Green v. Board of Appeal of Norwood

• Decision Date: 04 November 1970
• Citation: 358 Mass. 253,263 N.E.2d 423
• Parties: Robert GREEN et al. v. BOARD OF APPEAL OF NORWOOD et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 423

263 N.E.2d 423

358 Mass. 253

Robert GREEN et al. v. BOARD OF APPEAL OF NORWOOD et al.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Oct. 7, 1970.

Decided Nov. 4, 1970.

Sumner H. Babcock, Boston (Henry S. Healy, Leominster with him) for plaintiffs.

Justin C. Barton, Norwood, for defendants Aspell and for Peter A. Alessi and others, interveners.

Walter J. Gotovich, Town Counsel, for the Board of Appeal of Norwood, joined in a brief.

Before SPALDING, CUTTER, KIRK, SPIEGEL and REARDON, JJ.

CUTTER, Justice.

On April 3, 1968, the plaintiffs, doing business as Norwood Gardens (Gardens), were given permits to construct buildings on land (the locus) in Norwood. The locus was in a G district (i.e. zoned for general residence use) when a definitive subdivision plan of the locus was approved on March 29, 1965. On December 20, 1965, at a special town meeting, the locus was rezoned for a single residence use.

Permit no. 9949 (for building no. 2) covered lots 838 to 840, inclusive, shown on the plan and related to forty-four units. The total area of these lots is 176,006 square feet. Permit no. 9950 (for building no. 3) dealt with lots 820 to 827, inclusive. These lots contain 217,690 square feet. The permit was for fifty-four units. ¹

After the permits were issued, land was graded, water and sewer facilities were installed, and storm drains and foundations were provided, at a cost of about $350,000. A total expenditure of $6,000,000 is proposed.

James J. and Constance Aspell (the Aspells), also defendants in this proceeding, appealed from the action of the building inspector in granting permits nos. 9949 and 9950. The board of appeal, after hearing, voted to request the selectmen to revoke the permits.

Gardens then brought the present bill in equity under G.L. c. 40A, § 21 (as amended through St.1960, c. 365; see later amendments through St.1970, c. 80). The bill seeks a determination that the board of appeal exceeded its authority in reversing the action of the building inspector. The trial judge, in voluntary findings, in effect stated the facts set forth above and made a few independent findings, which (so far as now important) are mentioned below. He then made a somewhat ambiguous summary or quotation of the decision of the board of appeal. We assume that he intended thereby to adopt some of the board's findings as his own, although he appropriately should have made independent findings after a hearing de novo. ² A final decree was entered that no modification of the board's decision was required. Gardens appealed.

The evidence is reported. The trial judge adopted his voluntary findings as his report of material facts. See Selig v. Wexler, 355 Mass. 671, 672, 247 N.E.2d 567.

1. The trial judge correctly ruled that the locus is governed by the 1963 zoning by-law in effect at all times from January 18, 1963, until after March 29, 1965, when the definitive subdivision plan was approved. See G.L. c. 40A, § 7A (as amended through St.1964, c. 688; see later amendments through St.1965, c. 366, §§ 1, 2). ³ See also Doliner v. Planning Bd. of Millis, 349 Mass. 691, 696--697, 212 N.E.2d 460; McCarthy v. Board of Appeals of Ashland, 354 Mass. 660, 661--663, 241 N.E.2d 840. Accordingly, if Gardens' project complied with the 1963 zoning by-law, Gardens was entitled (so far as § 7A is concerned) to the permits which it sought.

The Aspells contend that Gardens gains no protection from § 7A because there is no proof that the definitive plan was submitted within seven months of the filing of a preliminary plan (fn. 3), even though Gardens now seeks no protection against any amendment of the zoning by-law occurring before the approval of the definitive plan. The judge adopted the board's conclusion 'that protection does accrue (to Gardens) under * * * (s) 7A.' This conclusion implies a finding (warranted by stipulations concerning the definitive subdivision plan and by the absence of dispute before him concerning the proceedings leading to that plan's approval) that there had been compliance with procedural requirements for obtaining protection under § 7A. In the circumstances, such issues should not be raised for the first time in this court. See Henchey v. Cox, 348 Mass. 742, 747, 205 N.E.2d 715. We thus need not decide whether, in any event, approval of the definitive subdivision plan gave Gardens protection under § 7A against any amendment of the zoning by-law occurring after such approval, even if more than seven months elapsed between the date on which a preliminary plan was filed and the filing of the definitive plan. ⁴ .

2. Section 11, par. A, of the applicable Norwood zoning by-law provides, 'No dwelling shall be constructed * * * on a lot having less frontage * * * or less area' than specified in Table B attached to § 11. In a G district, Table B (as in effect on March 29, 1965) states the required lot area to be '2 acres and not less than 4000 sq. ft. per dwelling unit for all units on the lot in buildings for 3 or more families' (emphasis supplied).

The Aspells contend that the italicized 'and' makes the space requirement for multi-unit buildings in effect a minimum of two acres plus an additional 4,000 square feet for each dwelling unit. As an example, they suggest that the 'area required * * * for * * * permit (n)o. 9949 is 263,120 square feet * * * (i.e. 2 43,560 square feet and 44 4000 square feet = 263,120).' They point out that Gardens had only 176,006 square feet for the proposed building covered by the permit.

Although the by-law is not wholly clear, the reasonable interpretation ⁵ is that for buildings for three or more families, (a) the lot must be at least two acres in size and (b) for each dwelling unit on the lot there must be at least 4,000 square feet. The consequence would be that on a two acre lot (87,120 square feet) there could be twenty-one dwelling units. The area covered by building no. 2 (176,006 square feet) would permit (at 4,000 square feet a dwelling unit) forty-four units. In the case of the building covered by permit no. 9950, with an area of 217,690 square feet, there could be fifty-four dwelling units.

Zoning by-laws must be construed reasonably. See Petros v. Superintendent, etc., of Bldgs. of Lynn, 306 Mass. 368, 371, 28 N.E.2d 233; Haynes v. Grasso, 353 Mass. 731, 734, 234 N.E.2d 877, and cases cited. As in the case of other legislative provisions, such by-laws should not be so interpreted as to cause absurd or unreasonable results when the language is susceptible of a sensible meaning. Here, however, we need not rely solely on such general canons of construction, for in another part of Table B, the by-law uses different and clear language ⁶ when the purpose is to reach the result for which the Aspells contend. The different usage supports our conclusion, as does a decision of the Land Court (August 27, 1969, in Clark v. Norwood, Misc. No. 55,529) with respect to which no appeal has been perfected. Gardens, in an appendix to its brief, has brought this decision to our attention.

3. Section 14 of the by-law provides in par. B, 'Except in the case of authorized group projects, no lot in any district shall be occupied by more than one dwelling.' Section 4, par. A, provides that (with exceptions not pertinent) 'no building * * * or land shall be used * * * for any purpose other than for one or more of the uses set forth in Table A as permitted in the district in which such building * * * or land is located.' Table A, Use Item A4 (as in effect on March 29, 1965), indicates that in a G district, the term 'dwelling' or 'dwellings' includes a '(b)uilding for occupancy by a total of three or more families including an 'attached house' (in which the dwelling units are side by side, separated by a wall) and an 'apartment house' (in which each dwelling unit is in whole or in part over or under another unit, and/or (sic) shares a common entrance with another unit); provided that in a G (general residence) district, no full dwelling unit shall be above the second floor.'

Each building proposed by Gardens has one roof and one foundation and is two stories high (so that no full dwelling unit is above the second floor). One of the buildings (building no. 2) has four attached segments or sections containing apartments or dwelling units. The other building (building no. 3) has seven such segments or sections. Each dwelling unit is in whole or in part over or under another unit and shares a common entrance with another unit or units. On the same floor the dwelling units are side by side. The dwelling units are separated by walls. The segments or sections of each building also are thus separated. The building inspector testified as to building no. 2 that in his opinion it was 'one building with fire walls between the sections to separate them for fire protection.'

The Aspells argue that the structure covered by each permit constitutes a group of buildings subject to § 14 of the by-law dealing with 'a group of two or more dwellings' and to the provisions of par. B of § 14, already quoted, that (with the exception noted earlier) 'no lot in any district shall be occupied by more than one dwelling.' Gardens, we think correctly, takes the position that, under this by-law, each building permit covers only a single building or dwelling, so that § 14 has no application because only a single building (or a part of a single building) will be on any lot. The provision in Table A, Use Item A4, quoted above, governing the multi-family dwellings permissible in G districts, is broad enough to include within the term 'dwelling' single buildings containing sections or segments, each with several apartments or dwelling units, like those shown in the plans in the record. On the evidence, under the by-law, either building was permissible in a G district despite the arrangement of its sections or dwelling units.

4. The Aspells contend that Gardens in the applications for...