Bellows Farms, Inc. v. Building Inspector of Acton

• Decision Date: 07 November 1973
• Parties: BELLOWS FARMS, INC., et al. v. BUILDING INSPECTOR OF ACTON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 728

303 N.E.2d 728

364 Mass. 253

BELLOWS FARMS, INC., et al. v. BUILDING INSPECTOR OF ACTON et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 4, 1973.

Decided Nov. 7, 1973.

Charles G. Kadison, Jr., Boston (Louis N. Levine, Acton, with him), for plaintiffs.

Acheson H. Callaghan, Jr., Boston (Reginald H. Howe, Boston, with him), for defendants.

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

QUIRICO, Justice.

This is a bill in equity under G.L. c. 231A, seeking a declaration whether certain amendments to the zoning by-law of the town of Acton (town) apply to a parcel of land (locus) owned by the plaintiffs Bellows Farms, Inc. and John E. Murphy and on which the plaintiff Donald P. O'Grady has contracted to build 402 apartment units. The defendants are the town, its building inspector and the members of its board of selectmen.

The case was submitted to a single justice of this court for entry of a final decree on the basis of a statement of agreed facts constituting a case stated and it is now before us on the plaintiffs' appeal from that final decree.

On March 5, 1970, the plaintiffs submitted a plan of the locus to the town's planning board for the board's indorsement on the plan that 'approval under the subdivision control law is not required.' General Laws c. 41, § 81P, inserted by St.1953, c. 674, § 7, as amended through St.1963, c. 363, § 1, authorizes such an indorsement on a plan which does not show a 'subdivision' as defined in G.L. c. 41, § 81L. The plan did not show such a subdivision. ¹ The plaintiffs then seasonably notified the town clerk in writing, in the manner required by G.L. c. 41, § 81T, inserted by St.1953, c. 674, § 7, as amended through St.1963, c. 363, § 2, that they had submitted the plan to the planning board. On March 10, 1970, the planning board indorsed the plan in the manner requested by the plaintiffs.

At all times material to this case the town's zoning by-law has classified the locus as within a general business district. At all times prior to March, 1971, the by-law expressly permitted land in such a district to be used, as a matter of right and not merely by special permit, for the purpose of apartments among other uses not here material.

More particularly, under the zoning by-law in effect on March 5, 1970, the plaintiffs were entitled to building permits for the erection of a maximum of 435 apartment units on the locus. They intended then and still intend to build a total of 402 such units on the locus, and they have obtained permits to build thirty such units which are now under construction. They are ready to apply, and intend to apply, for a permit to construct the additional 372 apartment units on the locus; this proposed construction would comply with all of the requirements of the zoning by-law in effect on March 5, 1970.

However, at its annual town meeting in March, 1970, held after the filing of the plaintiffs' plan with the planning board on March 5, 1970, the town adopted amendments relating (a) to off street parking and loading requirements, and (b) to the 'Intensity Regulation Schedule' applicable to multiple dwelling units. In 1971 the town adopted amendments to make the use of premises for multiple dwellings subject to a provision requiring prior approval of the 'site plan' by the board of selectmen. ² If these amendments are applicable to the locus, they would materially limit and otherwise affect the plaintiffs' intended construction of the 402 apartment units by reducing the number of such units permitted to be built on the locus to 203, assuming each unit had two bedrooms.

The plaintiffs contend that the 1970 and 1971 amendments to the zoning by-law are not applicable to the locus with respect to their planned construction of apartment units and they base their contention on the second paragraph of G.L. c. 40A, § 7A, inserted by St.1957, c. 297, as amended through St.1963, c. 578. (A later amendment by St.1965, c. 65, made no change in the second paragraph of § 7A.) The pertinent language of that paragraph is the following: 'When a plan referred to in . . . (G.L. c. 41, § 81P, viz., a plan which does not show a subdivision and must therefore be indorsed by the planning board with the legend 'approval under the subdivision control law is not required') has been submitted to a planning board and written notice of such submission has been given to the city or town clerk, the use of the land shown on such plan shall be governed by applicable provisions of the zoning ordinance or by-law in effect at the time of the submission of such plan . . . for a period of three years from the date of endorsement by the planning board that approval under the subdivision control law is not required . . . provided that a city or town may . . . increase the number of permitted uses of any land shown on such a plan' (emphasis supplied). The plaintiffs argue that the effect of this paragraph is that for the period of three years from March 10, 1970, when the planning board indorsed on the plaintiffs' plan the legend that it did not require approval under the subdivision control law, the locus was governed for all purposes by the provisions of the zoning by-law in effect on March 5, 1970, when the plan was submitted to the board.

The defendants, on the other hand, contend that both the 1970 and the 1971 amendments to the zoning by-law are applicable to the plaintiffs' planned construction of additional apartment units on the locus. They argue that the statutory protection given to the plaintiffs under § 7A is limited to the 'use of the land' for the purposes permitted on March 5, 1970, and that it does not include protection against any other changes in the by-law. The defendants concede that by virtue of § 7A the plaintiffs may continue to use the locus for apartment units for three years from March 10, 1970, but they argue the 1970 and 1971 amendments to the by-law control as to the intensity of the use and as to the new requirement for site plan approval.

Upon consideration of the history and language of § 7A and of related statutes we hold that the defendants' contention is correct and that the plaintiffs' locus is subject to the 1970 and 1971 amendments to the zoning by-law.

1. When G.L. c. 40A, § 7A, was first enacted by St.1957, c. 297, it provided that '(n)otwithstanding any other provision of law, no amendment to any zoning ordinance or by-law shall apply to or affect any lot shown on a definitive subdivision plan for residences which has been previously approved by a planning board until a period of three years from the date of such approval has elapsed . . ..' Section 7A was amended by St.1959, c. 221, by the addition of a provision that the land shown on a preliminary subdivision plan 'shall be governed by the zoning ordinance or by-law in effect at the time of the submission of the preliminary plan . . .; provided, that the definitive plan is duly submitted within seven months from the date on which the preliminary plan was submitted and is thereafter duly approved . . ..' Thus neither the original nor the amended version of § 7A had any application to plans not requiring approval under the subdivision control law.

2. Section 7A first became applicable to plans not requiring planning board approval when it was amended by St.1960, c. 291, which added to it a sentence providing in part as follows: 'No amendment to any zoning ordinance or by-law shall apply to or affect any lot shown on a plan previously endorsed with the words 'approval under the subdivision control law not required' or words of similar import, pursuant to . . . (G.L. c. 41, § 81P), until a period of three years from the date of such endorsement has elapsed . . ..'

3. Section 7A was further amended by St.1961, c. 435, § 2, by (a) making certain revisions in the first paragraph dealing with plans requiring planning board approval and (b) eliminating entirely the sentence which had been added by St.1960, c. 291, relating to plans not requiring planning board approval.

Statute 1961, c. 435, § 1, simultaneously amended G.L. c. 40A, § 5A, by extending to owners of certain lots shown on plans indorsed 'approval under the subdivision control law not required' the right to use such lots for residential purposes for five years after indorsement, notwithstanding the adoption or amendment of provisions of a zoning ordinance or by-law imposing minimum area, frontage, width, depth or yard requirements in a residential district. Section 5A as previously inserted by St.1958, c. 492, had given substantially the same right, without limit as to time, but limited to owners of certain lots 'laid out by plan or deed duly recorded or registered in the appropriate registry of deeds or land registry district,' and without express reference to or inclusion of land shown on plans not requiring planning board approval.

4. In 1963 the Legislature, by St.1963 c. 578, restored to § 7A the provision dealing with land shown on plans not requiring planning board approval but with certain changes in language. The previous version, inserted by St.1960, c. 291, had provided: 'No amendment to any zoning ordinance or by-law shall apply to or affect any lot shown on a plan . . . (not requiring planning board approval for a period of three years) . . .' (emphasis supplied). The present version as restored in 1963 provides: '(T)he use of the land shown on such plan shall be governed by applicable provisions of the zoning ordinance or by-law in effect at the time of the submission of such plan . . . for a period of three years . . .' (emphasis supplied).

The difference between the earlier (1960) and the later (1963) versions of this part of § 7A is obvious and significant. This is not a case of using different language to convey the same meaning. The use of the different language in the current statute indicates a legislative intent to grant a more limited survival of pre-amendme...