Belfer v. Building Com'r of Boston

• Decision Date: 04 April 1973
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Arthur B. BELFER & others v. BUILDING COMMISSIONER OF BOSTON.

Page 857

294 N.E.2d 857

363 Mass. 439

Arthur B. BELFER & others v. BUILDING COMMISSIONER OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 8, 1973.

Decided April 4, 1973.

Peter Van. Robert F. Sylvia and Frederick F. Schauer, Boston, on brief for plaintiffs.

Before TAURO, C.J., and REARDON, QUIRICO, HENNESSEY and KAPLAN, JJ.

HENNESSEY, Justice.

This is a bill for declaratory relief pursuant to G.L. c. 231A brought in the county court. A single justice of this court reserved and reported the matter without decision to the full court. The plaintiffs are the general partners of Devonshire Associates, a Massachusetts limited partnership. By direction of the single justice, Paul R. Devin, Domenic DeLuca and Fidelity Management & Research Company, plaintiffs in a separate but related action pending in the Superior Court, were ordered to file appearances as interveners.

We summarize the facts as agreed by the parties. On March 10, 1970, the plaintiffs acquired title to certain premises located at 228--256 Washington Street, Boston (the locus). Prior to this, on March 21, 1969, Carol Management Company (Carol) filed an application for a building permit relative to the locus, with the knowledge and approval of the plaintiffs' predecessor in title to the locus. The application requested permission to erect a thirty-three story bilding. On March 24 1969, the defendant denied the application for a building permit on the grounds that the building which Carol proposed to erect violated the provisions of the Boston Zoning Code for a business district in respect to floor area ratio, parapet setback, and off-street loading facilities.

Carol filed an appeal with the board of appeal of the city of Boston seeking variances from those sections of the zoning code which the proposed building would violate. On September 22, 1970, the board of appeal granted the variances and filed its decision in the office of the defendant on September 29, 1970. Various persons claiming to be aggrieved by the granting of the variances filed an appeal under St. 1956, c. 665, § 11, in the Superior Court sitting in Suffolk County. This zoning appeal remains pending in the Superior Court. The appellants in the zoning appeal are the interveners in the instant case, These interveners and the plaintiffs in the instant suit entered into a contract which provides for the dismissal of the zoning appeal upon the happening of certain contingencies.

On September 22, 1972, the plaintiffs wrote to the defendant asking whether he would issue a building permit consistent with the variances granted if the application for the permit was made concurrently with the dismissal of the zoning appeal, but subsequent to September 28, 1972. The defendant replied on September 26, 1972, that he would not issue a building permit consistent with the variances granted, on the ground that the variances granted by the board of appeal would lapse and become null and void subsequent to September 28, 1972, pursuant to § 7--1 of the Boston Zoning Code. ¹

Section 7--1 of the Boston Zoning Code was enacted pursuant to St.1956, c. 665, which in its main features corresponds to G.L. c. 40A but applies to the city of Boston only. Section 7--1, as set out in the margin, ² provides in substance that variances from zoning regulations granted by the board of appeal expire if not used within two years of the date the variance is filed in the office of the building commissioner. Since the decision granting the variances in the instant case was filed on September 29, 1970, the defendant would not issue a building permit after September 28, 1972. Consequently, the plaintiffs brought this bill for declaratory relief, asking that the court declare that the filing of the appeal in the Superior Court from the granting of the variances by the board acted to stay the two year time limitation of § 7--1 of the Boston Zoning Code.

1. That there is an actual controversy, as required by G.L. c. 231A, § 1, is clear. The plaintiffs claim they have a right to a building permit despite the lapse of two years. The defendant denies this and has expressed his intention not to grant a permit subsequent to the two year limitation. It is not necessary actually to apply for and be denied a permit, as long as the granting authority has unequivocally stated that he will refuse to grant a permit. See School Comm. of Cambridge v. Superintendent of Schs. of Cambridge, 320 Mass. 516, 518, 70 N.E.2d 298; New Bedford v. New Bedford, Woods Hole, Martha's Vineyard & Nantucket S. S. Authy., 329 Mass. 243, 247, 107 N.E.2d 513. It is true that declaratory relief in this case will not terminate the dispute over the validity of the variances, but it will terminate the uncertainty of whether a building permit will issue if the variances are adjudged valid in the suit involving them. Under his present position, the defendant will not issue a permit even if the variances are held to be valid. See Travelers Ins. Co. v. Graye, 358 Mass. 238, 240, 263 N.E.2d 442.

2. As to the merits, the plaintiffs argue that since the zoning variances, as a practical matter, could not be used during the pendency of the appeal from the granting of the variances, the appeal tolled the running of the two year period during which the variances had to be used. Though the plaintiffs have brought no Massachusetts case in point to our attention, they cite Tantimonaco v. Zoning Bd. of Review of Johnston, 102 R.I. 594, 599--600, 232 A.2d 385, as supportive of their position. In that case, the court held that where the validity of a building permit was the subject of litigation, the local zoning ordinance providing for the expiration of a permit if not acted upon within six months was stayed during the litigation. The court relied on the common sense practical consideration that the holder of a permit under attack would be more reluctant to incur obligations in using the permit than he otherwise would be.

The plaintiffs also argue that, by analogy, the case of Woods v. Newton, 351 Mass. 98, 103--104, 217 N.E.2d 728, supports their contention. In that case, a building permit had expired, the board of aldermen gave no further extension and an injunction preventing construction on the locus was in effect during litigation. We held that the board could extend the permit since it was not unreasonable to allow an extension without a further public hearing and since the delay caused by litigation and an injunction should not prejudice parties who, as it turned out, had valid permits. This result, however, turned on the interpretation of an ordinance expressly granting the city of Newton the right to extend the period of time for exercising rights under a building permit, and hence, while helpful, is clearly distinguishable from the instant case. Moreover, in the Woods case, the holder of the permit was legally unable to use it because of the outstanding...