394 Mass. 1008 | Mass. | 1985
Stop & Shop Companies, Inc. (plaintiff), requested a declaration that G. L. c. 112, § 39, and certain regulations promulgated by the Board of Registration in Pharmacy (board) pursuant to that statute, are either wholly invalid, or inapplicable to a pharmacy the plaintiff intends to operate in Pembroke. The premise of the plaintiff’s complaint is that the board would interpret the challenged statute and regulations so as to deny the plaintiff permission to operate a pharmacy of a particular design. A judge of the Superior Court concluded that the statute and regulations were valid. The plaintiff appealed, and we transferred the case to this court. We hold that declaratory judgment is not appropriate in this case because the plaintiff failed to present an “actual controversy” within the meaning of the Declaratory Judgment Act, G. L. c. 231 A, § L
In declaratory judgment actions brought against permit granting authorities by landowners who are proposing to make some new use of their property, an “actual controversy” is present in cases where “[ojwners . . . have been denied permits,” Woods v. Newton, 349 Mass. 373, 376 (1965), or have been “threatened with enforcement proceedings.” Id. See also Eve Corp. v. License Comm'n for Worcester, 372 Mass. 869 (1977). In this case, because the plaintiff has failed to file an application for a permit with respect to its proposed Pembroke pharmacy, the board has not had the opportunity either to deny the permit, or even to threaten to deny it. Cf. Belfer v. Building Comm’r of Boston, 363 Mass. 439, 442 (1973) (even where permit not formally denied, actual controversy exists “as long as the permit granting authority had unequivocally stated” its
The plaintiff contends that the board denied a permit for a substantially identical pharmacy at another location, and thus that the board has, in effect, taken a position on the pharmacy at issue here. We disagree. Even if we assume that the board previously rejected a substantially similar application, that would not excuse the plaintiff from filing an application here. See United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37 (1952); Plant Power Div., Brown & Root, Inc. v. Occupational Safety & Health Review Comm’n, 673 F.2d 111, 114-115 (5th Cir. 1982). The board in such a case should be given an opportunity to reconsider its position on the issue in light of new arguments or changed circumstances. See Samuels Pharmacy, supra at 589.
Since declaratory relief is inappropriate, we reverse the judgment and remand the case to the Superior Court for entry of judgment dismissing the complaint.
So ordered.