Green v. Board of Appeal of Norwood

Decision Date28 June 1974
Citation313 N.E.2d 451,2 Mass.App.Ct. 393
PartiesRobert GREEN et al. .v BOARD OF APPEAL OF NORWOOD.
CourtAppeals Court of Massachusetts

Justin C. Barton, Town Counsel, Norwood, for the Board of Appeal of norwood.

Gordon P. Ramsey (Peter A. Ambrosini, Boston, with him), for plaintiffs.

ROSE, Justice.

This is an appeal from a final decree of the Superior Court which annulled a decision of the board of appeal of Norwood and ordered the board to issue a building permit to the plaintiffs. The original decision of the board had affirmed the denial of a permit by the Norwood building inspector. The case is before us on findings, rulings, and an order for decree entered by the judge, accompanied by a full report of the evidence; all questions of law, fact, and discretion are therefore open for our decision. Gordon v. O'Brien, 320 Mass. 739, 740, 71 N.E.2d 221 (1947).

The judge made findings of fact as follows. The plaintiffs own a parcel of land in Norwood for which they filed a subdivision plan in 1964. The plan was approved by the Norwood planning board on March 29, 1965. In 1968, the Norwood building inspector issued permits for the construction of two multi-family dwelling units (Buildings Nos. 2 and 3) on the plaintiffs' land, but those permits were revoked by the board of appeal. The board of appeal's decision was subsequently annulled by the Supreme Judicial Court. See Green v. Board of Appeal of Norwood, 358 Mass. 253, 263 N.E.2d 423 (1970). In January of 1969, while their applications for Buildings Nos. 2 and 3 were in litigation, the plaintiffs applied for a permit to build a third dwelling unit on the property (Building No. 1). There was no immediate decision by the building inspector concerning the latter application. 1

On March 5, 1971, at the building inspector's request, the plaintiffs modified their plans for Building No. 1 to conform to changes in the Norwood building code and filed a revised application. This application was denied on March 15. On May 26, the plaintiffs requested that the building inspector act on their 1969 application. That application was formally denied on June 7, and an appeal from the denial was taken.

1. The board argues first that the judge was 'plainly wrong' in finding that the plaintiffs filed a permit application for Building No. 1 in 1969. See, in this regard, Berman v. Coakley, 257 Mass. 159, 162, 153 N.E. 463 (1926); Murphy v. Hanlon, 322 Mass. 683, 685, 79 N.E.2d 292 (1948). The board contends instead that the plaintiffs first applied for a permit in 1971. The timing of the application is of significance because Norwood's zoning by-law was amended in 1965 to prohibit the construction of structures such as Building No. 1 on the plaintiffs' land. Because the plaintiffs' application was filed pursuant to an approved subdivision plan, it was protected from the effects of zoning changes for a period of five years following the date on which the plan was approved. See G.L. c. 40A, § 7A, as amended by St.1961, c. 435 § 2; Vazza v. Board of Appeals of Brockton, 359 Mass. 256, 263--264, 269 N.E.2d 270 (1971). Since the plaintiffs' subdivision plan was approved in 1965, they were protected under § 7A until 1970. It would follow that a 1971 application (but not one filed in 1969) could properly have been denied as violative of the zoning by-law which was in effect in 1971.

A review of the evidence convinces us, however, that the judge was not plainly wrong in his finding concerning the filing of the 1969 application. One Joseph Santos, who had served as attorney for the plaintiffs, testified that in January of 1969, he had personally delivered a permit application for Building No. 1, together with construction plans and a check for the permit fee, to the office of the building inspector and at that time had requested a building permit. There was no objection to this testimony, nor was it controverted by the board. 2

2. The board further argues that even if an application was filed in 1969, the plaintiffs gained no rights under it because the five-year period of protection provided for by G.L. c. 40A, § 7A, expired before the building inspector acted on their application. In this respect it cites Spector v. Building Inspector of Milton, 250 Mass. 63, 71, 145 N.E. 265 (1924), and Caputo v. Board of Appeals of Somerville, 330 Mass. 107, 111, 111 N.E.2d 674 (1953). Those cases, which hold that the filing of a permit application vests no rights in the applicant, were decided prior to the enactment of G.L. c. 40A, § 7A, by St.1957, c. 297, and do not apply to applications which fall within its provisions. The purpose of § 7A is to protect developers from zoning changes, albeit under particular circumstances and for a limited time as set forth in the statute (see Smith v. Board of Appeals of Needham 339 Mass. 399, 401--402, 159 N.E.2d 324 (1959); Nyquist v. Board of Appeals of Acton, 359 Mass. 462, 464--466, 269 N.E.2d 654 (1971)), and it would be inconsistent with this purpose if the protection afforded by § 7A could be lost through a local official's inaction. In this regard it is significant that under the provisions of § 7A the zoning by-law applicable to land for which there exists an approved subdivision plan is the by-law in effect at the time of the plan's submission rather than at the time of its approval and that, pending an appeal, disapproval by the board does 'not serve to terminate any rights which . . . have accrued under the provisions of . . . (the) section.' 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 filed under such plans. We interpret the period of protection provided for in § 7A to extend to building permit ations filed, but not approved, before the expiration of the period of protection provided therein.

3. The board next argues that whatever rights the plaintiffs may have had under § 7A were lost by their dilatory tactics, in particular their failure to seek a writ of mandamus to force the building inspector to act on their application. See, e.g., Ouellette v. Building Inspector of Quincy, --- Mass. ---, ---, a 285 N.E.2d 423 (1972). There was no evidence that the plaintiffs' restraint worked to the disadvantage of the board. See Moseley v. Briggs Realty Co., 320 Mass. 278, 283, 69 N.E.2d 7 (1946), and the cases cited...

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4 cases
  • Falcone v. Zoning Bd. of Appeals of Brockton
    • United States
    • Appeals Court of Massachusetts
    • 5 June 1979
    ...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 protectio......
  • Chira v. Planning Bd. of Tisbury
    • United States
    • Appeals Court of Massachusetts
    • 20 August 1975
    ...of Acton, 359 Mass. 462, 465--466, 269 N.E.2d 654 (1971); Green v. Board of Appeal of Norwood, --- Mass.App. ---, --- - ---, e 313 N.E.2d 451 (1974). 2. The appellants also assert error in the form of the decrees entered in the cases against the board of appeals. The judge, having ruled tha......
  • Franks v. Dirico, A 9700268
    • United States
    • Massachusetts Superior Court
    • 26 August 1997
    ...the result of inaction or wrongful delay on the part of local zoning enforcement officials. Cf. Green v. Board of Appeal of Norwood, 2 Mass.App.Ct. 393, 396 (1984). The present case raises no such issue. The mere fact that building commissioner mistakenly believed that a variance was needed......
  • McCaffrey v. Board of Appeals of Ipswich
    • United States
    • Appeals Court of Massachusetts
    • 24 February 1976
    ...Sav. Bank, --- Mass.App.Ct. ---, ---, ---, b 309 N.E.2d 525 (1974); Green v. Board of Appeal of Norwood,--- Mass.App.Ct. ---, --- c, 313 N.E.2d 451 (1974). Thus, though the decision of the board must be annulled since its basis is untenable, we do not believe that the judgment should at thi......

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