Falcone v. Zoning Bd. of Appeals of Brockton

• Decision Date: 05 June 1979
• Citation: 389 N.E.2d 1032,7 Mass.App.Ct. 710
• Parties: Louis T. FALCONE v. ZONING BOARD OF APPEALS OF BROCKTON.
• Court: Appeals Court of Massachusetts

Page 1032

389 N.E.2d 1032

7 Mass.App.Ct. 710

Louis T. FALCONE v. ZONING BOARD OF APPEALS OF BROCKTON.

Appeals Court of Massachusetts, Plymouth.

Argued April 10, 1979.

Decided June 5, 1979.

Ronald G. Marshall, Brockton, for plaintiff.

Ira L. Lipman, City Solicitor, for defendant.

Before HALE, C. J., and ARMSTRONG and DREBEN, JJ.

HALE, Chief Justice.

The plaintiff, owner of approximately 9.91 acres of land in the city of Brockton, appeals from a Superior Court judgment which upheld the decision of the zoning board of appeals (board) denying the plaintiff's application for a building permit. The case was submitted to the judge on an "Agreed Statement of All Relevant Facts." On March 30, 1973, the plaintiff applied for endorsement of a plan believed not to require approval under the Subdivision Control Law, G.L. c. 41, § 81P. Notice of submission of the plan was given to the city clerk. The plan was so endorsed on April 13, 1973. Subsequently, on November 24, 1975, the city enacted an ordinance establishing flood plain, watershed and wetlands zones (flood plain ordinance), whereby a portion of the plaintiff's property came within a "Major Importance" sub-district.

On April 12, 1976, the plaintiff, making no attempt to comply with the flood plain ordinance, applied for a permit to build thirty-five multi-family apartment buildings containing 210 units, seventy-eight of which would lie in the "Major Importance" sub-district. On May 14, 1976, the application was denied on the ground that the plaintiff had failed to comply with the requirements of the flood plain ordinance. ¹ The plaintiff appealed to the board, arguing that the flood plain ordinance was inapplicable to him because of G.L. c. 40A, § 6 (as appearing in St.1975, c. 808, § 3). ² The board affirmed the denial on the basis that the protection period of § 6 had expired by the time the application was denied. It further stated that, even if the permit application had been timely, § 6 would not have exempted the plaintiff from the requirements of the flood plain ordinance.

Section 6 provides for a protection or zoning freeze period of three years, running from the date of endorsement of a plan referred to in G.L. c. 41, § 81P. During this period, the use of the land shown on such a plan is governed by the applicable provisions of zoning ordinances or by-laws in effect at the time the plan was submitted. The judge agreed with the board and concluded that the three-year protection period continued to run until such time as the building permit application was denied. Judgment was entered stating "(t)he (d)ecision of the (b)oard of (a)ppeals did not exceed its authority and no modification of it is required." We affirm.

It is clear that the zoning freeze period provided for in § 6 is designed to protect a developer during the planning stage of a building project. McCarthy v. Board of Appeals of Ashland, 354 Mass. 660, 663, 241 N.E.2d 840 (1968); Nyquist v. Board of Appeals of Acton, 359 Mass. 462, 465, 269 N.E.2d 654 (1971). What the developer or landowner must do to avail himself of this protection is less clear. The statute gives him a period of three years within which he "may proceed." Smith v. Board of Appeals of Needham, 339 Mass. 399, 402, 159 N.E.2d 324 (1959); Nyquist v. Board of Appeals of Acton, supra. The plaintiff contends that he is required to do no more than apply for a building permit within the three-year period in order to assure that his application will be considered in accordance with the zoning ordinances in effect at the time he submitted his plans. In resolving this issue, we are faced with apparently conflicting dicta which are found in Cape Ann Land Dev. Corp. v. Gloucester, 371 Mass. --- ^A, 353 N.E.2d 645 (1976), and Green v. Board of Appeal of Norwood, 2 Mass.App. 393, 313 N.E.2d 451 (1974). In Green the plaintiff had applied for a building permit approximately fourteen months before the statutory protection period then in effect expired. ³ Approximately two and a half years later, the protection period having expired, the application was denied. We held that the protection afforded by the statute could not be lost through a local official's inaction. "What a town cannot accomplish with regard to subdivision plans by disapproval, it should not be allowed to achieve by inaction in the case of permit applications . . . ." Id. at 396, 313 N.E.2d at 454. In addition, we stated, by way of dictum, that "the period of protection provided for in § 7A (extends) to building permit applications filed, but not approved, before the expiration of the period of protection provided therein." Id. at 396-397, 313 N.E.2d at 454.

Cape Ann, decided two years later, neither expressly rejects nor confirms the holding of Green but leaves the issue for another day. We first note that the building permit in Cape Ann had been applied for, denied, and the denial appealed from, all within the protection period. It was by way of dictum, then, that the court stated that "(t)he running of the three-year period . . . was suspended when the city declined to issue the building permit . . . ." 371 Mass. at --- n.5 ^B, 353 N.E.2d at 647. The court left open "the possibility that, in particular circumstances (such as where the denial is unreasonably delayed), the running of the statutory period may be suspended at a date earlier than the date on which a building permit is denied." Id. To the extent the dictum of Green is to the contrary, we shall not follow it, but shall adhere to the Cape Ann position that mere filing of a permit application does not toll the running of the protection period. See also M. DeMatteo Constr. Co. v. Board of Appeals of Hingham, 3 Mass.App. 446, 458, 334 N.E.2d 51 (1975) (zoning freeze suspended when plaintiff ordered to cease its operations); McCaffrey v. Board of Appeals of Ipswich, 4 Mass.App. 109, --- n.1, 343 N.E.2d 154 (1976) (period extended from date of refusal of permit application to the termination of litigation). ⁴

Where, as here, a landowner does not apply for a permit until the last day before the protection period expires, thereby making it impossible to secure the approvals necessary for the issuance of a permit before the expiration date, he finds himself in a position similar to that in which applicants before him found themselves. Spector v. Building Inspector of Milton, 250 Mass. 63, 71, 145 N.E. 265 (1924); Caputo v. Board of Appeals of Somerville, 330 Mass. 107, 111, 111 N.E.2d...