Use of the Property On or about October 10, 2006, Dr. Fleitman caused an application for a building permit to be filed with the Building Commissioner for the construction of a commercial structure containing approximately 1,658 square feet of floor area not including the basement (312 square feet). Dr. Fleitman intends to use the structure to operate a"sleep laboratory" where data regarding a person' s sleep patterns are collected in an effort to help diagnose sleep disorders. Specifically, the structure would contain two (2) sleep rooms, each of which would have one person arriving at night, sleeping through the night, and leaving in the morning. An attendant or technician would oversee the diagnostic aspects of the lab, and he or she would remain in the Page 7 of 7 • 774 N.E.2d 1107 Page 6 55 Mass.App.Ct.748, 774 N.E.2d 1107 (Cite as: 55 Mass.App.Ct.748,774 N.E.2d 1107) Mass.App.Ct.,2002. Fitch v.Board of Appeals of Concord 55 Mass.App.Ct.748,774 N.E.2d 1107 END OF DOCUMENT ©2007 Thomson/West.No Claim to Orig.U.S. Govt.Works. http://web2.westlaw.cons/print/printstream.aspx?utid=%7bC914F9ED-5F74-4707-B9FD-E... 1/31/2007 Page 6 of 7 774 N.E.2d 1107 Page 5 55 Mass.App.Ct.748, 774 N.E.2d 1107 (Cite as:55 Mass.App.Ct.748,774 N.E.2d 1107) board, says the contrary. That is a controversy Section 6,fourth par.,reads as follows: between them. See Woods v. Newton, 349 Mass. "Any increase in area, frontage, width, yard, or 373, 378-379, 208 N.E.2d 508 (1965). See also depth requirements of a zoning ordinance or by-law Noonan v. Moulton, 348 Mass. 633, 637, 204 shall not apply to a lot for single and two-family N.E.2d 897 (1965); Stow v. Pugsley, 349 Mass. residential use which at the time of recording or 329, 331, 207 N.E.2d 908 (1965). The motion to endorsement, whichever occurs sooner was not held amend the complaint to add a prayer**1112 for a in common ownership with any adjoining land, declaratory judgment should have been allowed. conformed to the then existing requirements and had less than the proposed requirement but at least [5] c. Petition under G.L. c. 240, sC 14A. The five thousand square feet of area and fifty feet of plaintiffs' assented to motion to amend their frontage." complaint also sought to obtain a decision under G.L. c. 240, § 14A, as to the lawfulness of The design of G.L. c. 40A, § 6, is to permit the use Cavanagh's right to build on the locus. The cases of lots that were once lawful and cannot be made have described that statute "as intended to permit compliant with subsequently adopted zoning code any landowner to petition for a decision concerning requirements by adding adjoining land of the owner. the validity or invalidity of any zoning restriction See Sturges v. Chilmark, supra at 261, 402 N.E.2d applicable to his land." Sturges v. Chilmark, 380 1346. Mass. 246, 249, 402 N.E.2d 1346 (1980). Mastriani v. Building Inspector of Monson, 19 Assume that rather than owning lots that back up Mass.App.Ct. 989, 990, 475 N.E.2d 408 (1985). A against each other, Cavanagh owned a lot adjoining landowner may *754 also petition under § 14A the locus with seventy feet of frontage on the same concerning land other than his own in the limited street, Central Street. On those hypothetical facts, circumstances where the proposed use on that other she would be obliged to treat the two lots as merged . land has a direct effect on his. Harrison v. because the frontage of the second lot when *755 Braintree, 355 Mass. 651, 654-655, 247 N.E.2d added to the first produces a parcel of land that is 356 (1969). Mastriani v. Building Inspector of compliant with the Concord by-law's requirement of Monson, supra. While it is likely that Fitch and a minimum of eighty feet of frontage. See Preston Cote would be adversely affected by construction of v. Board of Appeals of Hull, supra at 238-243, 744 a building on the locus, which they abut, we do not N.E.2d 1126. Does the case stand differently if, as assume that act and leave its determination, if here, the dimensional deficiency of the locus cannot necessary-,to the Land Court on remand. be cured, or made less nonconforming, see Planning Bd. of Norwell v. Serena, 27 [6] d. Whether the locus is a buildable lot. General Mass.App.Ct. 689, 690-691, 542 N.E.2d 314 (1989) Laws c. 40A, § 6, " `grandfathers' once buildable , S.C., 406 Mass. 1008, 550 N.E.2d 1390 (1990), by lots held in separate ownership at the time a zoning merging it with the adjoining lot? Cf. Sturges v. change resulted in a particular parcel losing its Chilmark, supra. Or is it conclusive that, read status as a valid residential lot." Preston v. Board literally, the statute does not confer -grandfather of Appeals of Hull, 51 Mass.App.Ct. 236, 239, 744 status on any lot owned in common with an N.E.2d 1126 (2001), and cases there cited, adjoining**1113 lot at the time the limiting zoning particularly, Adarnowicz v. Ipswich, 395 Mass. 757, rovision was adopted? These p p questions have not 764, 481 N.E.2d 1368 (1985). In this case, the two been briefed by any of the parties. We, therefore, lots-the locus and the Main Street lot-as noted, do not decide the substantive issue. share a common rear lot line, i.e., the lots back up against each other. They have been owned The judgment of dismissal is reversed; the case is together since 1930, well before the town adopted remanded to the Land Court for further proceedings the eighty-foot minimum frontage requirement in on the merits. 1950. So ordered. ©2007 Thomson/West.No Claim to Orig.U.S. Govt.Works. http://web2.wes tlaw.com/print/printstream.aspx?utid=%7b C914F 9ED-5F74-4707-E 9FD-E... 1/31/2007 Page 5 of 7 774 N.E.2d 1107 Page 4 55 Mass.App.Ct. 748, 774 N.E.2d 1107 (Cite as: 55 Mass.App.Ct.748,774 N.E.2d 1107) what the Legislature appears to have anticipated and contested.FNO Reciprocally, it would impose an determined to enable. In its "1972 Report on *752 unreasonable burden on persons aggrieved by the Zoning in Massachusetts/Proposed Changes and issuance of a *753 building permit, as Fitch and Additions to the Zoning Enabling Act Chapter 40A," Cote are, to keep constant watch whether any the Department of Community Affairs stated that construction is starting on the location in question. enforcing zoning requirements, especially FN7 dimensional regulations, "after construction has begun or in some cases, proceeded to completion, is uneconomical for both the developer and the FN6. We may assume that the land owner community." 1972 House Doc. No. 5009, at 56. FNS found it necessary to have some building If **1111 a requesting party is aggrieved by plans prepared in order to obtain a the administrative official's decision, it has "a right building permit, although for purposes of to seek administrative relief from the board under G.L. c. 40A, testing a zoning question, less than a §§ 8 and 15, and, after exhausting complete set of contract drawings can be administrative remedies, a right to obtain judicial sufficient. review pursuant to G.L. c. 40A, § 17." Yokes v. Avery W. Lovell, Inc., supra at 482-483, 468 FN7. This is not a case of a landowner N.E.2d 271. See Green v. Board of Appeals of being compelled to defend a hypothetical Provincetown, 404-Mass: 571, 574, 53'6 N.E.2d 584 right to build. It was Cavanagh who (1989), triggered the controversy by applying for and obtaining a building permit. FNS. That report established some of the Here, the parties made known their positions ground for the comprehensive revision of through all the administrative steps prior to filing the State zoning act effected by St.1975, c. for judicial review. Contrast Neuhaus v. Building 808, § 3. The Department of Community Inspector of Marlborough, 11 Mass.App.Ct. 230, Affairs is now known as the Department of 415 N.E.2d 235 (1981). It would be a reproach to Housing and Community Development. justice to refuse to answer the issue they have See St.1996, c. 204, § 15. placed before the court and to send them back to " Go" on the game board, there to begin, all over [3] The case before us illustrates the utility of the again the laborious and expensive process of procedure that the 1972 Report recommended and seeking enforcement, going to the board, and filing which found its way into G.L. c. 40A, §§ 7, 8, 15, a new complaint in a court. and 17. Fitch and Cote have made entirely plain by their statutory enforcement request, petition for [4] b. Declaratory judgment. With the assent of relief to the board, and complaint for judicial the parties, the plaintiffs moved to amend their review that they oppose the designation and use of complaint to seek declaratory relief under G.L. c. the locus as a buildable lot on the ground that, as 231A. The motion to amend was denied on matter of law, it is not. Cavanagh, by her earlier grounds of futility, namely that there was no actual applications to the board and by her taking out a controversy. The genuine dispute about whether building permit,has manifested that she desires to the locus is a grandfathered lot did not evaporate build a house on the locus and has been told by the because Cavanagh's building permit had expired. board that she can do so. Reasonably, Cavanagh The time consumed in administrative process and did not persevere with construction in the face of getting to a decisive point in judicial review of the proceedings to have such construction declared decision of a board of appeal will generally exceed unlawful. It would be wasteful for Cavanagh, or the six months that limit the life of a building anyone similarly situated, to hire a contractor and permit. Yet two citizens have asserted their view have that contractor do some initial construction that an enforcing official has violated the zoning just so that the validity of her permit could be law. The official, with the endorsement of the ©2007 Thomson/West.No Claim to Orig.U.S. Govt.Works. http://web2.westlaw.com/print/printstream.aspx?utid=%7bC914F9ED-5F74-4707-B9FD-E... 1/31/2007 Page 4 of 7 774 N.E.2d 1107 Page 3 55 Mass.App.Ct. 748,774 N.E.2d 1107 (Cite as: 55 Mass.App.Ct.748,774 N.E.2d 1107) Mass.App.Ct. 424, 771 N.E.2d 199 (2002). From violation of the same and such officer ... declines to the building commissioner's action, Fitch and Cote act, he *751 shall notify, in writing, the party filed a timely appeal with the board on July 9, 1999. requesting such enforcement of any action or refusal See G.L. c. 40A, §§ 8, 15. Following a hearing to act, and the reasons therefor, within fourteen days on the Fitch/Cote appeal, the board, on September of receipt of such request." 22, 1999, denied relief, citing its decision in 1998 that the locus was a lot on which a single-family General Laws c. 40A, § 8, as inserted by St.1975, c. house could lawfully be built. From that decision, 808, § 3, authorizes an appeal to the "permit Fitch and Cote on October 12, 1999, filed a timely granting authority"-in this case the board-by any appeal seeking judicial review in the Land Court. person aggrieved by inability to obtain enforcement See G.L. c. 40A, § 17. At the time the motion for action. A party has thirty days from the date of the summary judgment was argued before the Land order by which that party is aggrieved to take its Court on September 6, 2000, Cavanagh's building appeal to the permit granting authority. G.L. c. permit had expired. ¢ 40A, § 15. If aggrieved by the action of the permit granting authority, as the plaintiffs here were, G.L. c. 40A, § 17, authorizes the filing of an action FN4. Under 780 Code Mass. Regs. § 111.8 within twenty days after the decision has been filed (1998), "[a]ny permit issued shall be in the office of the town clerk. All those steps deemed abandoned and invalid unless the Fitch and Cote followed faithfully within the work authorized by it shall have prescribed time limits. Compare Elio v: Zoning commenced within six months after its Board of Appeals of Barnstable, supra. issuance," unless the building commissioner, for cause, has granted a On the basis of the plain language of the statutes, six-month extension. As the permit was Fitch and Cote were entitled to adjudication of the issued April 7, 1999, it expired October 7, appeal under G.L. c. 40A, § 17. That entitlement 1999, five days before the plaintiffs' action was explicated in Voices v. Avery W Lovell, Inc., 18 was filed in the Land Court. Mass.App.Ct. 471, 480-483, 468 N.E.2d 271 (1984) . We observed there that the request for 2. Discussion. a. The request for enforcement. As enforcement procedure was independent of the right we understand the decision of the Land Court judge, to take an appeal under G.L. c. 40A, § 15, within his reason for dismissing the complaint was that it thirty days of the issuance of a permit. That was so was premature: no construction had begun under because there is no public notice of the issuance of **1210 the building permit that Fitch and Cote a building permit. If a § 15 appeal were the sole wanted to have declared unlawful. He faulted the remedy for a party aggrieved, the recipient of a plaintiffs for not appealing from the issuance of the permit could keep the permit under wraps for thirty permit and wrote that the plaintiffs "cannot use the days and then would have succeeded in foreclosing enforcement request route as a collateral attack on any challenge.Id. at 482 n. 17,468 N.E.2d 271. the 1999 permit itself" The judge also treated as consequential that the permit had lapsed. We are [1][2] For that reason, the Legislature adopted the of opinion that the plaintiffs were entitled to enforcement procedure that appears in G.L. c. 40A, adjudication of their appeal on the basis of the § 7. That procedure provides an alternative menus applicable statutory language, the decisional law, "to stop allegedly unlawful construction from going and sound public policy. forward under color of' the challenged permit. Voices v. Avery W. Lovell, Inc., supra at 483, 468 Section 7 of c. 40A of the General Laws, as N.E.2d 271. Although some construction had amended by St.1986, c. 557, § 55,provides: begun in the Yokes case by the time the § 7 "If the officer ... charged with enforcement of enforcement mechanism was invoked, use of § 7 zoning ... by-laws is requested in writing to enforce before construction has begun is not an such ... by-laws against any person allegedly in impermissible preemptive strike; it is precisely ©2007 Thomson/West.No Claim to Orig.U.S Govt. Works. http://web2.westlaw.cam/print/printstream.aspx?utid=%7bC914F9ED-5F74-4707-B 9FD-E... 1/31/2007 Page 3 of 7 774 N.E.2d 1107 Page 2 , 55 Mass.App.Ct.748,774 N.E.2d 1107 (Cite as: 55 Mass.App.Ct.748,774 N.E.2d 1107) [5]Zoning and Planning 414764 4.5 feet shy. 414 Zoning and Planning Adjoining the locus, along a common rear lot line, 414XI Enforcement of Regulations Cavanagh owned a lot with 67.80 feet of frontage 414XI(A)In General on Main Street. On that lot was a single-family 414k764 k. Rights and Remedies of house, lawful as a nonconforming use, in which Individuals.Most Cited Cases Cavanagh,resided.FN3 The locus and the adjoining Citizens who objected to issuance of building lot on Main Street have been in common ownership permit to property owner could not petition for since 1930. judicial determination of zoning restrictions; petition procedure was available only to property owners for their own land.M.G.L.A.c.240, § 14A. FN3. The house on the undersized lot was a nonconforming use because it existed [6] Zoning and Planning 414€321 prior to the coming into being of the zoning regulation that prohibited a house 414 Zoning and Planning on a lot with less than 80 feet of frontage. 414VI Nonconforming Uses Mendes v. Board of Appeals of Barnstable, 414k321 k.In General.Most Cited Cases. 28 Mass.App.Ct. 527, 529-530, 552 Statute governing existing structures, uses, or N.E.2d 604(1990). permits "grandfathers" once-buildable lots that were held in separate ownership at the time when a On April 7, 1999, the building commissioner of zoning change resulted in a particular parcel losing Concord issued to Cavanagh a permit to build a its status as a valid residential lot. M.G.L.A. c. single-family house on the locus. In doing so, the 40A, § 6. building commissioner relied on a proceeding in 1998 before the board that had involved the locus. At that time, Cavanagh had asked the board for a **1108 *748 Mark Bobrowski, Foxboro, for the variance or, in the alternative, a special permit to plaintiffs. use the locus as a single-family residence. lot. The board had denied relief to Cavanagh on the ground Present: LENK,KASS,&McHUGH,JJ. that it was not necessary. The locus, the board KASS,J. wrote in its decision, was "grandfathered" and " -Sofa itch and Thomas Cote uied an appeal under pp only the most pedantic and unimaginative zoning G.L. c. 40A, § 17, in the Land Court, from a board could view the matter otherwise." The board decision of the Board of Appeals of Concord advised the building commissioner to "be mindful (board) that had validated a building*749 permit of the [b]oard's position on this matter. If for the construction of a single-family house on land Applicant requests a building permit for the lot on adjoining theirs. A judge of the Land Court Central Street, it should not be denied on the dismissed their action on the ground that it was not grounds that it is not a grandfathered building lot." ripe.We reverse. • By letter dated June 3, 1999, Fitch and Cote, *,Fnn i Facts. .. �..._ decided the 1109 1. Facts. The judge decideLL h case on a through counsel, conformably with G.L. c. 40A, § i motion for summary judgment. These are the , wrote to the building commissioner, in his capacity material and undisputed facts. Bessie Adele as zoning enforcement officer, requesting him to Cavanagh owns a vacant parcel of land at 188 enforce the zoning by-law of Concord by rescinding Central Street, Concord (locus), that contains *750 the building permit. Within twelve days-on 10,513 square feet and has frontage of 75.5 feet. June 15-the building commissioner responded in The required frontage for a "buildable lot" in the writing, as the statute requires, that he declined to zoning district (residence C) in which the locus is act on the Fitch/Cote request. See and compare situated is 80 feet; thus, the frontage of the locus is .Elio v. Zoning Board of Appeals of Barnstable, 55 ©2007 Thomson/West.No Claim to Orig.U.S. Govt. Works. htlp://web2.westlaw.con/print/printstream.aspx?utid=%7bC914F9ED-5F74-4707-B9FD-E... 1/31/2007 Page 2 of 7 774 N.E.2d 1107 Page 1 55 Mass.App.Ct. 748, 774 N.E.2d 1107 (Cite as: 55 Mass.App.Ct.748,774 N.E.2d 1107) 7, 15. Fitch v. Board of Appeals of ConcordMass.App.Ct.,2002. [2] Zoning and Planning 414€764 Appeals Court of Massachusetts,Middlesex. Stona FITCH and another1 1 414 Zoning and Planning 414X1 Enforcement of Regulations 414XI(A)In General FN1.Thomas Cote. 414k764 k. Rights and Remedies of v Individuals.Most Cited Cases BOARD OF APPEALS OF CONCORD and If a party requesting enforcement of zoning another.FN2 regulations is aggrieved by the administrative official's decision, it has a right to seek administrative relief from the board of appeals, and FN2.Bessie Adele Cavanagh. after exhausting administrative remedies,.a right to No. 00-P-1711. obtain judicial review. M.G.L.A. c. 40A, §§ 7, 8, 15 Argued May 7,2002. Decided Sept. 6,2002. [3]Zoning and Planning 414'764 Citizens sought judicial review of decision by city 414 Zoning and Pl''anning_ board of appeals that upheld grant of building 414X1 Enforcement of Regulations permit to property owner. The Land Court 414X1(A)In General Depth hnent, Leon J. Lombardi, J., entered summary 414k764 k. Rights and Remedies of judgment for owner. Citizens appealed. The Individuals.Most Cited Cases Appeals Court, Kass, J., held that: (1) citizens were Citizens who objected to issuance of building entitled to adjudication of appeal; (2) they were permit to property owner were entitled ' to entitled to amend their complaint to add a claim for adjudication of their appeal from board of appeal's declaratory relief; and (3) they could not use refusal of enforcement; they, were not required to statutory petition procedure to bring challenge. take appeal from issuance of permit. M.G.L.A. c. 40A, §§ 7, 8, 15, 17. Reversed and remanded. West Headnotes [4]Declaratory Judgment 118A324 [1]Zoning and Planning 414 €761 118A Declaratory Judgment 414 Zoning and Planning 118AIII Proceedings 414X1 Enforcement of Regulations 118AIII(D)Pleading 414XI(A)In General 118Ak324 k. Amended and Supplemental 414k761 k. Power and Duty to Enforce. Pleadings.Most Cited Cases Most Cited Cases Citizens challenging building permit were entitled Enforcement procedure for zoning regulations to amend their complaint to add a claim for provides a means alternative to appeal from declaratory judgment; there was a genuine dispute issuance of a building permit to stop allegedly about whether permit locus was grandfathered lot. unlawful construction from going forward under M.G.L.A. c. 231A, § 1 et seq. color of the challenged permit. M.G.L.A. c. 40A, §§ ©2007 Thomson/West.No Claim to Orig.U.S. Govt.Works. http://web2.westlaw.com/print/printstream.aspx?utid=%7bC914F9ED-5F74-4707-E9FD-E... 1/31/2007 46&N.E.2d 271 Page 12 (Cite M A.p.0 7 *4s9-, 48 'tea 271, **282) tis.l�e as: 18 as'i`S,rsts}r•.�..�.�:a� 448� .iri�%v� the summer months but only with difficulty during the safety of themselves and their families while driving winter months when there is sow,' On one area on the neighborhood roads," road with a fairly sharp curve, residents have been run off the road by eighteen-wheelers travelling _. toward them. Neighborhood children have been 18 Mass App i. i!:3 s .2 271 forced -o abandon. Mayflower Pet as a bicycle rome. Residents report being behigregululy in fear for the END OF DOCUMENT 2007 Thomson,West.No Claim to Orig.U.S. Govt.Works. 468 N.E.2d 271 Page 11 (Cite as: 18 Maa.s".Anp.Ctt.471, *437, 448 N.E.2d 271,**281) 687, 690, 71 N.E.2d 235 (1947); Perez v. Balton several eighteen-wheelers in connection with its Housing a , 379 Mass. �;� 400 N.E.2d The L rou i d Authy., 3%;+ Mass. 703, 730, 400 1 V.u.2d business. The terms of the pals neei p are basically 1231 (1984 The italicized -language, however, is that Francesco may have full use of Lovell's overbroad,since t he facts feamd by the judge indicate Mayflower Street facilities for sto rage and that suppliers of Lovell's cesspool business had,from maintenance of its vehicles and that Lovell may have the inception of the business at the Mayflower Street use of Fra cesco's vehicles as Lovell-may need them. site; made deliveries of materials, as necessary to for deliveries and so forth in connection with its Lovell by means of eighteen-wheel vehicles. This business. Francesco has listed 789 Mayflower Street, aspect of the cases must be a-m ended for Duxbury, as its main address since the latter portion reconsideration of the scope of relief grunted in light of 1979. of the scope of the protected prior nonconforming use. The judge,if he deems it neeessary or des ble, "During the early portion of 1981, Lovell, through may hold an eviderakdry hearing. Mfr. Avery Lovell, inquired of the {b}oard whether a special permit would be necessar=y for the The italicized language in paragraph 2 of the construction of an additional garage on the judgments("or allowing the same on his property")is Mayflower Street property. The fb)oard informed vacated and that issue is remanded for the devising of Mr. Lovell that a special permit would not be new relief in accordance with this opinion. The necessary and issued a memorandum to the building balance of the judgments is affirmed The pla nt inspector to that effect__ A building permit was are to have costs of appeal. issued to Lovell in July of 1981. Lovell constructed a second garage, comparable in size to the first So ordered garage,shortly thereafter. The second garage is used for maintenance work on icesco's tracks and APPENDIX storage of trucks and'equipment. Lovell did not have "The plaintiffs live in the .-liediate vicinity of the need for additional storage space for its own vehicles Lovell operation. Plaintiff Yokes resides at 761 and equipment at the time the second garage was Mayflower Se eet and plaintiff Boucher, at 748 constructed. Mayflower Street. { "Inn the years following 1970, a number of residences -282 "Between 1975 and 1979, the Lovell were built in the immediate vicinity of the Lovell operation used and garaged commercial vehicles operation. Persons living in these residences customarily used in a cesspool and septic tank registered no complaints regarding the Lovell maintenance and installation service on the operation with Lovell or town officials prior to the Mayflower Street - property. These .m d�a�u4 & f r portion of 1979. Since that time, residents bulldozers, standard size pump trucks (i.e. not have been complaining. The residents report an eighteen-wheelers), standard *488 size dump trucks, increase in the level of noise emanating from the a 'loader,' and other vehicles of similar size and Lovell operation during the latter portion of I979 function. Vehicles were garaged in the six-stall described by one resident as `phenomenal.` Noises garage which Lovell had built in accordance with the heard are described as 'blasting' sounds, 'chains terms of the 1965 variance. clanking,' horns blowhig, and truck en es starting. Noise is heard at night,at 3 or 4 aim.,and on Sundays "During luring these years, suppliers made infrequent but as well as daring regular business hours. The regular deliveries of materials used in Lovell's neighbors were not disturbed by noise emanating business(e.g., gavel)is eighteen-wheelers.eighteen- from the Lovell operation prior to the latter portion of wheel vehicles ware never regnfar lyy garaged or 1979: maintained on the Mayflower Street property during these years. "The neighbors also repeer that a serious traffic problem has developed since the latter portion of "In the latter portion of 1979, L 11 due to what o resident described `al �"- s _ `.2 Qt oven eL4±ered into a ?�79 'i i:., one....: 53.....u..ueSiiurd3�`a.-'. :.aaQSt general partnership with Francesco Excavation Corp: constant traffic' of eighteen-wheelers on the narrow (Francesco). Francesco is in the business of residential roads in the area suiiminding the Lovell excavating and transporting excavated materials and operation. [Here a footnote observed that *489 'On other bulk materials. Francesco owns and maintains Mayflower Street,two cars are able to pass easily in G 2007 Thomson/West.No Claim to Orig. U.S. Govt.Works. 468 N.E.2d 271 Page 10 (Cite as. 18 r .App.Ct..471,*435, 443 N.E.2d 271,**280) ) Duxbury by-law. There is nothing to original nature and purpose of the use. (2) indicate that •Lovett am- received The ;ridge also correctly concluded that permission(in the form.of either a variance there is of difference in the character and or special crab) to conduct a gMMRi degree oS mouse. between suppliers Jµ-1ak g contracting business (under the present infrequent deliveries of materials by means Duxbuy by-law a nonconforming use of eighteen-wheel vehicles and the garaging carmot be changed except to a ariforng and maitnt"irirg of ei tsar wheel vehicles use or except to another nonconforming use for use in a trucking, general contracting, if a special permit is granted). Thus, the and excavating business. See B7rdgewater fact that eighteen-wheel trucks may have v. Chuwkrem, 35l Mass, at 24, 217 N;E.2d used in ewm ti'Lion . a illepl 726; Cape Resort Hotels, Inc., v. general contracting business is not pertinent Alcoholic Licensing Bd of Falmouth, to an inquiry srgareing whether the requisite 385 Mu„_at 213-214,431 14.E_2d 213. (3) similarity has been shown Lerwi 1 the Finally, the testimony that indicated current use of those trucks and the lawful increased noise, as well as serious traffic cesspool business. Sec Cape Resort Hotels, and safety problems, since. Francesco Ire,v,Alcoholic;l iceraing Bd.of Falmouth, Excavating Corp. started to conduct its 385 Max:. at 214, 431 1`.1..E.2d 213 (the operations from the Mayflower Street increased use must be attributable to gowth premises supported the judge's finding that of the original nonconforming use in order the presence of ei�n-wheel vehicles on to fall within illy rni- that uT v�r�vase iu had effect- - the property ,:��, a13 zffe^ can the volume of business dons not constitute a neighbnrti od that was different in kind._ change m r i s e)._ S e also Kramer v_ ribs Sec Cape Resort Hotels, Inc. v. Alcoholic Bldgs. Co'nnir. of Newton, 353 Mass, 622, Licensing Bd. of Falmouth, 385 Mass. at 427,234 N.E.2d 283-1 ). 214 4:1 N.E.2d 213. Lovell argues that the eighteen-wheel vehicles are [81 3. The remaining questions concern the <L wmg used in connection with the lawful expansion of it agmen s. its cesspool business. On the facts found, the judge r2 eCtly r. r,�7r,ri 4 *48-6 'i,t light of ti -.:�.��.. ...-��.,.._�:..,_-P�,, =�•.4-�:ih '_'-.u'i �e'+th�-°. t.°.f The judge:c:si;.luded `h;``he could not ascertain, party maintaining a nonconforming ing use has the from the record, whether the second garage count be burden of proving any expansion lawful, g*28i see put to la c f el use otherwise made to conform to Y'� 1]�v.._,..:.�.� or d'�r?'S[n5_.. ar3 ..o ..CItfG�Z'�t� Cape Reaart hotels Inc. v. Alcoholic Licensing Bd the by-law, He, therefore, declined to order the of t atitio.Lin. 335 Mass. at 212;431 N. :.2L1 2 13 i that enrage removed penljmo an incur to determine Lovell had failed to demonstrate that the enlarged use whether relief could be obtained under the provisions satisfied the three considerations set forth in of the by-law. Accordingly, part I of the judgments Bridgewater v. Chuc,.ran, 351 Mass. at 23, 217 ordered only that Lovell be enjoined from using the N.E.2d 726. 1FN23J None of the other arguments second garage in connection enjoined with the use nand made by Lovell persuades us that any different maintenance of commerciial vehicles and equipment. conclusion is required. The decision to withhold *487 an order for the removal of the second garage pending the possibility FN23. These considerations are "(1) of further zoning proceedings was within the judge's whether the use heels the 'Aware and discretion. See Cullen v. Building Inspector of purpose' of the use prevailing when the Nur'l h At ieborough, 353 Mass. 671, 678-679, 234 zoning by-law took effect .. [citations Whether N.E2d 727 (1968); Selectmen of Blackstone v. °mined:. (2) �Yhe er there. is a difference Milestone, e< r in file quality or character,Ter. as wail as the S i essone, 4 Mass,itp p. 311, 3 1 6, 348 .r..2d 110 -degree of WC [citat=ion omitted]. (3) <1976). Whether the current use is'different in kind in its effect on the neighborhood...fcit Linn EF(�b)3 Paragraph i o f the. 'i,.rd. xments enjoined Lovell _ omitted.` (1) The original nature and from "garaging or maintaining eighteen-wheel purpose of he use exec ed front the purpose vehicles or allowing the same on his propa!i> fat] zoning by-law was the maintenance end 789 Mayflower Street, Diixbuty" (emphasis construction of cesspools. The judge correctly d i i ;; p, ,:o:t supplied). The non-italicized language fashioned emergence of a new business on the relief which was reasonably related to the grievance premises was an rn;?w„ai change from the to he remedied. See Billerica v. Guinn, 320 Mass. C. 2007 Thomson/West.No Claim to Orig.U.S. Govt.Works. • • 468 N.E.2d 271 Page 9 (Cite as 18 R8 3S.47p,i1,471,*483, 46©N.E.2d 271,**279)the lack of notice. We conclude, without the zoning by-law and the requirements of fonntiaa inng a ge,=.23 7ill,'°.P:;the issue that the by-la followed.o�s-�� N fo,CiN,. See Wilbur V. these appeals Should be decided without -Newton, 302 Mass. 38;43, 18 N.E.2d 365 regard to the plaintiffs'faihne to record the (1938); Inspector of Bldp_ Burlingterz v notice. Compare Pierce v. Board of Murphy, 320 Mass. 207, 210, 68 N.E.2d Appeals of Carver,369 Mass.804,810-812, 918 (1946); Connors v. Burlington, 325 343 N_ .2d 412(1976). Mass. 494,495-496,91 N.E.2d 212(1950); Planning Bd. of Reading v: Board of 2. We rum to a consideration of the merits. In Appeals of Reading, 333 Mass. 657, 660, addition to the facts previously recited in this opinion 132 N.E.2d 386 (1956); Simeorie Stone the "i oe's meroi 5a, ,!e'i coined the additional Corp. v. Board of Appeals of Bourne, 34J Mass, 188,192-193, 186 N.E.2U 457(1962) • findings of fact set forth in the appendix to this . Bowes v. Inspector of Buildings of opemoo'.. Based on all facts rolled, the judge BraciCan. 347 Mass. 295, 297-'98, 197 rated that the construction of the second garage was N.E.2d 676 (1964); Garfeld v. Board of *484 d the of t 356 Mass. 7 7 i��++r beyond tt<2 S:.Op2 ,`3i the 1965 variance iiT`w. .9pFe�sOflic9C;t�tiT�,�JC:v:c3:a.�.,40, constituted an unlawful expansion of a N:E2(1 720 (1969); Powers v. Building nonconforming use in •iol lion of the L zb,:.y Inspector of Barnstable, 363 Mass. 648, zoning by-law. The judge further ruled that Lovell's 658 a. 4, 296 N.E 2d 491 (19 s"). These of eighteen-wheel one l c of tart each of the decisions were under the prior c. 40A, but use or vehicles violated each o. -he there is nothing in the present c.40A which three considerations set forth in Bridgewater v. could give reason to doubt their validity. Chuarzi, 351 Mass,20,23,217 Y. .2u 726(1966),, E FiCFe is also nothing jig the applicable for determining the lawfulness of an expansion of a provisions of the Dirittry zoning by-law nonconforming use. which Would permit the construction of a building of the size of the second garage "'`"'2S() [5}[6} There•was no error in the judge's • without a special .viii t ot>er retie frcu rulings on the matter of the second garage. The 1965 the beam variance confined Lovell to using the property for its , .nee to the T or-r a t7} ks to the etgttteen-\`.`deer vehicles, the )Edge's "cesspool business,both as tom. h- tnaarten.nce'of the findings of fact:(which are supported both by the construction of new eesspoolS," and the Sane and allowed revel to "construct and maintain a [Single] testimony;e found credible and the documentary and demonstrative evidence) make clear that by si six-stall garage [the; ion for the storage and associating n 1 1979 with} FrSTcescoExcaJEt i n Corp.,lainte trance of commercial vehicles and e;i p II @IIt,n The Lovell had vs1•dviished and conduct„side by side on ne va_r'ice sanctioned the fii bt garage solely for the •^mine nr c> vehicles the premises with its cesspool business, a trucking p=l ore of the storage and : ten e of used by Lovell in connection with the use permitted business in connection with work as a general by the variance—the conduct of a cesspool usi31ess, contractor arni excavator, These latter enterprises The ssmstiuc rm of the second garage violated the a were not -mi d by the 19 5 variance 1FN227(and Th limits of the variance (a d, as a result, its 1975 thus were beyond the scope of the 1975 by-law violated the permissible scope of the nonconforming protecting nonconforming uses)and constituted new, substantively different, uses from the authorized use) that permitted construction of only one garage, • business. See Building inspector of Malden v. (F14211 l 1 Lo w-- "e Seiec hen toc,,b;idge v. *4 35 Werlin Realty Inc., 349 Mass. 623, 524-625 211 Monument Inn, Inc,, 14 Mass.App. 957; 959, 4313 N.E.2d 338(1965). N.E.2d 365 (1982) (enlargement of facilities in violation of special permit is an impermissible use of FN22. Lowell argues that the :965 variance 11 - also permilded a general contracting business. There is no mention in the FN21. To the ant that the second garage variance of a general contracting business or might house equipment or vehicles used in of equipment used in general contracting connection .itt' `oAv t1s e sue`: bu,,ress, work to be stored at the Mayficiv,,er Street its construction n was precluded by the rule premises, If Lovell found the variance to that the existence of a lawful nonconforming be ambiguous or incomplete, it had the right use does not permit 11,f, --rettr'r-iri to seek ciarifination or to ppmi additional buildings for the expansion or In 1975, only Lovell's cesspool operation enlargement of that use unless permitted b • became a legal ro ncou nui ng use under the ©2007 Thomson/West.No Claim to Orig.U.S. Govt. Works. 468 N.E.2d 271 Page 8 (Cite as. 18 Mats.App.CL-471,.4s2, 468 N.E.2d 271,**278) • of the action in rest of the permil fciti g, FN 18. Sec -Cape .Resort Hotels, among other rases, the two Kol Alcoholic r,e 5 L;:e:�sireg ?�i o{Falmouth, 385 decisions, see note 15, supra I. in a Mass, at 216-21S, 431 N.E.2d 213. 'see proceeding f r ii-c m of the zoning generally Holmes, Zoning Limitations-- law, howevP, the existence of a permit is Limiting Enforcement of Laws Relating to ineon entail niche.>-as this 3 of Buil(Lings,53 Ma_s-L--.Q.377(1970). the ;Colodny r 1346 Mass. 289, 191 N.E.2d 6911'h s es abli,hed,the 1,?ss by an FN19. These provisions of the new Zoning aggrieved citizen of the right of direct attack Act rid ,tom :de r =be= of sba on a permit does not entail loss of the right L { ©f the same etti2erh to bring a manrijrmvs problems in the prior c. 40A, described.in potion for mti3ri L' i of taw and to inc . oiruirnr and Brady isions, see note stop violations in the construction going 16, supra, and continued the six-year limitations forward under the permit" ( �, t ons period within wn+ h t: Brady citations are omitted.) right could be exercised. • F1'117. The problems arising out of an 141 Here the"original building permit," for purposes _ f T c the e- authorizing constrict aggrieved psi .-'s ueiing nawa. . of Lie o a i Lovell to issuance of a'+building permit still exist. the' second garage. See Cape_resort Hotels, Inc. v. The holder of a building permit has up to six ilk:vire/1k Licensing Bd. of airr if31uh, 385 Mass. 205, mouths from the dote of its issuance to ,17-?18, 431 N.E.2d '7'13 (1982). We view the commence work under the permit.. Sew 780 plaintif' written request on October 19, 1981, for Code of Mass.Regs.§ 114.3{1980). There edorcemert, see note S, sr ,rw as an effor.t to stop is no public notice of the issuance of a t� , - allegedly- unlawful constriction from gig g for card permit. = bolder coald keep under color of that permit, The building inspector's the fact of the permit's issuance secret, permit, from beginning construction under written denial of their request made the plaintiffs, the pemlit for .he thirty-day perial under § S, "persogisi azerieved by reason of[tueirl established by § 15, and thereby foreclose inability to obtain ... enforcement action," and they any further direct review of the legality of thereafter complied, in a timely manner, with the the permits issuance. jurisdictional steps required by c. 40k and the Neuhaus decision, We conclude that the Superior **279 The Brady right appears implicit in the Court had jurisdiction of the appeal trotri the board's addition to 22 of the prior C. 40fi (by i"it83I3S of decision affirming the issuance of the building permit. St.1971), c. 678, § 1) of a proviso es;.ablishina a six- 11'N i f'ee Cza-stensen-v. Zoning&i .re'Appeals of year limitations period for actions seeking to remedy Cambridge, 11 MassApp. 348, 351-352, 416 N.E.2d zoning violations occurring under an "original 522 (1981)(applying g this rule without discussing the building permit." {FN1S] The six-year limitations same). period was inserted in the second paragraph of§ 7 of c,40A,see note 8,strcr, to be read and applied FN20. Prior to commencing their action in conjunction with the written response requirement challenging construction under the permit, of the first paragraph of § 7 and the rights conferred the plaintiffs did not file in the local registry by §§8, 15 and 17. i hus,wiskibessmeamaretogfitin of deeds the no ice required by § 7, see the new Zoning Act, the Brady right to mandamus as a appendix hereto, as a condition of such an action. The notice requirement appears to remedy fOr zoning violations cc's innitea under color of a building permit became a right to r-Clue,t the be in the nature of a his pens ns&signed m gi'v'c, constructive notice to pi vt✓ccti"ve raeiscer z......v g ed with an.t C i,,m focal 7nIl� to en-force �?rCt_-v e r5 and other interested pa..-ties that a the by-law under (IL. c. 40A, § 7, and. if the, question as to zoning exists with regard to requesting party is aggrieved is the inspector's the pro^zrr,. failure to record notice decision,arightto seek actminisii tithe relief from the would ordinarily require dismissal of the s s 8 i ts, ^t?, a er action subject to its being timely recommenced (if it can be), after the exhausting adninitadve remedie,s, a right to s ✓ condition is satisfed, within the six-year ix-year r:i t» th reviry r n am ? r, 40A, a '17 limitations period. it appears here See Neuhaus v, Building Inspector of ;ar F :, however. that there are no other parties, 11 Mass.App. at 232-235,415 N.E.2d 235.fEN191 beyond the p Itif< to thiS action, whnsp Sigh, be..tidy--eiseiy cff'rted by ©2007 ThomsonIWest.No Claim to Orig.U.S. Govt. Works. • 468 N.E.2d 271 - Page 7 (Cite as: 18 Mass.App.Ct,471, *480, 468 N.E.2d 271,**277) • and the appeal to the Superior Court from the board's • 513 (1965),that the right of direct review was not the decision was within the twenty days required by G.L. exclusive remedy. The�— 3' �. Th passage from Brady (at c.40A, § 17. 519-520, 204 N.E.2d 513) set forth in the margin describes the shortcomings of the prior c.40A in this The dispute concerning the building permit involves area and the reasons necessitating an alternative different considerations. Under S 13 of the prior c. • retnedy to correct violations of the zoning bylaw . 40A, a person aggrieved by a decision to issue a made under color of a building permit [FN16] in .buildMg permit could seek direct review of the essence, Brady confirmed '482 the existence of the decision. Until 1963, [FN14] there was no statutory right well-established in Massachusetts jurisprudence, ,e limit for u suWg`tIFt right of review**273 and of -aggrieved 'cif i-reus, to obMin, -by means of the setting of a "reasonable time" limit was left to mandamus, strict enforcement of the zoning by-law, local zoning by-laws. Failure to appeal within` any lEF 1 7 i See Sunderland v. Building Inspector of time period set by the by-law foreclosed the right of North Andover, 328 Mass. 638, 640, 105 N.E.2d 471 da'ect review. Set Kolodny v. Board of Appeals of (1952),and cases cited; Hallenho g v. Billerica, 360 r&rookiine, 346 Mass. 285, 191 N.E.2d 689 (1963). Mass.513,519-520,275 i ..E 2d 525(1971). X15] FN16. "Section 13 of c..4-9A, ass amide`', FNI4. By St1963, c. 207, the Legislature does not, however, establish a deleted the authorization of local zoning by- _comprehensive statutory scheme for laws to prescribe a "reasonable time" for enforcement which restricts to the statutory appeals to be taken under the prior G.L. e procedures action by individual citizens 40A, § 13, and inserted a thirty-day time seeking to invoke the enforcement V -emu fbi 13 appeals iii 16 of the prior-- § P- process.... - Act "The Uncertain relation. of § 13 to the enforcing process is apparent upon FNI5. In Kokithry, the building permits - consideration of• possible eventualities. issued on March 27, 1962,and the plaintiffs Decisiio,�n�s7granting.a permit may not,within 5C:ue 'eliocali,.nn of the Yp i5 on April the appeal period, Lola,.to the attention of . 10, 196 2, -On April 26, 1962,the building }iron who will be aggrieved by a violation - commissioner refused to'revoke the permits - of the zoning law.... Construction under a and the plaintiffs appealed his decision not permit may not be begun within the appeal to do so to the board. The March 27 date period. . The permit, or even construction on which the permits issued was con idered index t, ??y ti)t diniose the violation.... the crucial date for purposes of triggering - There is no requirement in the statute for the ten-day right of appeal s cif red by the notice to all persons possibly affected by ari Brookline zoning by-law as a "reasonable application for a wit. Anwrieved time" for an -appeal. Renee, the persons as to whom applicable provisions in canraiscione?a decision not to revoke i`ae respect of time of appeal are unreasonable permits made atler the expiratioon of the-ten- may proceed by mandamus ft-enforcement day period was not an appealable decision, of the law.... There is nG provision in the that decision being viewed as"no more than statute requiring a written decision on a ret..:Erim Lion of the f;arna issioner's] requests for-enforcement. If the-decision. decision of March 27, 1%2, to issue the not to em.ply -retch a rtcruf is oral,no permits." id.34.6 Marc.at 288„ 191 N.E.2d appeal lies.' There is in such a case nothing 691. A lawsuit based on the building except inaction to show what the decision is, inspec o s April 26 decision was dismissed and of con se no date ofd o frnm. *or -lack o ym-is ie.ion. Ibid. See also '? - e time for app�1.... Koiotiny v. Bu iding Commr. of Brookline, Il as the r is in writing, there 346 Mass.289, 191 N.E.2d€i91(1963),amt is nevertheless no notice to other persons the right to e"t± se the zoning by-law b}i aggnc red and x o basis for barring I+ i mandamus,a.m,us,but_concluding_that.an.nctV seeking from mandamus. There would ' no such -relief on the facts -therein considered was t for c cz to :yQ;c lse i£ the premature. person i g = d*wt appall' from. the enforcing offices ision not tl-act, "Failure to take an appeal within the *481 It was recognized,however, in Brady v. Board prescribed € r„ °�- .,�� A .� �a r P.___-.-_d period from the granting or of Appeals q Westport, 343 Mass. 515,204 N.E.2d denial t 4,..�...�1.3i a permit is a bar to a direct review - ©2007 Thomson/Wesx.No Claim to.Orig. U.S.Govt. Works. • • '468 N.E.2d 271 Page 6 S. 18 Mass.App.C-1 471,*478, 468 N:E.2d 271,**2-76) • for enforcement, if the building inspector time and expense which might accompany takes no action on the request,is the critical resort to a complaint in the nature of fact for our purposes. We cannot supply mandamus. As to the owner's being made the miseing langpc-ze. See Boylston later aware of a request for enforcement, we Dist. v. Tahanto Reg Sch. Dist, 353 Mass. direct attention to the• recommendations • SI.,8344,227 N.E.211 921(1967). made in Neuhaus v. Building Inspector of Marlborough, ii Mass.App.230,235 n. 13, FNIO. An interpretation of § 7 which 415 NE.2d 235.(1981). ' provides for constr.-en-ye denial would likely spawn litigation to determine whether FN12. The legislative history of the fumbling lay inquiries and protests . enforcement and appeals provisions of c. addressed to building.inspectors were in fact 40A clearly supports our conclusion. See definitive requests for enforcement, discussion in 1972 House Doe. No. 5009, at sufficient to start the running of the 59-61, indicating that the written decision fourteen-day decision period, requirement of § 7 is intended to provide a mechanism for direct appeal by an **277 [1:1421 *479 We are not persuaded that a more angieved party to the permit granting restrictive constructiwi is reiiuireu by the desiKruabon in thoeity try creating an "appeal able " in § 7 of a fourteen-day period for a response by the decision and that "the Department [of Cormnunity Aff•- --sl has recommended the building inspector. This period is obviously mandatory prar..nce of req.:ling local designed to encourage promptness. in some cases, .enforcement• officials to render written however, a building inspector may not be able to act decisions in cases where they decline to act on a request within fourteen days for legitimate on requests for enforcement of the zoning reiqnris,siich (frir reiil'•-ple)the-i-rispector's-need to orelin-m or by-laW. 'One-Iles-tilt of this obtain firther information from the complaining procedure, wji be 'm make applicable the parties to clarify the nature of the complaint or his administrative appeal process of such • " need to consult with other municipal boards or situations. -officers having an interest -in the matter. {F1411] hi 17..1 ,' ill . . - our view,the fourteen day requirement in § 7 "relates 13 Sec W iam C Bearce Corp V. Brockton Inspector o f , it • only to the time of performance of a duty by a public Building Mass._App. 930, 416 N.E,2d 509 (1981); officer slid &es not got,,_the c.sse,,,..e of the thing tr, McDonaid's Corp. . v. Seekonk; 12 be done," Cheney v. Coughlin, 201 Mass, 204, 211, Mass.App. 351, -424 N.E.2d 1136 (1981); 87 N.E. 744(1909); therefore it is directory and not Seleyvnen of Tewksimy Granfleld, 17 mandatory. See Cullen v. Building Inspector of Mass_App. 1011, 460 N.E.2d 199 (1984). North AtilOoor°ugh, 353- Mass. 671, 679-680, 234 Neuhaus emd its progeny- smnd for the N.E.2d 727 (1968), and cases cited. We conclude proposition that there can be no resort to that the date on which a zoning-enforcement officer •ixairt-action to enforce the wiring laws until aggieved pasties responds in writing to a § 7 request for enforcement have exhausted their rights of administrative appeal. See also Cape creates the aypealabie decisio.n contemplated by § 3 Resort Hotels, jr. C. v. Alcohoiw Licensing and becomes the date for measuring the thirty-day Bd. of Fainwuth, 385 Mass. 205, 207 n. 3, appeal period set forth in § 15. [FN12; There is 431 N.E.,2d 213(1982). nothing to *480 the contrary in either Neuhaus.v. Building Inspector of,44ar1borough,- 11 Mass.App. [31 Applying this reasoning, we conclude that 230, 415 N.E_2d 235 (1981), in the cases following inrigeictianni requirements pertinent to the complaint that decision, o_r in the Dtixbuiy zoning by- concenaing eighteen-wheel vehicles were met. law. The failure of the building inspector to respond to the plaintiffs' June 22, 1981, request was of no legal FN11. We leave for another occasion consequence. The plaintiffs' right of appeal to the analysis of the concern that a slothful bo_ard_thus_arose on November 1.8., 19S1, When the budding inspector (-vile: prevent inspector first complied with § 7 by his wrinen complaining parties from exercising their response denying enforcement. Appeal to the board rights by doing nothing upon receipt of an from the inspector's refusal of enforcement enforcement request and whether, if the fr inspector refuses to act,the parties seeking seasonably followed within thirty days of the enforcement may have an alternative to the inspector's denial(as required by L. c. 40A, § 15), C 2007 Thomson/West.No Claim to Or U.S. Govt. Works. 468 N.E.2d 271 Page 5 (Cite as: 18 Mass.App.0 t.471,*476, 468 1-.E.2d 271,**275) • Lovell argues that the building inspector's failure to period provided by § 15. The fact that the respond by July 6, 1981, the fourteenth day following Legislature, in other provisions of the present Zoning the plaintiffs' June 22 letter, constituted *477 a Act, has made express provision for the effect of constructive denial of its request for enforcement and failures to act by local :zoning authorities st.orgly that the thirty-day appeal period specified in § 15 suggests that the absence of any like provision in § 7 commenced running on that' date and expired on or § 8 is purposeful. [r N9] Not only is an August 5, 1981. As to the dispute over the building interpretation of §§ 7, 8 and 15 which links the time permit, Lovell measures es the thirty-day appeal period for Cif appeal by an aggrieved party to the permit it from the date of the permit`s issuance(July 10, 1981) granting authority to the date of the building making (according to its argument) an ----appeal from inspector's written decision ?•der § 7 faithful to the the permit's grant untimely if brought later than reasonably plain wording of the statutes, but it also '**276 August 10, 1981. In Lovell's view, the provides a means for the fair and practical. requests for enforcement initiated,by the letters of the administration of the provisions of c. 40A governing plaintiffs' counsel on October 19, 1981 (followed by enforcement of a zoning by-law at the local stage. the building inspector's negative reply to those 'F.N10j requests on November 18, 1981, and the plaintiffs' - appeal to the board on November 19, 19831), were FN9. See the eighth paragraph of G.L. c untimely in all respects. 40A, § 9 (providing that the failure of the special permit g nting authority to take The plaintiffs, on the other hand, look to the building - final action upon an application for a special inspectors written denial, on November 18, 1981, of permit within ninety days following the date both their requests for enforcement as the date which of the public 'nearing on the application the "shall be deemed to be a grant of the permit stta-ted J'e running of the thirty-day:lien under § 15. applied for"),arid the.filth ra a:.:�of§ 15 in the p1ainit.rfs'view, appeals pled with tine board on (providing that the failure of a zoning board November 19 1981, and with the Superior , - - u�v,... ••ae Cv,:r'l on `Jf ap•,�.;15 to act within Sex lty-i.V;,days of February 17, 1982 (the latter within twenty days of an application or petition "shall be deemed t}1e filing of the board's decision with.the town clerk, - to be+the grant of the relief application or on February 1, 1982, see G.L. c. 40A, § 17),-were petition sought")_ See--also •Building timely. Inspector of4ttleboro 17,Attleboro Landfill, Inc., 384 Macs, 109, 423 N.E.2d 1009 z:* ,> that s_ written (construing and applying the rr e . ink that lase w itten decision required of a '-e ca tmctiya a at oval a o,isions of § 9); ,uilr;ng inspector by § 7 should be deemed the Capone v.. Zoning Bd. of Appeals of operative event for purposes of the plaintiffs'rights of Fitchbrrg, 389 Mass.617,451 N.E.2d 1141• appeal. Section 7 is unambiguous in requiring a (1983)� Wia applying the response "in writing" with "the reasons therefor" constructive approval provisions of § 15). when a ect building inspector "declines to act" on a The decisions which construe G.L.c.40A,§ "-" request for enforcement. See Quinn v. Zoning Bd of •§ 9 and 15, state that.a constructive grant Appeals of Dr?iton, 18 Mass.App. 191, 194-195, 464 occurs not only when there is a failure to N.E.2d 395 (1984) (where language of a.statute is make a uCt.Sierr within tiles nary time period but also when there is a failure to file i.nar1vig o s, a corn will construe ii M accordance e decision tivillr the city or town clerk with its plain language). We also 'think that the within the same time frame. See Building language of § 8, which confers the right to appeal n of _s __ the �= appeal Inspector of Attleboro v.A»'ebcro upon a"person aggrieved by reason of his Mobility to Inc., 384 Mass. at 110-111, 423 N.E.2d obtain ... en brcemen_" contemplates, as a 1009; Capone v. Zoning M of Appeals of precondition to the right of appeal, the written F_ :.g, 389 Metss. at 623-624, 451 response declining enforcement described in§7. N.E.2d 1141; See also Elder Care Servs., Inc. v. Zoning Bd. of Appeals of Hingham, In support of this interpretation, we consider 17 Mass.App. 480, 481-482, 459 N.E.2d 1 ft 8 T si all a.nt the'_lack or yin ca:km in either§ 7 or g== i:Sa-;. '.° spa::that j and ?5 speak 8 that a building inspector's failure to respond within of constructive grants, bile we are 'Here C ' �7 concerned with an argument for constructive fo .days t eta chi c ceffrat b*478 Teq-aa av to be denial,. is or no si r fiit".s'ace. The absence deemed a constructive denial of the request for of language;u§ 7 or§8 specifying what is purposes of setting in motion the thirty-day appeal to happen on the fifteenth day after a request pert- 9 ©2007 Thomson/West.No Claim to Orig. U.S.Govt.Works. • 468 N.E.2d 271 Page 4 `,C�e-+.�iyy 18 M 1, C3. A 1 *474, 468 N.E.2d�q 276 ** 761 �L.FE�as: 18_!�$�.t'�i��.r.[..E.Y7zy YlYy 468 i4.�.4nE:.!&y 2 fY storage building on Mr. Lovell's property is that the building inspector "shall notify, in writing, not S substantial extension_ of the non- f [oft the party requesting_..enforcement[of the zoning by- conforming use"(emphasis in original), law] of any action or refusal to act, and the reasons therefor, within fourteen days of receipt of [al '475 On November 19, 1981,the plaintiffs appealed request"for enforcement. Under§ 8 of G.L. c. 40A, from the building is spect or's'decision to the board. a person aggrieved "by reason of his inability to On January 14, 1982,the board held a hearing on the obtain enforcement action" has a right of appeal to appeal and also heard r OYeld`s a glu ment that the the permit granting authority, here the board. Under board lacked jurisdiction.lion On February 1, 1982,the § 15 of c.40A,any such appeal must be taken"within board filed a written decision with the town clerk in thirty days from the d to of the order or decision which it stated that it had "no Jurisdiction to hear the which is being appealed." The language of the issue of the building permit as the appeal appears to proviso in the second paragraph of § 7, however, be untimely." While the board's decision is a bit establishes a six-year limitations period for actions unclear, it also appears that the board believed that it seeking to remedy zoning violations arising out of lacked jurisdict'i'on to hear the appeal pertaining to alleged unlawftul activities conducted pursuant to an Lovell's use **275 of S ei teen-wheel vehicles. "original original braiding permit." [FNSj Nevertheless, the board agreed to decide the merits "in order that the [tjown, the parties and the public FN8. The second paragraph of§ 7 reads as may have the benefit of or opinion." The board follows: upheld bots,decisions of the building inspector. "No action, suit or proceeding shall be maintained in any court, nor any On February 17, 1982, the plaintiffs filed two administrative or other action taken to ;oupiaot S Sn the Sapta aor v:.I alleging that they recover a fine Or damages or to-com p el the removal alteration, or relocation any were aggrieved by the boards, decision. • The of a ctrl rr n.t�g-* �a 4•n, a:t+irl Lovell from structure or part ofa structure.or alteration complaints-dints' so L e L ' , Dyers of a structure,by reason of any violation of maintaining arid using eighteen-wheel vehicles on its any zoning by-law or ordinance except in property and from using the second garage built accor net with the provisions of this r--Lam'-`t3' pursuant to the permit in violation of the by-law; (b). - section, section eight and section seventeen, orders directing the building inspector to compel provided,however, if real property ins been removal of the garage and prohibiting Lovell's use of improved and used in accordance with the eighteen-wheel vehicles; and (c) a further order terms of the original building permit issued -confining Lovell's. operations to the level of by a person duly authorized•to issue such nonconforming use permitted by the 1965 variance. permits, no action, criminal or civil, the t effect or purpose of which is to compel the Lovell films notions to dismiss both actions o n the purpose l abandonment, limitation or modification of ground that the Superior Court lacked jurisdiction. the use allowed by said permit or the A judge of the Superior Court denied Lovell's removal, .al .ration or relocation of any motions and considered the cases on their merits. He structure erected in reliance upon said concluded that the board had erred and entered the permit by reason of any alleged violation of judgments described earlier. the provisions of this chapter, or of any ordinance or by-law adopted thereunder, i. Resolution of the jurisdictional shall be maintained,iat,deSS such action,suit nri_dictional questions requires or proceeding is commenced and notice examination of the pe tment provisions of §§ 7, 8, p g thereof recorded in the registry of deeds for ie f ,one T7] g s and t of .1 .v. 7 1i2. `E 2 t f� each county di which the land ties each county or district 111 YYlllVll Ulu.land lies within six .rears next eater the FN7 All references in this opinion are to commencement of the alleged violation of the provisions of the present Zoning Act,as law. Such notice shall include names of appearing in St.1975, a 808, § 3. When one or more of the owners of record, the the prior Act is referred- to, it will be name of the person initiating the action,and described as the prior c.40A. adequate identification of the structure and the alleged violation." *476 The building inspector in Duxbury is the officer charged with enforcement of the Duxbury Lovell urges a strict construction of these statutes. i Section 7 r r a a v•de he d' ver the eigii heel L., ��i;;ii�y 'v� ;ii?Y. 7 of G.L. c. 40A �i°�'�rili�.� As to ul+. �a:,3plli. over the :.iY�atc:,...:°wxls.a.; vehicles, J 2007 Thomson/West.No Claim to Orig.U.S. Govt. Works. 468 N.E.2d 271 y N.E.2d Page 3 g (Cite as: 18 L ass.App.Ct.471,*473, 468 . 2d 271,**2/3) Trucking. These trucks have been parking • a "stop order" on the building permit granted Lovell for over a year, at Lovell's. Several of us on.July 10, 1981. t[FN51 The building inspector did have complained to [a local official] who not respond to the letters within fourteen days. He said he talked to Mr. Lovell, and that Mr. did, however, reply in a letter dated November 18, Lovell denied that they were there. We 1981, in which he declined both. requests for have pictures to support our claim_ These large trucks are a hazard to this residential enforcement. [FN6] area. They are much too long to negotiate the turn'onto Lincoln St., and we have all FN5. The letter from plaintiffs' counsel to seen several near accidents, because cars the building inspector concerning the coming up Lincoln St, toward Mayflower, building permit read as follows: come around a curve and cannot see the "In accordance with Article 900 of the trucks until they are halfway out-blocking Protective By-law of the Town of Duxbury the whole street. There have also been and in conformity with Massachusetts many close calls with children on bicycles, General Laws, Ch. 40A, Sec. 7, I hereby for the same reason_ in addition, these request that you issue a STOP ORDER on tacks disturb the peace, by often leaving Building Permit No. 8056 issued July 10, Lovell's as early as 4:30 A.M.,and as late as 1981, to Avery W. Lovell, Inc. on property 10:30 P.M. We request that this practice of located at 789 Mayflower Street, in parking these trucks, or any other large, • Duxbury, being Parcel 090-029-002 on the noisy trucks, such as these, be discontinued Assessors'Map. immediately! This is a residential "The basis for the violation is the neighborhood, and they constitute a danger_ construction of a commercial building in a We would like action on this matter before residential zone without a Variance (see the trucks are responsible for some terrible section 402-2) and the lack-of a Special accident." Permit for approval of the Site Plan. "A previous Variance granted to Avery W. **274 On July 10, 1981 the building inspector Lovell is Case�.f, 6.5-11 in h l till La__.. .Se �lZ £:.a pe.. ot2 issued a building permit granting Lovell permission for a Variance was approved on October 1, to construct a fifty by fifty-five foot second building 1965,i to construct and maintain a 6-stall for the "storage of. vehicles." The -building garage for the storage and maintenance of O /�r �.1a decision sttt n the was commercial vehicles and equipment. This inspector's decision 4o grant the permit eras not appealed to the board. [FN4] Variance does not grant permission for the further construction of commercial buildings or the expansion of the business• FN4. The record does not clearly indicate on the site without a new hearing." • the dates when persons who might have The letter from plaintiffs's' counsell • been aggrieved by the building permit • concerning the use of eighteen-wheel learned of its issuance. As to the plaintiff vehicles was similar in content and directed Yokes, it appears,at one point in the record, the building inspector's attention to four that she knew on July 7 that the building provisions of the Duxbury zoning by-law permit was about to issue. At another which the plaintiffs claimed were being point,however,she testified that she was led violated by Lovell's use of the vehicles. to believe by the building inspector and the The reference to "stop orders" in the letters chairman of the Bonn that the permit would is in keeping with art. 902 of the Duxbury not issue until the board had held a hearing on its legality. She farther testified that she zoning by-law,which makes such a request was advised that a meeting of the board held the initial step in the enforcement process. prior to July 10 would not concern itself with the permit. There is no indication in FN6. The building inspector's letter of the record of when the plaintiff Boucher November 18, 1981,. expressed the views learned of the permit's issuance. that eighteen-wheel trucks had always been involved in Lovell's business and that "the *474 On October 19, 1981, after engaging a lawyer, trucks are ¢not} a zoning problem that should be under my control as a zoning the �jplaintiffs, in//two letters, requested that the ofcer." yy y building inspector(1)issue a"stop order"prohibiting With reference to the building permit, the Lovell from operating and maintaining eighteen- building inspector denied the request for a wheel gravel trucks and flatbed bailers, and(2)issue stop order because"the construction of[the] ©2007 Thomson/West.No Claim to Orig.U.S. Govt.Works. • 468 N.E.2d 271 Page 2 {Cite as: 18 Mass.App.Ct.471, 468 N.E.2d 271) expansion or enlargement of that use unless permitted by the zoning bylaw and unless the requirements of Before *471 GREANEY, C.J., and BROWN and the bylaw are followed. PERRETTA,J.i. [7]Zoning and Planning<>:'507 *472 GREANEY,Chief Justice. 414k507 Although landowner had obtained variance to use The defendant, Avery W. Lovell, Inc. (Lovell), property to store and maintain commercial vehicles appeals from judgments of the Superior Court and equipment for use in cesspool business, and enjoining Lovell from (a) garaging or maintaining 18-wheel vehicles stored on the premises were being eighteen-wheel vehicles or allowing such vehicles on used in connection with the lawful expansion of its its property and (b) using a garage for the storage of cesspool business, the presence of the 18-wheel commercial vehicles and equipment. The appeals vehicles on premises was an improper enlarged use, have been consolidated. The questions argued are in light of fact that side by side on premises with its whether the.Superior Court had jurisdiction over the cesspool business landowner conducted trucking cases,and if so,whether it decided them correctly. business in connection with work as a general contractor and excavator, in contravention of the We state the facts pertaining to the jurisdictional variance, and in light of an increased noise and issues. Lovell is in the business of installing and serious traffic and safety problems that the presence maintaining septic tanks and cesspools with its base of 18-wheel vehicles on the property brought to the of operations at 789 Mayflower Street in Duxbury. neighborhood. The property is located in a residential zone. Lovell conducted its business pursuant to a variance granted [8]Zoning and Planning 0772 . by the board.of appeals of Duxbury(board) in 1965 414k772 which permitted it (1) to conduct, in "a residential. In action challenging the construction of commercial district," a- "cesspool business, both as to the garage on property, which resulted in determination maintenance of the same and the construction of new that construction of the garage violated limits of cesspools," and (21 to construct "a garage to store variance and constituted unlawful expansion of [its] equipment under cover." In 1975, the *473 nonconforming use in violation of zoning bylaw,trial town adopted a new zoning by-law. By reason of art_ judge's decision to withhold order for removal of 106 of the by-law, Lovell's operations became a garage pending zoning proceeding to determine nonconforming use. The plaintiffs live on whether garage could be put to any lawful use or Mayflower Street in the immediate vicinity of otherwise made to conform to the bylaw was within Lovell's business. trial judge's discretion_ In early 1981, Lovell inquired of the board whether a [9]Zoning and Planning X790 special permit would be necessary under the by-law 414k790 for the construction of a second garage on its In action challenging presence of 18-wheel vehicles Mayflower Street property. On May 15, 1981, the on commercial property, portion of judgment board issued a memorandum to the building inspector enjoining landowner from garaging or maintaining stating that a special permit was unnecessary. On 18-wheel vehicles on his property was reasonably June 22, 1981,the plaintiffs, and other neighborhood related to the grievance to be remedied, but language residents,wrote to the building inspector complaining in the judgment also prohibiting landowner from about the parking of large flatbed trucks and "other allowing 18-wheel vehicles on his property was long trailer trucks" on Loveii's property. [FN3] The overbroad, in light of finding that suppliers of building inspector did not reply to the letter. landowner's cesspool business, which was permitted under variance, had, from the inception of the FN3. This letter read as follows: business, made deliveries of materials as necessary to "We, the undersigned residents of * * Mayflower St., Lincoln St., and vicinity, landowner by means of 18-wheel vehicles. 273 *472 Edward W. Kirk, Falmouth, for Avery wish to protest the parking of large flat bed, W.Lovell,Inc. and other long trailer truelz at The Avery Lovell Pumping business,on Mayflower St., Robert E.Galvin,Marshfield,for plaintiffs. The name on the trucks is Franc[e]sco's 2007 Thomson/West.No Claim to Orig.U.S. Govt. Works. Amminumenomimmer 468 N.E.2d 271 Page 1 1a Mass.App.Ct.471,468 N.E.2d 271 (Cite as: 18 Mass.App.Ct.-471, 468 N.E.2d 271) Appeals Court of Massachusetts, zoning bylaw of any action or refusal to act is Plymouth. directory and not mandatory.M.G.L.A.c.40A, § 7. Carolyn M.VOICES et al. [FNI] {2] Zoning and Planning 763 FNI.James Boucher. 414k763 Date on which a zoning enforcement officer responds v. in writing to request for enforcement of zoning bylaw AVERY W.LOVELL,INC. (and a companion creates appealable decision contemplated by statute case [FN2]). and becomes the date for measuring 30-day statutory appeal period. M.G.L.A.c.40A, §§ 7, 8, 15. FN2. The companion case is between the same parties. [3]Zoning and Planning 0 .763 414k763 Argued June 14, 1984. Neighborhood residents'right to appeal to town board Decided Aug. 17, 1984. of appeals from building inspector's denial of Further Appellate Review Denied Nov.2, 1984. enforcement of zoning bylaw arose when the - inspector made a written response to letter from. Neighborhood residents brought action alleging that residents' counsel requesting enforcement, and did they were aggrieved by decision of town board of not arise on earlier date 14 days after building appeals upholding decisions of building inspector inspector failed to respond to residents' earlier letter regarding use of commercial property in the complaining about use of the property in question. neighborhood. The Superior Court, Plymouth M.G.L.A.c.40A, §§ 7, 8, 15. County, Keating, J., enjoined defendant landowner from garaging or maintaining 18-wheel vehicles or [4] Zoning and Planning X763 allowing such vehicles on its property and from using 414k763 a second garage on the property for storage of Neighborhood residents who made written request for commercial vehicles and equipment, and defendant enforcement of zoning bylaw in an effort to stop landowner appealed. The Appeals Court, Greaney, allegedly unlawful construction from going forward C.J., held that: (1) date for measuring 30-day appeal under color of building permit became "aggrieved period from decision of building inspector began to persons" under statute by reason of inability to obtain run when building inspector responded in writing to enforcement action when building inspector denied neighborhood residents'request for enforcement; (2) their request, and thus, after residents complied with Superior Court had jurisdiction of appeal from jurisdictional steps, Superior Court had jurisdiction board's decision affirming the issuance of the building over appeal. M.G.L.A. c.40A, §§ 7, 8, 15. permit; (3) defendant's use of a second garage was beyond scope of earlier variance and constituted [5] Zoning and Planning 329.1 unlawful expansion of nonconforming use in 414k329.1 violation of zoning bylaw; (4) defendant was (Formerly 414k329) properly enjoined from garaging or maintaining 18-wheel vehicles on property; but (5) portion of [5]Zoning and Planning 0509 judgment prohibiting defendant from allowing 414k509 18-wheel vehicles on his property was overbroad. {here was no error in t landowner's fin ing tha Dallis ' construction of second garage on property was Order accordingly. beyond scope of commercial variance and constituted unlawful expansion of nonconforming use in West Headnotes violation of town zoning bylaw. [1]Zoning and Planning 763 [6]Zoning and Planning 329.1 414k763 414k329.1 Fourteen-day limitation on building inspector's (Formerly 414k329) response in statute requiring building inspector to The existence of a lawful nonconforming use does not notify in writing a party requesting enforcement of a permit the erection of additional buildings for the ©2007 Thomson/West.No Claim to Orig. U.S. Govt. Works. enforcement under G.L.c. 40A, §7, and thereafter seek administrative remedies pursuant to Chapter 40A, §§8 and 15. The Court, citing the Vokes case, said: "We observed there that the request for enforcement procedure was independent of the right to take an appeal under G.L.c. 40A, §15,within 30 days of the issuance of a permit. That was so because there is no public notice of the issuance of a building permit. If a §15 appeal were the sole remedy for a party aggrieved, the recipient of a permit could keep the permit under wraps for 30 days and then would have succeeded in foreclosing any challenge. (Vokes at 482, n. 17). For that reason, the legislature adopted the enforcement procedure that appears in G.L.c. 40A, §7. That procedure provides an alternative means to `stop the allegedly unlawful construction from going forward under the color of' the challenged permit. (Voices at 483)." Both Vokes and Fitch make clear that a party aggrieved by the issuance of a building permit due to zoning considerations must exhaust all administrative remedies; that is, he must appeal first to the Zoning Board for relief before any complaint for judicial review maybe filed. Copies of the Vokes decision and the Fitch decision are attached hereto. A review of these cases demonstrates that Mr. Naidorf is clearly within his rights in challenging the building permit issued by Mr.Patillo to "stop the allegedly unlawful construction from going forward under the color of the challenged building peiiuit. Mr. Naidorf requested enforcement (that is, the revocation of the permit due to zoning and parking considerations) on October 17, 2006. The Building Inspector responded in a.timely fashion on October 25, 2006 denying his request for enforcement, and Mr. Naidorf thereafter filed a timely appeal with this Board on November 21, 2006. This Board clearly has jurisdiction to consider Mr. Naidorfs appeal and must decide whether the construction authorized by the permit is proper. Mr. Naidorf maintains that it is not, for the reasons previously stated, and requests that his appeal be upheld and the permit rescinded for the proposed use. Respectfully submitted: ( ) John H. Fitz-Gibbon JIFF/cab cc: Mark Naidorf Alan Seewald, Esq. vehicles." The Building Inspector's decision to grant the permit was not appealed to the Board. However, on October 19,, 1981, certain abutters sent letters to the Building Inspector requesting him to (1) issue a"stop order"prohibiting Lovell from operating and maintaining eighteen-wheel gravel trucks and flatbed trailers, and (2) to issue a"stop order"on the Building Penult granted to Lovell on July 10, 1981. On November 18, 1981, the Building Inspector responded to these requests, in which he declined both requests for enforcement. Subsequently, the abutters appealed to the Zoning Board, which upheld the Building Inspector. Ultimately, the case w as appealed to Superior Court which reversed the Zoning Board's decision and an appeal was taken to the Massachusetts Appeals Court in the case cited above. In his appeal, Lovell raised the jurisdictional question of whether or not the Board, and subsequently the Superior Court, had jurisdiction to hear the appeal. The Appeals Court took the opportunity to explain the interplay between Chapter 40A, §§7, 8 and 15. After reviewing the history of the zoning statute, and remedies (such as an action for mandamus) that existed prior to the adoption of Chapter 40A, the Appeals Court upheld the Superior Court and the jurisdiction of the Zoning Board to hear the neighbors' appeal of the building permit granted to Lovell: "Thus, with the enactment of the new Zoning Act, the Brady' right to mandamus as a remedy for zoning violations committed under color of a building penult became a right to request the officer charged with enforcing local zoning to enforce the by-law under G.L.c. 40A, §7, and, if the requesting party is aggrieved by the inspector's decision, a right to seek administrative relief from the board under G.L.c. 40A, §§8 and 15, and, after exhausting administrative remedies, a right to obtain judicial review pursuant to G.L.c. 40A, §17.... Here the "original building permit" for purposes of§7, was the permit authorizing Lovell to construct the second garage... We view the plaintiffs' written request on October 19, 1981, for enforcement...as an effort to stop allegedly unlawful construction from going forward under color of that permit. The building inspector's written denial of their request made the plaintiffs, under §8, `person(s) aggrieved by reason of(their) inability to obtain...enforcement action,' and they thereafter complied, in a timely manner, with the jurisdictional steps required by c. 40A and the Neuhaus2 decision. We conclude that the Superior Court had jurisdiction of the appeal from the board's decision affirming the issuance of the building permit." Vokes, at p. 482-483. In Fitch v. Board of Appeals of Concord, 55 Mass. App. Ct. 748 (2002), the Massachusetts Appeals Court upheld an enforcement action filed by abutters concerning a building permit that had been issued more than 30 days before the abutters first wrote the Building Inspector requesting zoning enforcement, noting that there are two avenues an aggrieved party may take to seek enforcement: either appeal the building permit within 30 days after its issuance, or request 'Brady v. Board of Appeals of Westport, 348 Mass. 515 (1965) (upholding the right of aggrieved citizens to obtain mandamus, or court order requiring enforcement of the Zoning By- Laws prior to the adoption of Chapter.40A in 1975. 'Neuhaus v. Building Inspector of Marlborough, 11 Mass. App. 230 (1981). I GREEN, MILES, LIPTON & ITZ®GIBBON, LLP ATTORNEYS AT LAW 77 PLEASANT STREET POST OFFICE BOX 2I0 NORTHAMPTON, MASSACHUSETTS 01061-0210 (413) 586-8218 FAX (413) 584-6278 JOHN J. GREEN, JR. HARRY L. MILES SUSAN L. MILES ROGER P. LIPTON BRIAN L. BLACKBURN JOHN H. FITZ-GIBBON JON HEYMAN JOHN M. McLAUGHLIN• (GEOFFREY B. WHITE-RETIRED) *ADMITTED ALSO IN CT -- 1 7 ' } January 31, 2007 1 tilit 1 y 1 Sara Northrup DEPT O t Ah^+iNG 147 Hinckley Street David Bloo t'.era' NORTH4t�PTON, IA 3 uGu Florence, MA 01062 86 Vernon Street Northampton, MA 01060 Malcolm B. E. Smith Bob Riddle 9 Park Street 47 Water Street Florence, MA 01062 Leeds, Ma 01053 Elizabeth Wroblicka Carolyn Misch, AICP 51 Olive Street Office of Planning &Development Northampton,MA 01060 210 Main Street, Room 11, City Hall Northampton, MA 01060 Re: Appeal by Mark Naidorf of a Building Permit/Zoning Permit issued for 332 Pleasant Street, Northampton,MA to Dr. Jay Fleitman Dear Members of the Zoning Board of Appeals: Pursuant to your invitation at the January 11th hearing on the above-referenced application, I hereby submit a brief letter memorandum of law,with attached cases, concerning the issue of the Board's jurisdiction to hear Mr. Naidorf's appeal. The Board was concerned as to whether it had jurisdiction to hear an appeal of a "building peiixnt" and some members suggested that Mr. Naidorfis sole remedy was to appeal to Superior Court. For the reasons stated herein, and on the cases cited, it is clear that the Zoning Board does indeed have jurisdiction over Mr. Naidorf s appeal and that Mr. Naidorf must first seek relief from the Zoning Board of Appeals before filing a complaint in Superior Court. The seminal case on this issue is Vokes v. Avery W Lovell, Inc., 18 Mass. App. Ct. 471 (1984). In that case, the Building Inspector for the Town of Duxbury, on July 10, 1981, issued a Building Permit granting Lovell permission to construct a 50' x 55' second building for the "storage of