15 Mass. App. Ct. 711 | Mass. App. Ct. | 1983
Castelli owned an ice cream store in Seekonk in a zone then designated for highway business by the town’s zoning by-law (the by-law), § 7.1 (1979). The store
In March, 1980, Castelli obtained (with full knowledge of the by-law on the part of the building inspector, see note 2, supra) a building permit to do renovations to the store, including remodeling the interior, placing new siding on the exterior, substituting or adding new windows, and installing new wiring. On March 23, 1980, a fire caused damage to part of the roof and rear of the building. There was no damage to the walls, structural supports, front and middle portion of the building, plumbing, or foundation. Castelli applied to the building inspector for a permit to continue the renovations started earlier and to repair the fire damage. No change in the area covered by the store was proposed. The estimated cost of the work (about $9,000) was less than the sum which, under the by-law, § 2, would cause the work to constitute a “substantial improvement” for at least some purposes of the by-law possibly applicable to this case by analogy. As to nonconforming uses generally, see G. L. c. 40A, § 6, as revised by St. 1975, c. 808, § 3.
The building inspector, after inspecting the building, determined that the proposed work constituted renovation and repair (because of the fire) and was not a reconstruction of the building. A permit allowing the work to be continued was issued on April 17, 1980.
From April 17 until May 15, 1980, work proceeded and funds were expended. The building inspector visited the store several times during this period and determined that the work was proceeding in accordance with the permit.
The defendant Del Rosso, chairman of the selectmen, on May 14, 1980, caused the town health agent to go to the
The plaintiffs did not appeal from the stop order to the town zoning board of appeals. See G. L. c. 40A, § 8, and the by-law, § 14.21. Castelli, upon receipt of the stop order on May 15, 1980, ceased to proceed with the work. The plaintiffs then instituted this proceeding in the Superior Court seeking revocation of the stop order and injunctive relief against any order to Castelli to remove the store.
A Superior Court judge on April 1, 1981, made findings of essentially the facts outlined above. He pointed out that, when the stop order was issued, the selectmen as a group had adopted no vote that Castelli was in violation of the bylaw. Indeed a letter of May 15, 1980, from Del Rosso to Castelli stated that the selectmen had not yet reviewed the order with the building inspector because of the latter’s illness. In reliance on Ouellette v. Building Inspector of Quincy, 362 Mass. 272, 276-278 (1972), the trial judge ruled that an action in the Superior Court “lay to review whether the stop work order [of May 15, 1980] was valid.” The building inspector’s testimony before the judge justified him in finding that the order revoking Castelli’s permit was issued, “not on the basis of non-compliance with zoning requirements but rather on account of improper interference
The Ouellette case (at 276-278) appears to recognize that a landowner is entitled to an honest, uninfluenced opinion rendered in good faith by a town official charged with deciding whether, under a by-law, a building or comparable permit shall issue. Such an official, like the building inspector in this case, is under a “duty to act in a fair, judicial, and reasonable manner upon the evidence . . . presented . . . keeping in mind the objects of the by-law.” He cannot with propriety “act in an unreasonable, arbitrary, whimsical, or capricious manner.” See Butler v. East Bridgewater, 330 Mass. 33, 38 (1953). The permit granting authority has an obligation “to pass upon . . . [applications for a permit] in each instance under the serious sense of responsibility imposed upon” it. Id. at 37. See also Board of Health of Woburn v. Sousa, 338 Mass. 547, 552 (1959); McDonald’s Corp. v. Selectmen of Randolph, 9 Mass. App. Ct. 830, 832 (1980); 4 Rathkopf, Zoning and Planning §§ 49.04-49.05, 49.09 (4th ed. as amended to 1983).
The trial judge in the present case, on the evidence, reasonably concluded that the building inspector had not afforded Castelli the independent judgment in good faith to which he was entitled and that the permit revocation was
The Ouellette case, 362 Mass. 272, supra, was decided under G. L. c. 40A, as that chapter existed prior to the comprehensive changes effected by St. 1975, c. 808, § 3. The revised provisions of § 7 were discussed by this court in Neuhaus v. Building Inspector of Marlborough, 11 Mass. App. Ct. 230 (1981), decided only about two months before the trial judge decided the present case. In the Neuhaus case (at 231), it was said that “the provisions of the present G. L. c. 40A . . . require that all questions concerning the enforcement of valid zoning . . . by-laws be determined at the local administrative level before resort may be had to a court for enforcement” (emphasis supplied). In that case, neighbors of a landowner holding a building permit were seeking to require the Marlborough building inspector to revoke a building permit which the neighbors felt had been issued in violation of the zoning by-law. This court ruled (at 235) that the provisions of the second sentence of the second paragraph of the revised c. 40A, § 7,
So much of the judgment as vacates the stop work order (thus determining that the stop order was wholly ineffective) and dismisses the counts or prayers seeking damages is affirmed. The balance of the judgment is reversed and the case is remanded to the Superior Court. There further action is to be withheld until May 25, 1983, to permit the initiation of any appropriate enforcement action under the by-law. Until that date, Castelli is not to proceed with further work under his building permit. From decisions by local officials involved in any enforcement action which may take place, timely appeals to the town’s zoning board of appeals may be prosecuted, and judicial review of any enforcement decisions by that board may be sought. On
So ordered.
At this stage of this proceeding, for reasons stated below, we need not determine whether the building inspector was correct in his determination that Castelli was in compliance with the by-law, although there is strong indication in Berliner v. Feldman, 363 Mass. 767, 773-775 (1973), that tile building inspector justifiably treated the proposed renovation as permissible under the by-law. Compare Strazzulla v. Building Inspector of Wellesley, 357 Mass. 694, 697 (1970). Certainly no part of the store’s renovation appears to have had any relevance to its only nonconforming aspect, viz. its inadequate setback under the by-law. The photographic exhibits strongly suggest that the renovated building, if completed, will be a more sightly (and probably a safer) building than its predecessor.
The zoning by-law provided (§ 15.1) that the “by-law shall be enforced by the . . . [s]electmen through the [i]nspector of [b]uildings” who “shall approve no application ... or permit . . . except in conformity with this by-law” (emphasis supplied). We need not decide whether the by-law provision is inconsistent with the first sentence of G. L. c. 40A, § 7, as appearing in St. 1975, c. 808, § 3, which charges the building inspector, if there is one, with zoning by-law enforcement, rather than the selectmen, for here the trial judge found (as already stated) that the selectmen as a group never acted upon the revocation of Castelli’s permit.
The sentence reads in part: “No action [or] suit . . . shall be maintained in any court ... to compel the . . . alteration ... of any structure or part of a structure ... by reason of any violation of any zoning bylaw . . . except in accordance with the provisions of this section, section eight and section seventeen,” subject to a proviso which need not be
The final sentence of the revised § 7 reads: “The superior court shall have jurisdiction to enforce the provisions of this chapter, and any . . . by-laws adopted thereunder, and may restrain by injunction violations thereof.”