ELR Citation: ELR 20001
No(s). 84-1103 (1st Cir. Jul 17, 1984)

In a §1983 suit by developers for damages from delay in obtaining a building permit due to alleged discriminatory action by the defendant building inspector, the court holds that plaintiffs' procedural due process rights were not violated either by the lack of appellate administrative review for three months or by the lack of a formal hearing. After their permit application was denied by defendant for failure to comply with an emergency egress provision of the Massachusetts building code, plaintiffs were left without an administrative appeal route for three months because of a lag in the transfer of these appellate duties from a state agency that had been abolished by the legislature. The court holds, however, that plaintiffs' procedural due process rights were not violated during this period because the Massachusetts state courts were available to redress any errors through an action in the nature of a writ of certiorari. The court holds that the three elements necessary for the availability of certiorari in Massachusetts were present. First, defendant was acting in a quasi-judicial capacity because he was required to exercise some discretion in applying the building code. Second, there were no other reasonably adequate remedies.Third, plaintiffs sustained a substantial injury from denial of the permit. Finally, the court holds that although plaintiffs did not have a formal hearing before the building inspector, the procedures used, including a prompt written notice of the reasons for denial and opportunity for plaintiffs to submit materials to defendant, were sufficient to satisfy the flexible due process requirements.

Counsel for Appellants
John S. Legasey
Ardiff, Ardiff & Morse
32 Maple St., Danvers MA 01923-0059
(617) 774-7121

Counsel for Appellees
Paul L. Kenny
Town Hall, Danvers MA 01923
(617) 777-0001

Coffin, J., before Bownes and Pettine,^* JJ.