Opinion
No. 15–P–1308.
07-18-2016
Rick MANSUR & another, v. ZONING BOARD OF APPEALS OF AVON & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiffs, Rick Mansur and Margo Mansur, appeal from a judgment of the Superior Court dismissing their complaint seeking relief in the nature of mandamus. A writ of mandamus is available not as a matter of right but of discretion, Rudnicki v. District Ct. Dept. of the Trial Ct., 419 Mass. 1008, 1008 (1995), and may only be granted “to prevent a failure of justice in instances where there is no other adequate remedy,” Lutheran Serv. Assn. of New England, Inc. v. Metropolitan Dist. Commn., 397 Mass. 341, 344 (1986).
The plaintiffs seek to enforce a judgment of the District Court in a zoning matter. In a separate action in the Superior Court, the town of Avon's building inspector sought to enforce the same judgment. In the Superior Court action, the judge found that the District Court had lacked subject matter jurisdiction in the case and the judge refused to enforce the District Court judgment. In other words, the controversy here has already been adjudicated, and a final and binding judgment has entered prohibiting the town of Avon from revoking the building permit at issue. That the plaintiffs failed to appropriately appeal the zoning decision, or successfully intervene in the prior Superior Court action, does not equate to a failure of justice. The judge was well within his discretion in dismissing the plaintiffs' complaint.
Judgment affirmed.
Margo Mansur.