Opinion
18-P-450
04-24-2020
Joseph BYLINSKI v. BUILDING COMMISSIONER OF DOUGLAS & Others.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This case concerns a judgment entered in the Land Court requiring defendants Guaranteed Builders & Developers, Inc. (GBI), and Louis C. Tusino to demolish a lakeside cottage in Douglas due to local zoning violations. Because the plaintiff's action was not brought or maintained in accordance with any relevant provision of the Commonwealth's Zoning Act (act), see G. L. c. 40A, we are constrained to reverse.
Background. In 1989, defendant GBI purchased the subject property (property), located at 103 Shore Road, on Wallum Lake in Douglas. On October 23, 1989, Tusino, president of GBI, acquired the property. The plaintiff, Joseph Bylinksi, owns the home directly adjacent, at 105 Shore Road.
Notwithstanding that the property lacked sufficient frontage and area to be buildable under Douglas's zoning bylaw, in mid-2008 the town's building commissioner issued GBI a permit for construction of a single family home. In early 2009, soon after GBI began excavation, Bylinski requested revocation of the building permit. The building commissioner refused Bylinski's request, and Bylinski appealed to Douglas's zoning board of appeals (board) in February 2009. The board failed to decide Bylinski's appeal within one hundred days (i.e., by June 5, 2009), thereby constructively revoking the permit pursuant to G. L. c. 40A, § 15, fifth par. GBI then unsuccessfully appealed the constructive revocation to the Superior Court. GBI did not pursue an appeal from that decision.
At the time, the building commissioner was Adelle Reynolds.
Bylinski filed notice of the board's failure to act with Douglas's town clerk as required by G. L. c. 40A, § 15, fifth par.
In the meantime, in October 2009, Bylinski had filed his own action in the Land Court seeking relief in the nature of mandamus. Notwithstanding revocation of the permit and the pendency of Bylinski's Land Court action, GBI completed construction of the house sometime before February 2, 2012. GBI thereafter applied for a variance, but that application was unanimously denied by the board.
GBI appealed to the Land Court from the denial of the variance; Bylinski intervened and, in April 2013, a Land Court judge entered summary judgment in Bylinski's favor. The Land Court judge's decision was affirmed by a panel of this court in a decision issued pursuant to our rule 1:28. See Guaranteed Bldrs., Inc. v. Zoning Bd. of Appeals of Douglas, 85 Mass. App. Ct. 1101 (2014). At the time, GBI argued that because the house was fully completed, the denial of a variance worked a "substantial hardship." We found that argument unavailing, noting, "GBI continued construction of the house in violation of the zoning ordinance, without a variance, in disregard of the challenge to the building permit." Id.
In June 2014, a Land Court judge dismissed Bylinski's mandamus complaint without prejudice, on the ground that he had failed to exhaust available administrative remedies by requesting enforcement from the building commissioner and, if necessary, appealing to the board. Bylinski appealed from the dismissal, but while his appeal was pending he pursued his administrative remedies. On June 26, 2014, Bylinski wrote to the building commissioner requesting enforcement of the zoning bylaw. The commissioner refused his request without supplying any reasoning. Bylinski then appealed to the board. In November 2014, the board sided with Bylinski and issued the demolition order.
At the time, Reynolds was still the commissioner.
GBI appealed the board's decision to the Uxbridge District Court, which affirmed it. GBI then appealed from that judgment to this court. In a single opinion published in August 2016, this court disposed of both (1) GBI's appeal from the Uxbridge District Court's affirmance of the demolition order, and (2) Bylinski's appeal from dismissal of this action for failure to exhaust administrative remedies. See Tusino v. Zoning Bd. of Appeals of Douglas, 90 Mass. App. Ct. 89, 90 (2016). When we dismissed GBI's appeal because it should have been directed to the District Court's Appellate Division, we also concluded that "[b]ecause the board's demolition order is final, the mandamus appeal is moot; the relief Bylinski seeks in the mandamus appeal has already been obtained in the zoning case." Id. at 92.
The house, however, remained standing. In February 2017, Bylinski moved to vacate the dismissal of his Land Court case. His motion was allowed and he thereafter filed a third amended complaint in the Land Court. The revised pleading added Tusino as a defendant, recounted the facts occurring after the case had been dismissed, and requested an injunction requiring GBI and Tusino to comply with the board's order.
In the decision now on appeal, the Land Court judge wrote, "GBI and Tusino have indicated that nothing short of a court order, for which they could be held in contempt, will cause them to comply with the [board's] decision."
Because we shall vacate the judgment insofar as it awarded direct relief against Tusino, we need not reach his argument that he was improperly added as a defendant after the applicable limitations period had run. See G. L. c. 40A, § 7. See also Barkan v. Zoning Bd. of Appeals of Truro, 95 Mass. App. Ct. 378, 388 (2019) (six-year limitations period set forth in G. L. c. 40A, § 7, is statute of repose). We note, however, that Tusino fails to address in his brief G. L. c. 231, § 51, which provides: "In all civil proceedings, the court may at any time, allow amendments adding a party, discontinuing as to a party or changing the form of the action, and may allow any other amendment in matter of form or substance in any process, pleading or proceeding, which may enable the plaintiff to sustain the action for the cause or for recovery for the injury for which the action was intended to be brought, or enable the defendant to make a legal defense. Any amendment allowed pursuant to this section or pursuant to the Massachusetts Rules of Civil Procedure shall relate to the original pleading" (emphasis added). See Wood v. Jaeger-Sykes, Inc., 27 Mass. App. Ct. 199, 200-201 (1989) ("[T]he Legislature enacted St. 1988, c. 141, § 1, substituting a new G. L. c. 231, § 51, for an earlier version. ... Given both the timing and the wording of the enactment, it is obvious that the Legislature's intent was to overrule Bengar [v. Clark Equip. Co., 401 Mass. 554 (1988) ]" [holding that allegations against added defendant stating new theory of liability may be time barred even if same plaintiff had brought action in timely fashion against other defendants for same injury, thus placing limits on so-called liberal Massachusetts rule for relation back of amendments] ).
Additionally, the current building commissioner, Larry Lench, was substituted for Reynolds as a defendant.
In December 2017, a Land Court judge entered judgment in Bylinski's favor against Tusino and GBI, stating, "GBI and Tusino shall within [thirty] days of the entry of this judgment file for appropriate permits for the removal and/or demolition of the dwelling on the [p]roperty, and shall within 120 days complete such demolition and removal." This appeal followed.
The judge went so far as to state in his memorandum of decision that "GBI and Tusino shall be held in contempt of this court should they fail to apply for the appropriate permits within [thirty] days or if they fail to complete demolition and removal of the dwelling on the [p]roperty within 120 days."
Discussion. 1. Propriety of appeal. As a threshold matter, we consider the procedural posture of the case. Bylinski's third amended complaint is styled as a single count, but seeks two different forms of relief against two different parties -- a direct injunction against the landowner, and mandamus relief against the building commissioner. The motion judge noted that Bylinski sought summary judgment not only on his claim for a direct injunction against Tusino, but also on his claim for mandamus relief against the building commissioner. The judge also noted that although the town took no position on Bylinski's action against Tusino, it "does oppose and object to any request or order that would otherwise require it to pursue, or assist in the pursuit of, the demolition of the house."
Hereinafter, we refer to Tusino and GBI, collectively, as Tusino.
Defendant Lench, as building commissioner, submitted a limited opposition to Bylinski's motion for summary judgment. Because no judgment entered against Lench and, thus, the town had no occasion to participate in this appeal, we do not consider Bylinski's request for mandamus relief as an alternative basis on which the judgment could be affirmed. Cf. National Lumber Co. v. Canton Inst. for Sav., 56 Mass. App. Ct. 186, 187 n.3 (2002) ("[W]e may affirm the lower court's judgment on any ground supporting it even in instances where a cross appeal would ordinarily be warranted").
Nonetheless, and although it was apparently briefed, the judge declined to consider Bylinski's mandamus claim on the ground that such relief was unnecessary because Bylinski had standing to pursue a direct injunction against Tusino. The judgment entered is silent as to any disposition of the mandamus claim.
"Because the action involved multiple parties, the court should not have entered judgment against fewer than all the parties without ‘an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.’ " See Appleton v. Hudson, 397 Mass. 812, 813 n.3 (1986), abrogated on other grounds by Jean W. v. Commonwealth, 414 Mass. 496 (1993), quoting Mass. R. Civ. P. 54 (b), 365 Mass. 820 (1974). "We do expect strict compliance with this rule." Appleton, supra at 813 n.2. See New England Canteen Serv., Inc. v. Ashley, 372 Mass. 671, 677-678 (1977). Nonetheless, in this instance, remanding the entire matter would cause needless delay -- especially considering that Bylinski first sought zoning relief more than a decade ago, in early 2009. Thus, we exercise our discretion to treat the appeal as properly before us. See Appleton, supra at 813 n.3. See also Lalchandani v. Roddy, 86 Mass. App. Ct. 819, 820 n.2 (2015). We note that, because Bylinski's claim for mandamus relief was never reduced to a judgment, it remains "live" on remand to the extent he wishes to pursue it, notwithstanding that Bylinski did not file his own notice of appeal.
2. Direct injunction against landowner. Under the act, a zoning enforcement action may be initiated through a written request directed to the officer charged with enforcing a zoning bylaw (in Douglas, the building commissioner). See G. L. c. 40A, § 7. That officer is then required to notify the requesting party, in writing, "of any action or refusal to act, and the reasons therefor, within fourteen days of receipt of such request." Id. After the officer has responded to the request, any "person aggrieved by reason of his inability to obtain a permit or enforcement action" may bring an appeal to "the permit granting authority as the zoning ordinance or by-law may provide." G. L. c. 40A, § 8. Here, that appellate authority is the board. Any person "aggrieved by a decision of the board," or aggrieved by the failure of the board to timely take action, may appeal under § 17 of the act to an appropriate court. G. L. c. 40A, § 17, first par.
The statute lists the courts with jurisdiction over zoning appeals; they include the Superior Court, the Land Court, and the District Court division "within whose jurisdiction the land is situated except in Hampden County." G. L. c. 40A, § 17, first par.
At oral argument, Tusino took the position that where an abutter initiates a zoning enforcement request resulting in issuance of a demolition order by the local board of appeals, the municipality then has unfettered discretion to decline to enforce the order. Accordingly, the argument goes, where the landowner against whom the order is directed is recalcitrant and municipal officials decline to force the issue, the abutter whose efforts resulted in the order is without a remedy. With that broad proposition, we disagree.
In addition to allowing a judge to annul a zoning board's decision upon a finding that the decision exceeded the board's authority, § 17 of the act empowers courts with jurisdiction over zoning appeals to "make such other decree as justice and equity may require." G. L. c. 40A, § 17, second par. These words have been construed as referring to "legal and equitable rights." Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555, 558 (1954). Additionally, under § 7 of the act, the Superior Court and the Land Court have jurisdiction to "enforce the provisions of this chapter, and any ordinances or by-laws adopted thereunder" and to "restrain by injunction violations thereof." G. L. c. 40A, § 7, fifth par.
Accordingly, aggrieved persons seeking zoning enforcement may obtain direct injunctive relief against landowners by commencing a zoning enforcement action, following the steps outlined in §§ 7 and 8 of the act, and then commencing an appeal pursuant to § 17 in Superior Court. See Cornell v. Michaud, 79 Mass. App. Ct. 607, 616 (2011) (affirming Superior Court order requiring owner to remove any and all structures on lot); Wells v. Zoning Bd. of Appeals of Billerica, 68 Mass. App. Ct. 726, 737 (2007) (affirming Superior Court order requiring removal of house and foundation); Vokes v. Avery W. Lovell, Inc., 18 Mass. App. Ct. 471, 487 (1984) (affirming Superior Court order enjoining defendant from garaging or maintaining eighteen-wheel vehicles on land).
We see nothing in the act that prevents repetitive requests for enforcement based on changing circumstances. Thus, as redundant as it may seem, where an aggrieved abutter obtains a demolition order through a zoning enforcement action commenced pursuant to § 7 of the act, nothing prevents that abutter from thereafter commencing a second enforcement action for the purpose of enforcing the order. Following the steps set forth in §§ 7 and 8 of the act -- even if for the second time -- would provide the abutter with a route to a § 17 appeal, in which a court with jurisdiction could provide injunctive relief. See G. L. c. 40A, §§ 7, 17. See also Cornell, 79 Mass. App. Ct. at 616 ; Wells, 68 Mass. App. Ct. at 737 ; Vokes, 18 Mass. App. Ct. at 487.
Over the lengthy course of the parties' legal wrangling, there have been three appeals brought pursuant to § 17 of the act -- but none by Bylinski. After Bylinski obtained constructive revocation of the building permit by following the steps set forth in §§ 7 and 8, GBI appealed to the Superior Court pursuant to § 17, naming Bylinski as a defendant. After GBI sought and failed to obtain a variance, GBI brought an appeal in the Land Court pursuant to § 17, and Bylinski intervened. See Guaranteed Bldrs., 85 Mass. App. Ct. 1101. Finally, after Bylinski obtained the demolition order by, again, following the steps set forth in §§ 7 and 8 of the act, GBI appealed to the District Court, naming Bylinski as a defendant. See Tusino, 90 Mass. App. Ct. at 89, 90-91.
Here, as may be understandable in the circumstances, Bylinski did not formally initiate a third zoning enforcement request after the board issued its demolition order. Instead, after Tusino failed to comply, Bylinski moved to reopen the previously dismissed Land Court case and sought relief there in the form of both mandamus and a direct injunction against Tusino. The question we now confront is whether the Land Court had jurisdiction to provide the direct injunctive relief against Tusino that it ultimately awarded.
The judge's decision states that the building commissioner "refuses to take any action" to compel Tusino to comply with the board's order. It is unclear, however, whether, when, or how Bylinski requested that he do so. In any event, there is no indication in the record that Bylinski brought any appeal to the board from any refusal of the commissioner to enforce the demolition order.
The Land Court's general subject matter jurisdiction extends to "[a]ll cases and matters cognizable under the general principles of equity jurisprudence where any right, title or interest in land is involved, including actions for specific performance of contracts." G. L. c. 185, § 1 (k ). There is, however, no private right of action to enforce zoning bylaws cognizable under general equity principles. See Nigro v. Jones, 332 Mass. 741, 743-744 (1955). See also Lincoln v. Board of Appeals of Framingham, 346 Mass. 418, 420 (1963) (zoning decision not reviewable under Superior Court's broad equity powers or power to issue declaratory judgment); Circle Lounge & Grille, Inc. v. Board of Appeal of Boston, 324 Mass. 427, 431 (1949) ("[a]n owner has no strictly private right in the enforcement of zoning regulations, unless some statute creates such right"); Hull v. Belmont, 309 Mass. 274, 281 (1941) (Supreme Judicial Court without jurisdiction under general equitable powers to consider suit seeking zoning relief where zoning statutes provided exclusive remedies).
Moreover, the act is crystalline in stating that an injunction requiring removal of a structure due to zoning noncompliance is available only in accordance with its terms. According to § 7, "[n]o action, suit or proceeding shall be maintained in a court, nor an administrative action or other action taken to ... compel the removal, alteration or relocation of a structure or part of a structure because of a violation of a zoning by-law or ordinance except in accordance with this section and sections 8 and 17." G. L. c. 40A, § 7, second par. This provision "means exactly what it says." Neuhaus v. Building Inspector of Marlborough, 11 Mass. App. Ct. 230, 235 (1981). Accordingly, since § 17 of the act is inapplicable, the Land Court's injunction against Tusino cannot stand unless it was authorized by §§ 7 or 8. Section 8 provides for administrative appeals from a zoning enforcement officer's failure to enforce a local bylaw; it supplies only a route to court-ordered injunctive relief via an appeal brought pursuant to § 17. See G. L. c. 40A, §§ 7, 8. Section 7 is, however, more relevant.
The above-quoted language appears in St. 2016, c. 184, § 1. For purposes of this case, there is no substantive difference in the quoted language as compared to the language found in the statute as adopted in 1975. The 1975 language, which remained in effect until 2016, is as follows:
"No action, suit or proceeding shall be maintained in any court, nor any administrative or other action taken to ... compel the removal, alteration or relocation of any structure or part of a structure or alteration of a structure by reason of any violation of any zoning by-law or ordinance except in accordance with the provisions of this section, section eight and section seventeen ...."
St. 1975, c. 808, § 3.
Additionally, the remedy provided in G. L. c. 40A, § 17, is "exclusive." G. L. c. 40A, § 17, second par. See Elder Care Servs., Inc. v. Zoning Bd. of Appeals of Hingham, 17 Mass. App. Ct. 480, 482 (1984).
Bylinski's case is not and cannot be construed as a § 17 appeal for a number of reasons. Section 17 sets forth detailed requirements for perfecting such an appeal, not the least of which is that the complainant must be aggrieved by a decision of the board or by the failure of the board to timely act. See G. L. c. 40A, § 17. Here, Bylinski previously prevailed at the administrative level and has not been aggrieved by any action or inaction of the board. See Green v. Board of Appeals of Provincetown, 404 Mass. 571, 572 (1989) (only person "aggrieved" by decision of board of appeals can bring appeal pursuant to § 17 ). See also Prudential Ins. Co. of Am. v. Board of Appeals of Westwood, 18 Mass. App. Ct. 632, 633-634 (1984) (proposed interveners who benefited from zoning board order were not aggrieved).
a. Delegation of the board's authority. Section 7 of the act provides that a municipality's building commissioner or inspector is "charged with the enforcement of the zoning ordinance or by-law," and, as noted above, that the Superior Court and Land Court have "jurisdiction to enforce the provisions of this chapter, and any ordinances or by-laws adopted thereunder, and may restrain by injunction violations thereof." G. L. c. 40A, § 7, first and fifth pars.
By operation of St. 2016, c. 184, which added text to § 7 that is not relevant here, the third and final paragraph of G. L. c. 40A, § 7, became the fifth and final paragraph of that statute.
Accordingly, a building commissioner can enforce a zoning bylaw by commencing a court action without first pursuing other remedies and without demonstrating "aggrieved person" status. See Commonwealth v. A. Graziano, Inc., 35 Mass. App. Ct. 69, 72-73 (1993) (zoning enforcement officer could directly enforce zoning bylaw by bringing criminal complaint in District Court without first pursuing administrative appeal); Commonwealth v. Porrazzo, 25 Mass. App. Ct. 169, 174 (1987) (holding District Court had jurisdiction over criminal prosecution for zoning violation, notwithstanding last paragraph of G. L. c. 40A, § 7 ). Moreover, under § 14 of the act, a board of appeals has "all the powers of the officer from whom the appeal is taken." G. L. c. 40A, § 14, second par. Thus, municipal officials can commence an action for an injunction to remedy zoning violations. See Burlington Sand & Gravel, Inc. v. Harvard, 31 Mass. App. Ct. 261, 265 (1991) ("city or town may enjoin" zoning violation by bringing action in Superior Court pursuant to G. L. c. 40A, § 7 ).
Here, in its demolition order, the board specifically invoked its powers under § 14 of the act, which, in turn, incorporated the building commissioner's powers under § 7. The board then went on to write, "This [o]rder may not be construed to require the [t]own to undertake such removal or demolition in the event that the [p]roperty [o]wner fails to do so. Nor may this [o]rder limit the [p]etitioner's rights to seek direct injunctive relief in the event that the [p]roperty [o]wner fails to comply with this [o]rder."
The demolition order states:
"Based upon all of the foregoing facts, the ZBA unanimously finds that the [b]uilding [c]ommissioner was in error by failing to grant the [p]etitioner's enforcement request. Accordingly, the [b]oard hereby unanimously orders and directs, pursuant to its powers under G. L. c. 40A, § 14, that the [p]roperty [o]wner remove or demolish the house on the [p]roperty. In accordance with this [o]rder, the [p]roperty [o]wner shall, within thirty ... days that this [o]rder is served upon him, via mail, file for appropriate permits for the removal and/or demolition of the [h]ouse; and shall complete such demolition and removal within 120 days from the date that this [o]rder is so served" (emphasis omitted).
Relying on this language, the Land Court judge wrote that Bylinski had standing to seek enforcement of the board's demolition order "because the [board] stated in its decision that it was delegating enforcement authority to Bylinski as the [p]etitioner." Implicit in this statement is that the enforcement authority being delegated was that set forth in § 7 of the act, conferred upon the board pursuant to § 14. See G. L. c. 40A, §§ 7, 14. In other words, the judge was of the view that the board had delegated to Bylinski its power to directly enforce the zoning bylaw by seeking an injunction under §§ 7 and 14.
The judge went on to consider whether Bylinski was aggrieved by Tusino's zoning violation. Tusino contends on appeal that Bylinski is not aggrieved. Because § 7 of the act does not require that the plaintiff be aggrieved, however, see A. Graziano, 35 Mass. App. Ct. at 72, we need not consider the question. We note, further, that the record before us does not reveal whether Tusino challenged Bylinski's aggrieved person status in any of the three § 17 appeals he or GBI previously filed in connection with the property.
We need not consider whether a board of appeals is empowered by the act to delegate its enforcement power to a private citizen because we do not agree that the quoted language can be construed as a delegation of authority. The board wrote only that its order would not "limit the [p]etitioner's rights to seek direct injunctive relief in the event that the [p]roperty [o]wner fails to comply."
The judge was of the view that this question was foreclosed because the board's order was upheld by judgment of the Uxbridge District Court, which judgment became final when Tusino's appeal was dismissed. See Tusino, 90 Mass. App. Ct. at 92. We disagree, since neither the District Court nor this court had any occasion in that case to consider whether the demolition order was effective to confer the board's enforcement power on Bylinski. See Jarosz v. Palmer, 436 Mass. 526, 530-531 (2002) (issue preclusion applies only where issue was "actually litigated").
This language may have been entirely unnecessary, since it is difficult to see how the board's order could have limited Bylinski's rights to pursue his own remedies in any event. Nonetheless, we cannot construe it as an attempt by the board to delegate its own authority to Bylinski. At most, whether of any actual effect or not, this language is directed to preserving whatever rights Bylinski may have had to pursue further enforcement of the bylaw in the event that Tusino and GBI failed to obey the board's order.
The Land Court judge indicated in his decision that the board's apparent desire to see Bylinski take the lead on enforcement was fiscally motivated. "In short," the judge wrote, "the [t]own feels that it has bigger fish to fry and that their litigation budget is better used to pursue other cases, but will not stand in Bylinski's way."
b. Private enforcement. Bylinski does not argue, nor did the Land Court judge indicate, that a private citizen can seek an injunction against a party in violation of a zoning bylaw by bringing a direct action pursuant to § 7 of the act (i.e., without pursuing the remedies provided in §§ 8 and 17 ). In an effort to affirm the judge's decision if a basis is available, see Commonwealth v. Va Meng Joe, 425 Mass. 99, 102 (1997), we consider the question. Unfortunately for Bylinski, however, we find no support in the language of the statute or existing precedent for this proposition. See Burlington Sand, 31 Mass. App. Ct at 265, quoting New England Power Co. v. Selectmen of Amesbury, 389 Mass. 69, 74-75 (1983) ("We do not imply language in a statute if the Legislature has not provided it").
"Under Massachusetts law, abutters or neighboring property owners do not have a private cause of action for direct enforcement of zoning regulations." Morganelli v. Building Inspector of Canton, 7 Mass. App. Ct. 475, 481 (1979). Pursuant to § 7 of the act, "[t]he responsibility for enforcing zoning ordinances or by-laws lies with the municipality and is assigned by statute to the building inspector or other specified municipal officers." Morganelli, supra.
"Except for rights specifically granted by statute [i.e., under § 17 ], citizens and abutters only have the right to call upon the appropriate municipal officials to require enforcement of the zoning laws, and unless the officials decline or refuse to act, thereby creating a controversy between the officials and the citizen, the latter cannot bring an action." Id. at 481-482, 485 & n.16. See Neuhaus, 11 Mass. App. Ct. at 235 (referring to situations where "a building inspector or other enforcement officer is ultimately ordered to pursue the administrative or judicial remedies available under § 7").
Prior to the act's adoption in 1975, under the Commonwealth's preexisting zoning statute, a citizen could only invoke "the public right to have the ‘municipality enforce the applicable law'" through an action in the nature of mandamus. Morganelli, 7 Mass. App. Ct. at 482, quoting Brady v. Board of Appeals of Westport, 348 Mass. 515, 518-519 (1965). With the legislative overhaul of the Commonwealth's zoning law in 1975, the preexisting right to mandamus relief was codified as an aggrieved person's right to take an appeal pursuant to G. L. c. 40A, §§ 8 and 17. See Green, 404 Mass. at 572-573 ("following the adoption of the Zoning Act in 1975 [St. 1975, c. 808, § 3], [the mandamus] right must be exercised within the administrative structure and right of subsequent judicial review prescribed by G. L. c. 40A"). See also Vokes, 18 Mass. App. Ct. at 482-483.
We note that in Castelli v. Board of Selectmen of Seekonk, 15 Mass. App. Ct. 711 (1983), this court affirmed a judgment vacating a stop work order in a case brought by the private citizens whose project was affected by the order -- but only because the action was not one to enforce the local bylaw. See Id. at 716. In that case, the chairman of the Seekonk board of selectmen had (through a third party) influenced the building inspector to sign the order, stopping renovations that had previously been permitted. Id. at 712-713. Without appealing pursuant to § 8 of the act, the plaintiffs brought an action directly in Superior Court seeking revocation of the order and injunctive relief against the inspector. Id. at 713. We held that the matter fell within the Superior Court's jurisdiction pursuant to § 7 because "[i]t does not appear to have been [a] judicial enforcement action of a type specifically forbidden by the second sentence of the second paragraph of [that statute]." Id. at 716. We went on, however, to reverse the Superior Court judge's decision insofar as it included an affirmative order stating that the renovations could proceed because that part of the decision "could interfere with proper enforcement action which, under the 1975 revised G. L. c. 40A, ought to be passed upon at the local administrative level before resort to a court." Id. at 716.
Accordingly, the reasoning set forth in Castelli, supra, only supports our view that a private citizen has no standing to directly seek an injunction to enforce a local zoning bylaw pursuant to § 7. Instead, the administrative process outlined in §§ 7, 8, and 17 must be followed. Because this action was not brought pursuant to any provision of the act, the judgment ordering injunctive relief against Tusino must be reversed.
3. Additional relief. As stated above, judgment has never entered on Bylinski's claim for mandamus relief against the building commissioner. We shall therefore remand the case for further action in relation to that aspect of his claim. We note, however, that mandamus relief may be had only where "all available administrative remedies have been exhausted," Hingham v. Department of Hous. and Community Dev., 451 Mass. 501, 505 (2008), and we have already explained that, unless a time bar applies, it is open to Bylinski to initiate a new enforcement action seeking to enforce the town's demolition order pursuant to G. L. c. 40A, §§ 7, 8, and 17. Alternatively, Bylinski may seek to revive the District Court action wherein the board's demolition order was affirmed, see Tusino, 90 Mass. App. Ct. at 92, and pursue relief in that action. Bylinski, who was named a defendant in the § 17 appeal brought by Tusino, has standing to seek enforcement of the order from that court under its power pursuant to § 17 to "make such other decree as justice and equity may require." G. L. c. 40A, § 17, second par.
Mandamus is an extraordinary remedy, "and may not be granted except to prevent a failure of justice in instances where there is no other adequate remedy." Lutheran Serv. Ass'n of New England v. Metropolitan Dist. Comm'n, 397 Mass. 341, 344 (1986).
Conclusion. The judgment is vacated and the matter is remanded to the Land Court for final adjudication of Bylinski's separate claim for mandamus relief. After resolution of the mandamus claim, the final judgment shall include dismissal of Bylinski's claim for direct injunctive relief against Tusino and GBI, without prejudice to Bylinski's right to seek revival of the District Court action wherein the board's demolition order was affirmed, see Tusino, 90 Mass. App. Ct. at 92, and to seek relief in that action; and without prejudice to Bylinski's right to pursue the same relief in a new action brought under G. L. c. 40A, § 17.
So ordered.
Vacated and remanded.