Stona Fitch and Thomas Cote filed an appeal under G. L. c. 40A, § 17, in the Land Court, from a decision of the Board of Appeals of Concord (board) that had validated a build
1. Facts. The judge decided the case on a motion for summary judgment. These are the material and undisputed facts. Bessie Adele Cavanagh owns a vacant parcel of land at 188 Central Street, Concord (lоcus), that contains 10,513 square feet and has frontage of 75.5 feet. The required frontage for a “build-able lot” in the zoning district (residence C) in which the locus is situated is 80 feet; thus, the frontage of the locus is 4.5 feet shy.
Adjoining the locus, along a common rear lot line, Cavanagh оwned a lot with 67.80 feet of frontage on Main Street. On that lot was a single-family house, lawful as a nonconforming use, in which Cavanagh resided.
On April 7, 1999, the building commissioner of Concord issued tо Cavanagh a permit to build a single-family house on the locus. In doing so, the 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 variance or, in the alternative, a spеcial permit to use the locus as a single-family residence lot. The board had denied relief to Cavanagh on the ground that it was not necessary. The locus, the board wrote in its decision, was “grandfathered” and “only the most pedantic and unimaginative zoning boаrd could view the matter otherwise.” The board advised the building commissioner to “be mindful of the [bjoard’s position on this matter. If Applicant requests a building permit for the lot on Central Street, it should not be denied on the grounds that it is not a grandfathered building lot.”
By letter dated June 3, 1999, Fitch аnd Cote, through counsel, conformably with G. L. c. 40A, § 7, wrote to the building commissioner, in his capacity as zoning enforcement officer, requesting him to enforce the zoning by-law of Concord by rescinding
2. Discussion, a. The request for enforcement. As we understand the decision of the Land Court judge, his reason for dismissing the complaint was that it was premature: no construction had begun under the building permit that Fitch and Cote wanted tо have declared unlawful. He faulted the plaintiffs for not appealing from the issuance of the permit and wrote that the plaintiffs “cannot use the enforcement request route as a collateral attack on the 1999 permit itself.” The judge also treated as consequential that the permit had lapsed. We are of opinion that the plaintiffs were entitled to adjudication of their appeal on the basis of the applicable statutory language, the decisional law, and sound public poliсy.
Section 7 of c. 40A of the General Laws, as amended by St. 1986, c. 557, § 55, provides:
“If the officer . . . charged with enforcement of zoning . . . by-laws is requested in writing to enforce such. . . by-laws against any person allegedly in violation of the same and such officer. . . declines to aсt, heshall notify, in writing, the party requesting such enforcement of any action or refusal to act, and the reasons therefor, within fourteen days of receipt of such request.”
General Laws c. 40A, § 8, as inserted by St. 1975, c. 808, § 3. authorizes an appeal to the “permit granting authоrity” — in this case the board — by any person aggrieved by inability to obtain enforcement action. A party has thirty days from the date of the order by which that party is aggrieved to take its appeal to the permit granting authority. G. L. c. 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 within twenty days after the decision has been filed in the office of the town clerk. All those steps Fitch and Cote followed faithfully within the prescribed time limits. Compare Elio v. Zoning Board of Appeals of Barnstable, supra.
On the basis of the plain lаnguage of the statutes, Fitch and Cote were entitled to adjudication of the appeal under G. L. c. 40A, § 17. That entitlement was explicated in Vokes v. Avery W. Lovell, Inc.,
For that reason, the Legislature adopted the enforcement procedure that appears in G. L. c. 40A, § 7. That procedure provides аn alternative means “to stop allegedly unlawful construction from going forward under color of” the challenged permit. Vokes v. Avery W. Lovell, Inc., supra at 483. Although some construction had begun in the Yokes case by the time the § 7 enforcement mechanism was invoked, use of § 7 before construction has begun is not an impermissible preemptivе strike; it is precisely what the Legislature appears to have anticipated and determined to enable. In its “1972 Report on
The case before us illustrates the utility of the procedure that the 1972 Rеport recommended and which found its way into G. L. c. 40A, §§ 7, 8, 15, and 17. Fitch and Cote have made entirely plain by their statutory enforcement request, petition for relief to the board, and complaint for judicial review that they oppose the designation and use of thе locus as a buildable lot on the ground that, as matter of law, it is not. Cavanagh, by her earlier applications to the board and by her taking out a building permit, has manifested that she desires to build a house on the locus and has been told by the board that she can do sо. Reasonably, Cavanagh did not persevere with construction in the face of proceedings to have such construction declared unlawful. It would be wasteful for Cavanagh, or anyone similarly situated, to hire a contractor and have that contractor do some initial construction just so that the validity of her permit could be contested.
Here, the parties made known their positions through all the administrative steps prior to filing for judicial review. Contrast Neuhaus v. Building Inspector of Marlborough,
b. Declaratory judgment. With the assеnt of the parties, the plaintiffs moved to amend their complaint to seek declaratory relief under G. L. c. 231 A. The motion to amend was denied on grounds of futility, namely that there was no actual controversy. The genuine dispute about whether the locus is a grandfаthered lot did not evaporate because Cavanagh’s building permit had expired. The time consumed in administrative process and getting to a decisive point in judicial review of the decision of a board of appeal will generally exceed the six months that limit the life of a building permit. Yet two citizens have asserted their view that an enforcing official has violated the zoning law. The official, with the endorsement of the board, says the contrary. That is a controversy between them. See Woods v. Newton,
c. Petition under G. L. c. 240, § 14A. The plaintiffs’ assented to motion to amend their complaint also sought to obtain a decision under G. L. c. 240, § 14A, as to the lawfulness of Ca-vanagh’s right to build on the locus. The сases have described that statute “as intended to permit any landowner to petition for a decision concerning the validity or invalidity of any zoning restriction applicable to his land.” Sturges v. Chilmark,
d. Whether the locus is a buildable lot. General Laws c. 40A, § 6, “ ‘grandfathers’ once buildable lots held in separate ownership at the time a zoning change resulted in a particular parcel losing its status as a valid residential lot.” Preston v. Board of Appeals of Hull,
Section 6, fourth par., reads as follows:
“Any increase in area, frontаge, width, yard, or depth requirements of a zoning ordinance or by-law shall not apply to a lot for single and two-family residential use which at the time of recording or endorsement, whichever occurs sooner was not held in common ownership with any adjoining land, conformed to the then existing requirements and had less than the proposed requirement but at least five thousand square feet of area and fifty feet of frontage.”
The design of G. L. c. 40A, § 6, is to permit the use of lots that were once lawful and cannot be made compliant with subsequently adopted zoning code requirements by adding adjoining land of the owner. See Sturges v. Chilmark, supra at 261.
Assume that rather than owning lots that back up against each other, Cavanagh owned a lot adjoining the locus with seventy feet of frontage on the same street, Central Strеet. On those hypothetical facts, she would be obliged to treat the two lots as merged because the frontage of the second lot when
The judgment of dismissal is reversed; the case is remanded tо the Land Court for further proceedings on the merits.
So ordered.
Notes
The house on the undersized lot was a nonconforming use because it existed prior to the coming into being of the zoning regulation that prohibited a house on a lot with less than 80 feet of frontage. Mendes v. Board of Appeals of Barnstable,
Under 780 Code Mass. Regs. § 111.8 (1998), “[a]ny permit issued shall be deemed abandoned and invalid unless the work authorized by it shall have commenced within six months after its issuance,” unless the building commissioner, for cause, has granted a six-month extension. As the permit was issued April 7, 1999, it expired October 7, 1999, five days before the plaintiffs’ action was filed in the Land Court.
That report established some of the ground for the comprehensive revision of the State zoning act effected by St. 1975, c. 808, § 3. The Department of Community Affairs is now known as the Department of Housing and Community Development. See St. 1996, c. 204, § 15.
We may assume that the land owner found it necessary to have some building plans prepared in order to obtain a building permit, although for purposes of testing a zoning question, less than a complete set of contract drawings can be sufficient.
This is not a case of a landowner being compelled to defend a hypothetical right to build. It was Cavanaugh who triggered the controversy by applying for and obtaining a building permit.