Opinion
April 21, 1983.
Michael P. Mack for the plaintiff.
Melvyn D. Cohen, Town Counsel, for the defendant.
The plaintiff has appealed from a judgment of the Superior Court which affirmed a decision of the board of appeals by which the board (a) determined that the use the plaintiff is making of its property is one which violates the relevant zoning by-law and (b) ordered the building inspector to enforce the by-law by ordering the plaintiff to cease and desist from the use in question. See Neuhaus v. Building Inspector of Marlborough, 11 Mass. App. Ct. 230, 231-235 (1981); William C. Bearce Corp. v. Building Inspector of Brockton, 11 Mass. App. Ct. 930 (1981); McDonald's Corp. v. Seekonk, 12 Mass. App. Ct. 351, 353 (1981). 1. There is no merit to the argument which the plaintiff has attempted under the present G.L.c. 40A, §§ 12 and 15, but the judgment is infected with numerous errors, not the least of which is the absence of findings of fact necessary to a determination of the propriety of the board's decision. See G.L.c. 40A, § 17; Neuhaus v. Building Inspector of Marlborough, 11 Mass. App. Ct. at 233-234. See and compare Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, 163-164 (1977). 2. We reject the notion that the expanded definition of a "lodging house" which was not adopted by the Legislature until 1965 (G.L.c. 140, § 22, as appearing in St. 1965, c. 171), and then only for use in G.L.c. 140, §§ 22 to 31, could shed any light on the meaning of the words "lodging houses" as employed in § IV-l(g) of the original zoning by-law of 1957. Compare Mioduszewski v. Saugus, 337 Mass. 140, 145 (1958); Framingham Clinic, Inc. v. Zoning Bd. of Appeals of Framingham, 382 Mass. 283, 290-296 (1981). The judge would have done better to consider the words in (g) in the context of the other uses permitted by § IV-1 and whether those words assumed content from the requirements of § IV-2, 3. More to the point, a further source of serious error is clear from the concluding sentence of the first unnumbered paragraph of the board's decision, from par. 13 of that decision, from the remarks of both counsel at trial, and from the numerous inconsistencies between the provisions of the original 1957 by-law (which was the only one offered in evidence) and what is permitted or required by the present G.L.c. 40A (see Casasanta v. Zoning Bd. of Appeals of Milford, 377 Mass. 67, 70-73 [1979]; Shalbey v. Board of Appeal of Norwood, 6 Mass. App. Ct. 521, 524-527 [1978]). The judge plainly did not have before him the zoning by-law which was in effect at the times of the inspection by the building inspector, the hearing before the board or the trial in the Superior Court. The judge could not take judicial notice that there had been no change in the relevant provisions of the by-law between 1957 and the time of trial in 1981 ( Warren v. Zoning Bd. of Appeals of Amherst, 383 Mass. 1, 8 [1981]), but that disability seems not to have prevented his affirming a decision which was based on a by-law he had never seen. 4. Finally, it is clear from several of the colloquies with counsel that the judge failed to appreciate that the plaintiff in this case does not have the burden of producing any evidence, even though it is the one questioning the decision of the board. This is not an instance in which a landowner is obliged to support the decision of the board, such as would be the case if he were forced to rely on the grant of a variance or a special permit. See Warren v. Zoning Bd. of Appeals of Amherst, 383 Mass. at 9; Ranney v. Board of Appeals of Nantucket, 11 Mass. App. Ct. 112, 118 (1981). Nor is this an instance in which the landowner must rely on a nonconforming use. See Bridgewater v. Chuckran, 351 Mass. 20, 24 (1966); Cape Resort Hotels, Inc. v. Alcoholic Licensing Bd. of Falmouth, 385 Mass. 205, 212 (1982), S.C., 388 Mass. 1013 (1983). This case, regardless of how it arose, has now assumed the posture of an enforcement case, in which the building inspector (or whoever has the duty of enforcement under the present by-law) has the burden of proving that the plaintiff's use of its premises violates the by-law. 5. The judgment is reversed, and the case is to stand for further proceedings in the Superior Court which are consistent with this opinion; costs of appeal are not to be awarded to any party.
So ordered.