Opinion
NO. 99-2045E
February 2, 2000
MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
Plaintiff, Joseph Ferruzzi ("Ferruzzi"), in his capacity as the Inspector of Buildings of the City of Revere, brings this action seeking declaratory and injunctive relief to enforce a cease and desist order issued to defendant, E.Z. Disposal Service, Inc. ("E.Z. Disposal"), on April 17, 1998. Ferruzzi now moves for summary judgment on the grounds that he is entitled to enforce that cease and desist order and that E.Z. Disposal is precluded from challenging the order because E.Z. Disposal failed to appeal it to the Revere Zoning Board of Appeals within thirty days from its issuance. E.Z. Disposal argues that summary judgment should be denied because a genuine issue of material fact exists as to whether it was required to appeal the April 17, 1998 order. For the following reasons, Ferruzzi's motion for summary judgment is allowed .
BACKGROUND
For purposes of the instant motion, the facts, in the light most favorable to E.Z. Disposal, are as follows:
The subject premises are located at 20 Railroad Street, Revere, Massachusetts (the "Premises") in an area zoned as a General Industrial District. Section 17.16.030 of the City of Revere Zoning Ordinances (the "Ordinances") provides that "[u]ses not specifically permitted, or permitted by special permit, are prohibited." Section 17.16.040 of the Ordinances contains the Table of Uses. The Table of Users permits, as industrial uses, "[b]uilding construction and contracting storage yard or facility . . . [w]arehouse [and] [w]holesale and product distribution activities." It does not list as a permitted use in an industrial district either the operation of a solid waste container supply company or the storage of solid waste containers. The operation of a "[t]ransfer station/landfill" is listed as a prohibited use. Section 17.16.270 of the Ordinances permits the "outdoor storage of material, equipment, or vehicles" in a general industrial district "only when incidental to the operation of a business or industry. . . ."
The Premises were owned by Hoover DeSanctis ("DeSanctis") from 1967 until April 29, 1999. DeSanctis was the proprietor of Suffolk Building Supply, a building material supply business located and operated at the Premises until approximately 1996. In 1996, Kamco, Inc. ("Kamco") took over Suffolk Building Supply. It moved its business away from the Premises in early 1998.
Since 1989, E.Z. Disposal, owned by Michael Merullo ("Merullo"), has operated on a portion of the Premises. E.Z. Disposal is in the solid waste container trucking company business. It supplies solid-waste collection containers, "roll-offs," dumpsters, hauling trucks, and other solid-waste handling equipment to commercial businesses, municipalities, and construction sites, and it arranges for the transportation and disposal of solid waste at disposal facilities. As an incidental part of its business, E.Z. Disposal stores solid waste containers, including dumpsters, open-top roll-off containers and compactors, outdoors at the Premises. E.Z. Disposal derives its profit from the supply of equipment to its customers and not from the storage of equipment on the Premises. From time to time, E.Z. Disposal would sort, separate and sell used building materials, such as bricks, steel and windows which were disposed of in its containers.
In 1989, when E.Z. Disposal first began its operations at the Premises, section 17.16.030 of the Ordinances did not explicitly prohibit uses not specifically permitted or permitted by special permit. Instead, it provided that "[i]n instances where a use is requested that is not specifically mentioned . . ., the party proposing such use shall submit in writing a request for review of the building inspector," and that the zoning review board thereafter "shall make a recommendation to the building inspector on the consistency of the proposed use within ten days in relation to the adopted zoning ordinances." There is no evidence that, when E.Z. Disposal began its operations on the Premises in 1989, it took advantage of the procedure set out in section 17.16.030. Section 17.16.030 of the Ordinances further provided in 1989 that "[i]n no circumstances shall this [written request] procedure supersede the authority of the building inspector to make the final determination of consistency and the need for any permits or variances. It shall be deemed a process only for review and clarification of the intent of the zoning bylaw." The Table of Uses contained in the Ordinances in effect in 1989, like the later Table of Uses, permitted a building construction and contracting storage yard or facility to operate in an industrial zone; it also permitted wholesale and product distribution activities. Moreover, like the more current Ordinances, it permitted outdoor storage of material, equipment and vehicles when incidental to the operation of a business or industry.
In March of 1998, Kamco hired E.Z. Disposal to clean-up and remove large quantities of discarded building materials, supply and debris left over from the building material supply business' usage of the property for approximately twenty years. The work involved dismantling several trailer trucks used for storage of materials, separating those materials into recyclable piles, and removing those piles from the Premises.
In April of 1998, RicMer Properties, Inc. ("RicMer") signed a purchase and sale agreement as well as a one-year lease agreement with DeSanctis for the Premises. Merullo is the President and co-shareholder of RicMer. Before entering into the purchase and sale agreement, RicMer, which wished to build a solid waste transfer facility on the Premises, hired an engineering consultant to contact various city officials, including the city solicitor, to discuss the possibility of locating a transfer station at the Premises. Therefore, by early April, 1998, at least some Revere city officials were aware of RicMer's interest in operating a transfer station at the Premises.
RicMer then leased that portion of the Premises formerly used by Kamco to Robert Karpp Co., Inc. ("Karpp"), for the operation of a business consistent with that transacted by Suffolk Building Supply. RicMer has owned the Premises since April 29, 1999.
In early 1998, Feruzzi, whose responsibilities include enforcement of zoning ordinances, received a citizen's complaint of illegal dumping of fill or waste materials or both at the Premises. The Revere Health Inspector visited the Premises the first week of April and, subsequently, Feruzzi went to the Premises where he personally observed waste containers and solid waste disposal trucks entering and leaving the Premises, bearing the name E.Z. Disposal. Feruzzi observed the storage of numerous waste containers outdoors at the Premises. Feruzzi determined that E.Z. Disposal was in the waste hauling and disposal business and that it operated its waste container trucking company from a trailer he observed at the Premises.
E.Z. Disposal states that it disagrees with the building inspector's claim that he received a citizen's complaint but has proferred no evidence to counter the inspector's affidavit grounded upon personal knowledge.
Following his inspection of the Premises, Ferruzzi issued a cease and desist order (the "Order") to E.Z. Disposal on April 17, 1998. E.Z. Disposal received the Order, which is as follows:
It has been witnessed that container trucks are DUMPING their loads on the ground, material is being separated, reloaded into containers and trucked out.
CEASE and DESIST IMMEDIATELY
Such use constitutes transporting, handling, storing and sorting of solid waste. An activity requiring site assignment by the Department of Environmental Protection as a "TRANSFER STATION".
A container company must not bring back to the site waste inside containers or even store them in registered vehicles over night. All trucks are to leave and arrive EMPTY!
The use of this site as a transfer station is prohibited by the City of Revere Revised zoning Ordinances, Section 17.16.010 Table of Uses.
Further, according to records in the Building Department, no authorization has been asked for or given to operate a waste container company at this location. The site is approved as "Suffolk Building Supply" a "Wholesale and Product Distribution Activity" and "Warehouse", not a waste container trucking company.
CEASE and DESIST all use of this site for any purpose other than "Wholesale and Product Distribution and Warehouse".
If you disagree my [sic] notice above you may appeal my decision to the City of Revere Zoning Board of Appeals per Massachusetts General Law, Chapter 40A, Section 8 and 15 within 30 days of this notice. (All emphasis in original).
E.Z. Disposal had not previously been advised that it was operating in violation of the Ordinances despite the fact that it had operated the same type of business from the Premises since 1989.
E.Z. Disposal did not appeal the Order to the Zoning Board of Appeals for Revere ("ZBA").
On April 20, 1998, E.Z. Disposal wrote to Ferruzzi in response to the Order. The letter informed Feruzzi that the Premises were being cleaned "prior to its use as a 'Wholesale And Product Distribution and Warehouse' by Robert N. Karpp Co. Inc. Building Materials." It also advised that the code inspector from the Revere Board of Health had visited the site, spoken with Merullo, and was satisfied with what was occurring at the Premises. E.Z. Disposal, Inc. did not take issue with the Order's directive that the Premises not be used as a transfer station or the Order's directive that the Premises not be used as a waste container trucking company. Rather, Merullo represented that the Premises were being cleaned for use as a "Wholesale And Product Distribution and Warehouse," exactly as the Order directed.
Specifically, Merullo noted that there were trailers in the yard of the Premises which had been used for several years to store certain building materials. Merullo explained that E.Z. Disposal was in the process of breaking up, removing and disposing of those materials.
In late April or early May of 1998, Ferruzzi and another inspector from the Revere Board of Health visited the Premises. Ferruzzi agreed that E.Z. Disposal was not operating as a transfer station and stated that he would provide a confirmation letter. The parties discussed the difference between Suffolk Building Supply's use of the Premises for supplying building materials at wholesale and E.Z. Disposal's use. From time to time, E.Z. Disposal received dumpsters at the Premises full of used building materials. On some occasions, E.Z. Disposal had sorted these materials, separating those materials that could be resold. At the meeting, Feruzzi stated that he objected to this practice as inconsistent with the use made of the Premises by Suffolk Building Supply, in particular since it involved the resale or recycling of used building materials. His statement was fully consistent with the first half of the Order which mandated that all trucks leave and arrive empty. Feruzzi made no mention of E.Z. Disposal's storage of equipment on the Premises and did not state that E.Z. Disposal had failed to comply with the Order. Neither is there evidence that Ferruzzi affirmatively approved the practice of E.Z. Disposal's storage of equipment on the Premises or that he stated that he believed that E.Z. Disposal was in compliance with the Order.
After the meeting with Ferruzzi, RicMer's engineering consultant sent a letter dated May 8, 1998 to the Massachusetts Department of Environmental Protection explaining that E-Z Disposal was not operating as a transfer station.
Merullo subjectively understood it to be the Building Inspector's position that E.Z. Disposal could not sort and sell used materials but that the waste containers had to be empty as they entered and left the Premises. Indeed, the first part of the Order itself unequivocally directed that "[a]ll trucks are to leave and arrive EMPTY!" (emphasis in original). Despite the language in the second half of the Order, prefaced by the word "[f]urther," that no authorization has been given to operate a waste container trucking business and that E.Z. Disposal must cease and desist all use of the site for any purpose other than "Wholesale and Product Distribution and Warehouse," Merullo believed that E.Z. Disposal could continue to operate its waste container trucking company business on the Premises and could continue to store waste containers at the Premises as long as they were empty when they entered and left the Premises. He believed the Order to be complied with, rescinded, or, at a minimum, stayed pending the continued clean-up of the Premises.
On or about May 8, 1998, Merullo informed Ferruzzi that E.Z. Disposal would no longer bring full dumpsters back to the Premises to sort building materials to be resold or recycled. From that time to the present, E.Z. Disposal has not engaged in that practice. Merullo believed E.Z. Disposal to be in full compliance with all of the issues addressed in the Order even though E.Z. Disposal did not intend to cease using the property in the manner specified in the Order and even though the directive not to operate a waste container trucking company appeared in the second half of the Order which made no reference to trucks leaving and arriving empty. Prior to the expiration of the thirty days E.Z. Disposal had to appeal the Order, Merullo did not obtain any oral or written confirmation from Feruzzi that E.Z. Disposal would be in full compliance with all of the issues addressed in the Order as long as it stopped bringing full dumpsters back to the Premises to sort building materials to be resold or recycled.
On June 24, 1998, Ferruzzi sent a letter to Merullo, referencing the Order and Merullo's April 20th response. Specifically, Ferruzzi accepted Merullo's representation that the Premises were "not presently being used as a 'Transfer Station' in violation as notified to [Merullo] in [Ferruzzi's] April 17, 1998 letter." The letter went on to state that "[h]owever, there were other issues raised in [the April 17, 1998] letter that [Merullo has] not responded to and are outstanding. Please note these and follow thru in addressing them."
In July, 1998, Ferruzzi again inspected the Premises. Ferruzzi stated that City Hall was "on his case" concerning the transfer station at the Premises and that he was receiving numerous phone calls from city councilors and other officials. Ferruzzi stated emphatically to Merullo that "this was not personal between he and [Merullo, that] he was getting a lot of pressure and that 'he was not for [Merullo] or against [Merullo].'" During the meeting, Feruzzi did not discuss the question of whether E.Z. Disposal was bringing full containers onto the Premises or selling used building materials. Neither is there evidence that Ferruzzi mentioned the Order or stated that it was his position that E.Z. Disposal was or was not violating the Order. There was no question in Merullo's mind that E.Z. Disposal was in compliance with the Order, but again he did not seek confirmation of his belief.
The City of Revere (the "City") hired E.Z. Disposal, on August 26, 1998, to perform removal and disposal of debris and hazardous waste using E.Z. Disposal's solid waste containers at a job site in Revere. The City's willingness to hire E.Z. Disposal further led Merullo to believe that the Order was complied with, rescinded or stayed.
On August 17, 1998, four months after issuance of the Order, RicMer filed an Environmental Notification Form with the Massachusetts Executive Office of Environmental Affairs, thereby providing public notice of its intention to develop a solid waste transfer facility on the Premises. Ferruzzi informed RicMer's engineering consultant, by letter dated August 18, 1998, that any permit application for a transfer station would be denied as a prohibited use under the Ordinances. On October 16, 1998, RicMer, which is not a party to the Order, filed a complaint in the Land Court seeking a declaration that the Ordinances do not validly prohibit solid waste transfer stations. That complaint does not address whether a waste container facility is permitted to operate in a general industrial zone.
Beginning in 1999, the number of visits and inspections by various city officials increased in frequency and intensity. Ferruzzi never indicated to Merullo during this period that E.Z. Disposal was not in compliance with the Order or that any issue remained outstanding. Neither is there any evidence that Feruzzi represented that he deemed E.Z. Disposal to be in compliance with the Order or that the Order had been rescinded or stayed.
Ric-Mer's proposed transfer station has been the subject of intense political opposition and debate in the City since its proposal. There have been rallies and demonstrations. Editorials have called upon City officials to take a stronger stance against RicMer and the proposed transfer facility. The Mayor of the City and the City Council have publicly pledged to fight the proposal. A local newspaper characterized the opposition to the proposed facility as "one the City cannot afford to lose."
In early March of 1999, Ferruzzi informed Merullo that, in response to city council meetings and numerous calls from citizens and city officials about the transfer station, he intended to issue another cease and desist order to E.Z. Disposal on the basis that E.Z. Disposal was operating a trucking company business different in kind than a building supply business and, therefore, was not in compliance with the Ordinances. Merullo replied that E.Z. Disposal was lawfully operating a business that it had for over ten years and that the City was improperly targeting E.Z. Disposal because of RicMer's transfer facility proposal.
On March 29, 1999, almost a year after the Order had issued, Ferruzzi sent Merullo a letter which referenced the Order. Specifically, Ferruzzi stated that "[t]he 2nd half of my letter to you of April 17, 1998 outlined your non-authorized use of [the Premises] for a waste container trucking company." Ferruzzi further stated that he had been led to believe by Merullo's counsel that Merullo would be challenging in court the issue of whether a waste container trucking company was a permitted use and that, as he had just learned that Merullo did not do so, he was reminding E.Z. Disposal of its obligation to "'Cease and Desist all use of this site for any purpose other than Wholesale and Product Distribution and warehouse', immediately." The letter also states that the matter has now been placed into the hands of the Legal Department for immediate enforcement.
On April 14, 1999, Feruzzi conducted another inspection of the Premises, at which time he observed that E.Z. Disposal continued to operate a solid waste container trucking company and to store waste containers of various sizes at the Premises. He observed approximately thirty-five waste containers, including dumpsters, open-top roll-off waste containers and waste compactors.
On April 28, 1999, E.Z. Disposal appealed the March 29, 1999 communication to the ZBA, which denied the requested relief. On July 12, 1999, E.Z. Disposal filed an appeal of the ZBA's denial to the Land Court, where it is currently pending. On May 4, 1999, Ferruzzi instituted the instant action by filing a complaint for declaratory and injunctive relief to enforce E.Z. Disposal's compliance with the Order.
This court, therefore, does not address whether the March 29, 1999 communication is itself a cease and desist order or, assuming it is, whether it is valid. The Building Inspector is not precluded from enforcing the Order, if it is enforceable, simply because of the pendency of the other action.
E.Z. Disposal's request to the Chief Justice for Administration and Management of the Trial Court for consolidation of the instant action with the Land Court action was denied.
DISCUSSION
Summary judgment shall be granted where there are no material facts in dispute and the moving party is entitled to judgment as a matter of law. Cassesso v. Comm'r of Correction, 390 Mass. 419, 422 (1983); Community Nat'l Bank v.Dawes, 369 Mass. 550, 553 (1976); Mass.R.Civ.P. 56(c). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue and that the moving party is entitled to judgment as a matter of law. Pederson v.Time, Inc., 404 Mass. 14, 16-17 (1989). See alsoKourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). "If the moving party establishes the absence of a triable issue, the party opposing the motion must respond and allege specific facts which would establish the existence of a genuine issue of material fact in order to defeat [the] motion . . . ." Pederson, 404 Mass. at 17.
General Laws c. 40A, § 8 provides:
An appeal to the permit granting authority as the zoning ordinance or by-law may provide, may be taken by any person aggrieved by reason of his inability to obtain a permit or enforcement action from any administrative officer under the provisions of this chapter . . . or by any person . . . aggrieved by an order or decision of the inspector of buildings, or other administrative official, in violation of any provision of this chapter or any ordinance or by-law adopted thereunder.
General Laws c. 40A, § 15 requires that a person bring an appeal under section 8 within thirty days from the date of the order or decision being appealed. See also Section 17.52.020(B) of the Ordinances ("Any appeal of a decision or order made by the building inspector . . . shall be taken within thirty days from the date of such decision or order by filing written notice of appeal, specifying the grounds thereof . . . .").
General Laws c. 40A, § 14 expressly grants jurisdiction to a board of appeals "[t]o hear and decide appeals" under section 8, and the board may reverse, affirm or modify the order being appealed; section 17 of c. 40A allows any person aggrieved by a decision of the board of appeals to seek judicial review within twenty days after the decision has been filed with the city or town clerk.
Ferruzzi contends that, since E.Z. Disposal failed to appeal the Order within thirty days, it is now bound by the Order and cannot contest Ferruzzi's right to its enforcement. In general, "'[i]n the absence of a statutory directive to the contrary, the administrative remedies should be exhausted before resort to the courts.'" Banquer Realty Co. v. Acting Building Comm'r, 389 Mass. 565, 572 (1983), quoting Gordon v. Hardware Mutual Casualty Co., 361 Mass. 582, 587 (1972). "[E]ven where there is an alternate judicial or statutory remedy providing access to the courts, . . . if administrative action 'may afford [a person aggrieved] some relief, or may affect the scope or character of judicial relief, exhaustion of the possibilities [of such administrative action] should ordinarily precede independent action in the courts.'" Clark Clark Hotel Corp. v. Building Inspector, 20 Mass. App. Ct. 206, 209 (1985), quoting Nelson v.Blue Shield of Mass. Inc., 377 Mass. 746, 752 (1979). When an aggrieved person fails to avail himself of the opportunity to appeal action taken by an administrative agency, it cannot later challenge the validity of the Order "'in a proceeding which, regardless of its form, [is] the equivalent of an appeal.'" Bonfatti v. Zoning Board of Appeals, 48 Mass. App. Ct. 46, 50 (1999), quotingKlein v. Planning Board, 31 Mass. App. Ct. 777, 778, rev. denied, 413 Mass. 1103 (1992). Raising issues collaterally as a defense to enforcement of a cease and desist order, as opposed to directly by appealing such order, is the equivalent of an appeal. See generally Balcam v. Hingham, 41 Mass. App. Ct. 260, 266, rev. den'd, 423 Mass. 1111 (1996) (plaintiffs waived right to seek judicial review of denial of occupancy permit by failure to appeal to town zoning board of appeals). The fact that the Building Inspector is the plaintiff seeking to enforce the Order rather than E.Z. Disposal being the party who initiated the action does not give E.Z.Disposal greater rights than it would otherwise have to challenge the Order. The appropriate method to challenge a cease and desist order is to appeal to the ZBA.
E.Z. Disposal argues that the principles of exhaustion do not bar it from contesting, at this time in this forum, the validity of the Order which Feruzzi is seeking to enforce because Ferruzzi's silence, after he accepted Merullo's representation that E.Z. Disposal was not operating a transfer station at the Premises, indicated that E.Z. Disposal was in compliance with the entire Order or that the Order was rescinded or stayed. E.Z. Disposal maintains that, because Ferruzzi never mentioned any violation other than the purported operation of a transfer station during his visits to the Premises after he had issued the Order, the remaining aspects of the Order were rescinded, thus precluding Ferruzzi from enforcing it.
As for compliance, the undisputed facts demonstrate that E.Z. Disposal did not comply with the unambiguous directive in the Order that a waste container trucking company not be operated at the Premises. E.Z. Disposal continues to operate as a waste container trucking company there.
In support of its argument that the Order has been rescinded, E.Z. Disposal relies on cases in which a party to a contract — not a local official — was held to have waived its right to strict compliance with a particular provision of an agreement by its conduct, including failure to object to a certain practice. See, e.g., McCarthy v.Tobin, 429 Mass. 84, 88-89 (1999); Church of God in Christ, Inc. v. Congregation Kehillath Jacob, 370 Mass. 828, 833-834 (1976); Vitti v.Garabedian, 264 Mass. 1, 5-6 (1928); Porter v. Harrington, 262 Mass. 203, 207 (1928). In this municipal, non-contract setting, the concept of waiver or rescission by silence of a unilateral directive contained in a cease and desist order is inapplicable. See Wallingford v. Roberts, 146 A.2d 588, 589 (Conn. 1958) (stating that "[t]he Zoning Commission, by delaying civil process until the institution of the present action [over three years later], could not be deemed to have avoided, by waiver, the duty which it owed to the public to compel compliance with the zoning regulations").
E.Z. Disposal cites no case which holds that a local official can rescind an order, such as a cease and desist order, through silence. Contrast Castelli v. Board of Selectmen, 15 Mass. App. Ct. 711, 715 (1983) (building inspector, by his testimony, repudiated the stop order);Napolitano v. Zoning Bd. of Appeals, No. 0536421, 1997 WL 275582, at *6 (Conn.Super.Ct. 1997) (building inspector explicitly rescinded a cease and desist order directing a halt to construction pending establishment of the boundary line in a subsequent letter which disclosed the new evidence regarding the boundary line upon which the inspector based his decision to rescind). Since neither the doctrine of laches nor the doctrine of estoppel is a defense to an action to enforce a municipality's by-laws or ordinances, it would be anomalous were a building inspector's silence to be sufficient to amount to recission of a cease and desist order. Cf. Cape Resort Hotels, Inc. v.Alcoholic Licensing Board, 385 Mass. 205, 224 (1982) (stating that the general rule that laches and estoppel do not constitute defenses to a municipality's enforcement action applies even where defendant has made a substantial financial investment); McAleer v. Board of Appeals, 361 Mass. 317, 322 (1972) (laches is no defense); Ferrante v. Board of Appeals, 345 Mass. 158, 163-164 (1962) ("doctrine of estoppel cannot stay the hand of a municipality in enforcing its zoning laws"); Everett v. Capitol Motor Transportation Co., 330 Mass. 417, 421 (1953) ("doctrine of laches has no application to the enforcement by a municipality of its ordinances"); Lincoln v.Giles, 317 Mass. 185, 187 (1944) (holding that "[t]he delay of the building inspector, if there was a delay, in proceeding against the defendant after he began to use his premises for a purpose not permitted by the by-law does not bar the town from enforcing the by-law").
"Recognizing . . . the principle that governmental powers are generally not to be forfeited by the inaction or actions of local officials in disregard of the law, most courts hold that a municipality is not precluded from enforcing its zoning regulations merely because of the inaction of its officer in the face of violations." 8 Patrick J. Rohan, Zoning and Land Use Controls § 52.08[4][a], at 52-84 (Matthew Bender 1999 Supp. 1999) (footnote containing citations omitted). Thus, "[f]ailure of local officials to halt violations for a long period of time will also not prevent a later enforcement of the ordinance." Id. at 48-88.
Other than the inferences which E.Z. Disposal would have the court draw from Feruzzi's silence following issuance of the Order, there is not a scintilla of evidence that the building inspector rescinded or stayed the Order either before or after the time for appealing from the Order had expired. There is no evidence that Merullo advised Feruzzi that, notwithstanding the language in the Order, he understood that E.Z. Disposal would be in compliance with the second half of the Order provided that waste containers were empty as they entered and left the Premises. The reference in the Order to the necessity that trucks leave and arrive empty appears in the first half of the Order dealing with use of the site as a transfer station. There is also no evidence that Feruzzi affirmatively represented that E.Z. Disposal would be in compliance with the Order in its entirety as long as waste containers were empty as they entered and left the Premises or that, under such circumstances, E.Z. Disposal need not comply with the second half of the Order. Indeed, in his June 24, 1998 letter, Feruzzi reminded Merullo that he needed to address the outstanding issues in the Order unrelated to the transfer station; thereafter, there is no evidence of any affirmative statement by Ferruzzi relieving E.Z. Disposal from compliance with the Order.
Merullo's subjective beliefs do not negate the Order's express directives. Feruzzi did or said nothing in the thirty days following issuance of the Order that excused E.Z. Disposal from its obligation to timely appeal the Order if it wished to challenge any part of it. Furthermore, Merullo's subjective beliefs after the thirty day period expired are not evidence from which an inference may be drawn that Feruzzi shared those subjective beliefs and that, in Feruzzi's own mind, Feruzzi deemed the Order to have been rescinded. Cf.Polaroid Corp. v. Rollins Environmental Services (NJ), Inc., 416 Mass. 684, 696 (1993) (stating that "bare assertions and conclusions regarding a company officer's understandings, beliefs, and assumptions are not enough to withstand a well-pleaded motion for summary judgment");Hartford Accident Indemnity Co. v. Millis Roofing Sheet Metal, Inc., 11 Mass. App. Ct. 998 (1981) ("[e]xpressions of belief and understanding fall short of such specific facts 'as would be admissible in evidence' and are stated of the affiant's personal knowledge"), quoting Mass.R.Civ.P. 56(e).
The City's employment of E.Z. Disposal's services and equipment is not evidence of rescission of the Order. As discussedsupra, laches or estoppel is no defense to a municipality's enforcement action.
To accept the defendant's position would mean that any party subject to a cease and desist order is free to ignore the statutory scheme for appealing such orders and may later defend an enforcement action by contesting the validity of such order, without having pursued any administrative remedy, as long as the Building Inspector has not promptly sought enforcement of the cease and desist order and the target of such order subjectively believed that it was not going to be enforced. Such a result would make a mockery of exhaustion principles.
E.Z. Disposal's further contention that it was not a "person aggrieved" under c. 40A, § 8 when the Order issued in April of 1998, and therefore was not required to appeal, is without merit. "In zoning litigation, the statutory phrase 'person aggrieved' which appears in §§ 8 and 17 of G.L.c. 40A, has meant someone who can assert a plausible claim of private right, private property interest, or private legal interest as opposed to a general public concern about a zoning question."Commonwealth v. Dowd, 37 Mass. App. Ct. 164, 166-167 (1994). The Order required E.Z. Disposal to take certain actions "immediately" and, as such, infringed upon E.Z. Disposal's legal rights. 2 Martin R. Healy, ed., Massachusetts Zoning Manual § 13.1, at 13-2 (MCLE 1999) (stating that a landowner is aggrieved by the issuance of a cease and desist order). See also Bianco v. Darien, 254 A.2d 898, 900-901 (Conn. 1969) (person served with a cease and desist order is aggrieved and can appeal to the zoning board of appeals). Cf. Commonwealth v. A. Graziano, Inc., 35 Mass. App. Ct. 69, 73, rev. denied, 416 Mass. 103 (1993) (landowner facing criminal prosecution, while at the same time pursuing an administrative appeal under G.L.c. 40A, § 8 challenging a building inspector's cease and desist order, can move to stay the criminal proceeding pending the outcome of the administrative appeal); Clark Clark Hotel Corp., 20 Mass. App. Ct. at 210 (motel's action against town building inspector challenging the latter's cease and desist order preventing owner's use of premises for certain intermittent sales was barred by motel's failure to exhaust its administrative remedies); Castelli, 20 Mass. App. Ct. at 713 (opinion premised on assumption that subject of stop order had the right to appeal from the stop order to the zoning board of appeals pursuant to G.L.c. 40A, § 8). Accordingly, once the Order issued, E.Z. Disposal was a "person aggrieved" and should have appealed the order to the ZBA if it wished to dispute the Order's validity in the context of an enforcement action brought by the building inspector.
E.Z. Disposal's argument that it was not required to appeal the Order because it is facially invalid also fails. E.Z. Disposal claims that the Order is facially invalid because, in violation of section 17.60.060 of the Ordinances, it failed to specify the time within which E.Z. Disposal must remedy the listed violations or the penalties which may ensue if E.Z. Disposal failed to make such remedies. Apart from the fact that any such argument could and should have been addressed through a timely appeal to the ZBA, see generally G.L.c. 40A, § 8, E.Z. Disposal's quotation in its memorandum of law of section 17.60.060 eliminates the prefatory language "[i]n either case provided for in Sections 17.60.040 or 17.60.050," which modifies the language relied upon by E.Z. Disposal. Section 17.60.040 applies to the withholding of a permit and certificate required for construction or alteration. Section 17.60.050 applies to the revocation of a permit, certificate, or license required by the building, structure, or use. The Order does not withhold a permit and certificate required for construction or alteration, and it does not revoke a permit, certificate, or license required by a building, structure, or use. Thus section 17.60.060 is inapplicable.
Next, E.Z. Disposal claims it is excused from exhausting the administrative remedies set forth in section 8 because the issuance of the Order was not a result of Feruzzi's independent, good-faith judgment, but instead was the outcome of improper pressures placed on him by other city officials and the public. Where a building inspector acts outside the scope of his authority conferred by G.L.c. 40A, it is unreasonable to compel the affected party to pursue an appeal to the zoning board; the appropriate means of redress is through a petition for mandamus.Ouelette v. Building Inspector, 362 Mass. 272, 277 (1972). See also Castelli, 15 Mass. App. Ct. at 713-714 (where building inspector repudiated stop order in his testimony or had shown it not to have been his independent action or prompted by any zoning considerations, court had authority to vacate the stop order in a proceeding instituted in Superior Court seeking its revocation despite plaintiff's failure to have appealed the stop order to the zoning board of appeals).
E.Z. Disposal has failed to produce any facts which create a genuine issue of material fact as to whether the Order was prompted by non-zoning considerations, namely improper pressures placed on Feruzzi by other city officials, and thus E.Z. Disposal is not excused from its failure to have exhausted the administrative remedies then available to it. The fact that a cease and desist order had not been issued to E.Z. Disposal before April 17, 1998, that RicMer — a different entity in which Merullo was also a principal — had hired an engineering consultant some time before early April of 1998 to contact city officials to discuss the possibility of locating a transfer station on the Premises prior to issuance of the Order, and that the Order issued thereafter is an insufficient basis on which to draw a reasonable inference that Ferruzzi issued the Order as a result of improper pressures having been applied on him. There is no hint that Merullo, through RicMer, was threatening to operate a transfer station on the Premises without securing a permit. The fact that, on some unspecified date or dates prior to early April of 1998, an engineering consultant was contacting unnamed city officials to discuss the "possibility" of RicMer's locating a transfer station at the Premises does not, in and of itself, lend itself to an inference that one or more of those city officials thereafter induced Feruzzi to take an action that he did not believe was warranted or proper.
E.Z. Disposal's request for a continuance of the instant motion "[i]f the Court entertains doubt regarding whether triable issues of fact exist sufficient to prevent entry of summary judgment" is denied. That request, which was made in order to allow for "certain discovery to occur," is contained in E.Z. Disposal's supplemental memorandum of law filed after the hearing on the motion for summary judgment. The issue of lack of improper pressure was raised by E.Z. Disposal in its opposition to the motion for summary judgment, and, yet, prior to that hearing, no motion was filed pursuant to Mass.R.Civ.P. 56(f). In its opposition to the plaintiff's motion for summary judgment, E.Z. Disposal simply asserted, in a footnote without any explanation, that it "will seek discovery from the City to support its position, which it has not yet had an opportunity to do." At no time has E.Z. Disposal filed an affidavit setting forth the reasons why it could not, absent additional time, present "facts essential to justify [its] opposition." See Mass.R.Civ.P. 56(f) ("Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may . . . order a continuance . . . ."). The instant complaint was filed on May 4, 1999; the summary judgment motion was filed in August of 1999 and heard in December. E.Z. Disposal had ample time to serve document requests, notice depositions or otherwise engage in discovery.
It does not follow from the fact that Feruzzi may have been contacted by city officials as a result of RicMer's interest in locating a transfer station on the Premises — and there is no evidence of such a contact — that Feruzzi was ordered to issue a cease and desist order or that he issued the Order while believing that E.Z. Disposal really had a right to be operating a solid waste container trucking company business on the Premises. Contrast Ouelette, 362 Mass. at 275-276 (building inspector refused to issue a building permit, not because of noncompliance with any zoning ordinance, but because the city council, through a resolve, ordered him not to issue such a permit until it acted on a proposed new zoning ordinance);Castelli, 15 Mass. App. Ct. at 712-713 (building inspector determined that the work at issue was proceeding in accordance with the permit but nevertheless issued a stop work order only because the chairman of the selectmen caused the town health agent to go to the inspector's home where the latter was sick in bed and ordered him to issue the stop work order; building inspector testified that he could not say that he agreed with the order and that he had signed it because he had been ordered to do so and not because of any noncompliance with the zoning requirements.)
Nothing in the wording of the Ordinances, either as they existed when the Order issued or in 1989 when E.Z. Disposal began its operations on the Premises, gives rise to an inference that, contrary to Feruzzi's affidavit, the building inspector did not, in fact, believe E.Z. Disposal to be in violation of the law. E.Z. Disposal does not dispute the statement in the Order that, "according to records in the Building Department, no authorization has been asked for or given to operate a waste container company at this location." Even if it could be inferred that Feruzzi was prompted to look at what was happening on the Premises because of RicMer's interest in operating a transfer station there, a reasonable inference cannot be drawn that the Order issued as a result of outside pressure, to retaliate for RicMer's interest in the Premises, or to dissuade Merullo from following through with RicMer's plans, rather than Feruzzi's conclusion that E.Z. Disposal was engaging in uses that were not permitted. After issuance of the Order and after issuance of the June 24, 1998 letter from Feruzzi to Merullo reminding him that the Order addressed issues in addition to the transfer station issue, the City expressed its opposition in various ways to RicMer's operating a transfer facility at the site. Such conduct does not amount to evidence of improper interference having been exercised upon Feruzzi by city officials to induce him, despite misgivings or outright disagreement, to issue the Order in the first place. In sum, the record does not give rise to a reasonable inference that the building inspector acted outside the scope of his authority conferred by G.L.c. 40A. Thus, there was an appropriate means of redress in the administrative remedy provided in c. 40A, § 8.Ouelette, 362 Mass. at 277-278 (exhaustion will not be excused "if the reason given for refusing a building permit comes within G.L.c. 40A, § 12 . . . or if there is an adequate administrative remedy provided in law. . . .").
Quite unlike the fact patterns in Oulette andCastelli, here the building inspector has stated under oath that he has concluded that the operation of a waste container trucking company and the storage of waste containers used in that business at the premises by E.Z. Disposal violates the Ordinance because such activity is not incidental to a business or industry legally conducted as of right or by special permit in the industrial district by E.Z. Disposal.
Nor does the evidence support an inference that Ferruzzi brought the instant enforcement action because he was ordered to by other city officials or induced to do so by outside pressures. Contrast Ouelette, 362 Mass. at 275-277;Castelli, 15 Mass. App. Ct. at 713-715. Furthermore, Feruzzi's motivation for seeking to enforce the Order at present is not relevant. The Order was not appealed from and no reason exists, such as improper pressure having been applied to issue the Order initially, which would excuse E.Z.Disposal's failure to exhaust. The Order is therefore enforceable. Ferruzzi, as the building inspector, has the right to enforce cease and desist orders.
Finally, E.Z. Disposal contends that, since the thrust of its objection to enforcement of the Order involves the validity and extent of the Ordinances as applied to E.Z. Disposal's use of the Premises, it is exempted from the exhaustion doctrine. Notwithstanding Banquer, upon which the defendant relies, "the doctrine of exhaustion is alive and well in the zoning area." Clark Clark Hotel Corp., 20 Mass. App. Ct. at 210. Banquer involved a claim brought under G.L.c. 240, § 14A, which contains language indicating that exhaustion of administrative remedies is not required.Banquer, 389 Mass. at 572. "[B]ut for the legislative determination found by the court in c. 240, § 14A, exhaustion principles would have been applied." Clark Clark Hotel Corp., 20 Mass. App. Ct. at 210. The instant action is not one pursuant to c. 240, § 14A.
Moreover, in Clark Clark Hotel Corp., a case involving G.L.c. 231A, the Court declined to construeBanquer "to mean that the normal appellate route of c. 40A can be avoided whenever a dispute arises as to 'the extent to which' a by-law affects a use." Clark Clark Hotel Corp., 20 Mass. App. Ct. at 211. Here, as in Clark Clark Hotel Corp., there has been no showing that the remedy of c. 40A was inadequate when the Order issued, that Feruzzi had bowed to improper pressures in issuing the Order, that the question is one purely of law, or that any other exception to the doctrine of exhaustion is applicable. Id. at 213-214. Unlike the situation in Banquer, there is no statutory directive here excusing exhaustion.
Whether the way in which E.Z. Disposal is using the Premises is a permitted use is a question that the Legislature has deemed to be appropriately addressed and determined at the local level prior to resort to the courts. "[T]he question whether a particular use is 'customarily incidental' to another use is a 'factual issue.' Indeed, that question is peculiarly apt for local interpretation." Clark Clark Hotel Corp., 20 Mass. App. Ct. at 212, quoting Harvard v.Maxant, 360 Mass. 432, 439 (1971)). Courts should be careful not to encroach upon the province of an administrative board, especially where, as here, the issue is factual. St. Luke's Hospital v. Labor Relations Comm'n, 320 Mass. 467, 470 (1946); Clark Clark Hotel Corp., 20 Mass. App. Ct. at 212.
The cases upon which E.Z. Disposal relies for the proposition that any injunctive relief must be limited in light of its prior protected non-conforming use do not involve cease and desist orders as to which the aggrieved party's ability to contest the building inspector's determination as to what is a permitted use was waived by failure to exhaust. E.g., Cape Resort Hotels, Inc. v. Alcoholic Licensing Board, 385 Mass. 205, 226-227 (1982); Building Inspector v.Haddad, 369 Mass. 452 (1976); Sterling v.Poulin, 2 Mass. App. Ct. 562 (1974). The Ordinances in both 1989 and when the Order issued permitted, as a matter of right, a building construction and contracting storage yard or facility as well as wholesale and product distribution activities. The changes in the Ordinances thus are not relevant to the Building Inspector's determination that operation of a solid waste container trucking company is not a permitted use. Similarly, the provision with respect to the outdoor storage of material, equipment and vehicles in industrial districts "incidental to the operation of a business or industry" remained unchanged, such that the Building Inspector's determination that the business or industry to which the storage is incidental must be a permitted use is unaffected by the changes in the Ordinances.
If, on this record, exhaustion were to be excused, no owner would be likely to follow the administrative route when a cease and desist order is issued. Waiting until there is an enforcement action and then raising issues as to what is or is not a permitted use as a defense to such an action would become the normal method of challenging a cease and desist order. Such a result is not what Banquer intended. See Clark Clark Hotel Corp., 20 Mass. App. Ct. at 213 (holding that c. 231A should not be allowed to become the normal method of challenge when a use is questioned by a zoning enforcement official). Thus, in this forum at this time, E.Z. Disposal is not permitted to raise, as an objection to enforcement of the Order, arguments which it could have raised had it pursued its administrative remedies.
ORDER
For the foregoing reasons, it is hereby ORDERED that plaintiff's motion for summary judgment is ALLOWED . The Court DECLARES that the April 17, 1998 cease and desist order is valid and enforceable. It is further ORDERED that E.Z. Disposal is enjoined from operating, at the Premises, a waste container trucking company and from storing solid waste containers at the Premises.
______________________________ E. Susan Garsh Justice of the Superior Court
Dated: February 2, 2000