Building Inspector of Acton v. Board of Appeals of Acton

• Decision Date: 04 February 1965
• Citation: 204 N.E.2d 296,348 Mass. 453
• Parties: BUILDING INSPECTOR OF ACTON et al. v. BOARD OF APPEALS OF ACTION et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 296

204 N.E.2d 296

348 Mass. 453

BUILDING INSPECTOR OF ACTON et al. v. BOARD OF APPEALS OF ACTION et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Jan. 8, 1965.

Decided Feb. 4, 1965.

Leonard E. Rae, West Concord, for interveners.

Julian J. D'Agostine and John W. Lynch, West Acton, for plaintiffs.

Before SPALDING, WHITTEMORE, CUTTER, and SPIEGEL, JJ.

CUTTER, Justice.

In 1955, members of a family named Sweeney who owned a large farm in Acton filed with the planning board of Acton a subdivision plan which was approved by the board. In 1957 a 'substantial revision' of the original plan (adding one street and covering four additional acres) was filed. The planning board approved this plan on September 23, 1957. The approval was indorsed on the revised plan and the plan was recorded in the registry of deeds. No public hearing concerning the revised plan was held by the planning board. Prior to its approval no notice of its filing was given to any abutting owner, or filed with the town clerk. ¹

On September 9, 1962, Daniel Sweeney, as owner of lots 302 to 305 shown on the subdivision plan applied to the building inspector for a permit to build a two family house on each lot. Under the zoning by-law of the town, adopted on December 20, 1960, two family houses were not permitted in the area in which lay lots 302 to 305, except with the approval of the board of appeals by special permit. In 1957, when the revised subdivision plan was approved by the planning board two family houses were permitted in the area. The building inspector referred the applications to the board of selectmen, the agency charged by the zoning by-law with its enforcement. The selectmen voted on September 27, 1962, to issue the permits. The building inspector then issued the permits.

An appeal to the town's board of appeals was taken on October 17, 1962, and supplemented on October 23, 1962, from the selectmen's decision relating to the issuance of the building permits for lots 302 to 305. ² After public hearing the board of appeals concluded that the selectmen's decision was erroneous and ordered the decision rescinded, in effect thus cancelling the permits.

The present proceeding was initiated by Paul J. Sweeney, Inc., Daniel Sweeney, Beatrice Sweeney, and the building inspector against the board of appeals. The bill seeks to have the board's decision annulled and a decree entered authorizing completion of two family dwellings on lots 302 to 305. The trial judge, upon a stipulation as to certain evidence and after hearing certain other evidence, made findings. He ordered that a decree be entered annulling the board's decision and reinstating the permits. An appeal from the final decree was claimed by certain persons who had appealed to the board of appeals and had been allowed to intervene in the proceedings in the Superior Court.

1. The trial judge correctly stated that the 'real issue * * * is whether * * * the plan * * * approved by the [p]lanning [b]oard on September 23, 1957, showing these lots at a time when the [z]oning [b]y-law * * * permitted two-family dwellings, gives the Sweeneys a right as * * * matter of law to obtain permits to build * * * two-family houses * * * as applied for on September 9, 1962, just short of five years after the [planning board's] approval of the plan.' The judge ruled that the plan was a definitive plan under the Subdivision Control Law (G.L. c. 41, §§ 82K-81GG) and was governed by G.L. c. 40A, § 7A (as amended through St.1961, c. 435, § 2), which had become effective August 3, 1961. ³ Under § 7A as it existed in 1957 (and even as amended in 1959 and 1960, see fn. 3) the 1960 amendments of the zoning by-law could not be applied to lots 302 to 305 for three years after the planning board's approval. This three year period thus expired on September 23, 1960. Upon that date the 1960 by-law amendments became applicable to those lots. The substantive rights of the owners of those lots and of owners of land in the area would have been affected if St.1961, c. 435, § 2 (when it became effective nearly a year later), had reinstated retroactively the inapplicability of the 1960 by-law amendments to the lots. At least in the absence of very clear statutory language, we do not apply legislation retroactively in such a manner as to affect substantive rights. See Campbell v. City of Boston, 290 Mass. 427, 429, 195 N.E. 802; Brucato v. City of Lawrence, 338 Mass. 612, 617, 159 N.E.2d 676; State Tax Comm. v. Fitts, 340 Mass. 575, 578, 165 N.E.2d 586; Doliner v. Planning Bd. of Millis 343 Mass. 1, 8, fn. 4, 175 N.E.2d 919; Old Colony Trust Co. v. Commissioner of Corps. & Taxn., 343 Mass. 613, 619-620, 180 N.E.2d 97. Cf. Lindberg v. State Tax Comm., 335 Mass. 141, 143-144, 138 N.E.2d 753 (State legislation applied retroactively where it adversely affected only the State's own rights). The 1960 by-law amendments governed and restricted the use of lots 302 to 305 in 1962 (when applications for the permits were made) and the permits were improperly granted. ⁴

2. The plaintiffs argues that the board of appeals did not have jurisdiction. The appeal, in form from the decision of the board of selectment, in substance sufficiently raised the issue of the propriety of the permits. The decision of the board of selectmen seems to have been based on advice of the town counsel to them that the permits should issue because the 1960 by-law amendments did not apply to lots 302 to 305, in view of the 1961 amendment of § 7A (see fn. 3). Those who appealed to the board included persons living in single family dwellings on the same or the opposite side of the street on which lots 302 to 305 lie and owners of land abutting on, or near, one or more of those lots. Others who appealed live in the same subdivision. In the circumstances, all of such persons may properly be regarded as aggrieved. Marotta v. Board of Appeals of Revere, 336 Mass. 199, 202-205, 143 N.E.2d 270. The appeal appropriately brought in issue the granting of the permits. ⁵

3. The final decree is reversed. A new final decree is to be entered stating that the decision of the board of appeals did not exceed its authority and that no modification of its decision is required.

So...