Opinion
No. 07-00098.
March 14, 2007.
MEMORANDUM OF DECISION ON THE PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION
Before the Court is the motion of the plaintiff Town of Norton, by and through its Inspector of Buildings/Zoning Enforcement Officer, (the "Town") for a preliminary injunction to restrain the defendant George Gillis ("Gillis") from conducting a commercial trucking business, including a refueling station for commercial vehicles, on the defendant's residential property in violation of the Town's Zoning By-Law. After a hearing, the Court ALLOWS the motion. In so doing, however, the Court excludes from the injunctive order the storage and use of Gillis's Ford 350 pickup truck on the premises. The Court's reasoning follows.
Pertinent Facts
The premises are located in a residentially zoned district, and Gillis and his family reside there. In the ordinary course, commercial uses are not permitted in the district by the Town's Zoning By-Law.
Gillis owns a small trucking business. He is also is an avocational race car driver, and he owns at least one race car, which he transports to events in a trailer which he stores on the premises. In addition to two 18 wheel diesel trucks, Gillis owns a Ford 350 diesel pickup truck. All are registered as commercial vehicles. Gillis uses the pickup for transporting his race car trailer, and, presumably, he also uses it for other personal and business purposes.
At least as of August and early September 2006 Gillis stored both his 18 wheelers and his pickup on the premises. And in August 2006, with a permit issued by the Norton Fire Department, Gillis installed a 500 gallon diesel fuel tank adjacent to his garage. Gillis routinely fueled his trucks from the tank.
In the late summer of 2006 various neighbors complained to the Town about Gillis"s commercial use of the premises and the noise that was caused by the comings and goings of his trucks. The Town's building inspector, who functions, as well, as the Town's zoning enforcement officer (hereinafter, the "Inspector"), responded. The Inspector informed Gillis that a commercial trucking use was not allowed in the residential district. Gillis was further informed that the storage of more than one commercially registered truck weighing more than 6000 pounds on a residential lot for more than three consecutive days or a total of 15 days in a calendar year was prohibited by the applicable by-law.
Gillis responded by removing one of his 18 wheelers, but he refused to remove the other 18 wheeler and the pickup. Gillis refused to remove the pick-up because the Registry of Motor Vehicles registration recorded that that the truck's weight was 6000 pounds. Thus, Gillis believed that he only had one vehicle weighing in excess of 6000 pounds, and according to the by-law, as noted above, there was no restriction on the storage of a single such commercial vehicle in the residential district.
At the hearing before the Court, Town submitted an affidavit containing information from the Ford Motor Company website indicating that a Ford 350 pickup weighs at least 10,500 pounds.
Thereafter, Gillis's neighbors' complaints to the Town persisted on account of the continuing presence of the one 18 wheeler and the 350 pickup and the circumstance of their both being refueled out of the diesel storage tank. There were also complaints as to the second 18 wheeler being fueled on the premises even though it was no longer being stored there.
In response to the complaints, the Inspector investigated further and on October 16, 2006 issued a cease and desist order to Gillis as to the tank. (The Inspector had also reiterated the Town's position as to no more than one 6000 pound truck being stored on the premises.) The October 16th order formally noted that refueling commercial vehicles was not allowed in the residential district and that such use was not customarily incidental to residential use. The order suspended Gillis's use of the tank immediately, and Gillis was ordered to remove it from the property within 30 days. The order concluded with a formal notice of Gillis's right to appeal pursuant to G.L. c. 40A, § 8.
Gillis did not appeal. Instead, he continued to store one 18 wheeler and the pickup on the premises and to use the tank to refuel all three of his trucks.
The Town's verified complaint seeking injunctive relief was filed on January 22, 2007, and a hearing on the preliminary injunction was held on February 22, 2007.
Standard for Issuing Injunctive Relief
With this being an action brought by a local government entity to enforce the laws within its jurisdiction, the Court follows the SJC's guidance in LeClair v. Norwell, 430 Mass. 328, 331-2 (1999): "A judge, in these circumstances, must first determine whether there is a likelihood of success on the merits of a plaintiff's claims and then determine whether the requested order promotes the public interest, or, alternatively, that the equitable relief will not adversely affect the public." The proof of irreparable harm, normally required in the context of injunctive relief pursuant to Mass. R. Civ. P. 65, Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 617 (1980), is not required under these circumstances. Commonwealth v. Massachusetts CRINC, 392 Mass. 79, 89 (1984).
Merits
I find that it is likely that the plaintiff will succeed on the merits.
First, Gillis failed to timely appeal the October 16, 2006 cease and desist order. By failing to pursue his administrative appellate remedy, Gillis is foreclosed at this stage from advancing what would have been the basis of his appeal to the Town's action. When an aggrieved person fails to avail himself of the opportunity to appeal, 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), quoting Klein v. Planning Board, 31 Mass.App.Ct. 777, 778, rev. denied, 413 Mass. 1103 (1992).
Second (and independently of whether Gillis is deemed to have waived his defense by failing to have appealed the October cease and desist order), the Town's interpretation and enforcement of its by-law appears reasonable. In circumstances like this, it is not for the Court to substitute its judgment for that of local officials with regulatory jurisdiction over the subject matter. Tanner v. Board of Appeals of Botsford. 61 Mass. App. Ct. 647, 650 (2004). "[A]lthough interpretation of the by-law is in the last analysis a judicial function, deference is owed to a local zoning board's home grown knowledge about the history and purpose of its town's zoning by-law." Duteau v. Zoning Bd. of Appeals of Webster, 47 Mass. App. Ct. 664, 669 (1999). See also, Petrillo v. Zoning Bd. of Appeals of Cohasset, 65 Mass. App. Ct. 453, 460 (2006).
Third, although Gillis argues that he is the victim of selective enforcement of the Town's restrictions on commercial uses within the residential zone, the Court, in the absence of proof of clear arbitrary or discriminatory conduct by public authorities, will not interfere in the exercise of local authorities' enforcement discretion. "[T]he proper exercise of enforcement discretion . . . is not ordinarily judicially reviewable." Commonwealth v. Boston Edison Co., 444 Mass. 324, 334 (2005) (discussing the Commonwealth's prosecutorial discretion in enforcing provisions of G. L. c. 21E). "[J]udicial intrusion into agency discretion in enforcement matters is particularly inappropriate." Dicicco v. Department of Environmental Protection, 64 Mass. App. Ct. 423, 427-428 (2005).
Fourth, although Gillis did obtain a valid permit for the installation of the diesel fuel tank from the Town's Fire Department, compliance with the dictates of the Zoning By-Law cannot be excused by the action of an agency without zoning jurisdiction. "'The right of the public to have the zoning by-law properly enforced cannot be forfeited by the action of its officers.'" Building Inspector of Lancaster v. Sanderson, Mass. 157, 162 (1977), quoting Cullen v. Building Inspector of N. Attleborough, 353 Mass. 671, 675
(1968). See also Ferrante v. Board of Appeals of Northampton, 345 Mass. 158, 162-163, (1962) ("[T]he doctrine of estoppel cannot stay the hand of a municipality in enforcing its zoning laws").
Finally, the Court is satisfied that the enforcement of the Town's by-law in the current circumstances to protect the integrity of the residential district is in the public interest.
The Ford 350 Pickup
As noted above, Gillis's pickup is classified as a 6000 pound vehicle by the Registry of Motor Vehicles. While the Town presented evidence from the Ford Motor Company that the pickup's actual weight substantially exceeds 6000 pounds, the Court is unable on the present record to conclude that the Town will likely prevail on the issue. Accordingly, so much of the Town's motion for injunctive relief that seeks restrictions on the storage and use of the Ford 350 pickup on the premises is DENIED.
The Town's proposed order is amended to exclude the pickup from its coverage. It is otherwise adopted. See the Court's Order on Plaintiff's Motion for Preliminary Injunction that accompanies this memorandum of decision.