Heritage Park Development Corp. v. Town of Southbridge

• Citation: 674 N.E.2d 233,424 Mass. 71
• Parties: HERITAGE PARK DEVELOPMENT CORPORATION v. TOWN OF SOUTHBRIDGE & another. 1
• Decision Date: 08 January 1997
• Court: United States State Supreme Judicial Court of Massachusetts

Page 233

674 N.E.2d 233

424 Mass. 71

HERITAGE PARK DEVELOPMENT CORPORATION v. TOWN OF SOUTHBRIDGE & another. ¹

Supreme Judicial Court of Massachusetts Suffolk.

Argued Nov. 7, 1996.

Decided Jan. 8, 1997.

Arthur P. Kreiger, Cambridge, for defendants.

James M. Burgoyne, Worcester, for plaintiff.

Before WILKINS, C.J., and ABRAMS, LYNCH, GREANEY and MARSHALL, JJ.

MARSHALL, Justice.

The town of Southbridge and its planning board (board) appeal from a judgment of the Land Court holding that the board's rescission of its approval of a definitive subdivision plan did not extinguish a zoning "freeze" secured by the developer, Heritage Park Development Corporation (Heritage), under G.L. c. 40A, § 6 (1994 ed.). We transferred the case to this court on our own motion. We agree with the decision of the Land Court judge, and we extend the statutory freeze for a period equal to the duration of this action.

The essential facts are not in dispute. In 1986, Heritage acquired a parcel of undeveloped land in Southbridge that is the subject of this litigation (property). In March, 1988, Heritage submitted for approval to the board a preliminary subdivision plan to subdivide the property into 143 single and two-family dwelling lots to be known as "Woodstock Heights." All the lots conformed to the then applicable area and frontage requirements of the Southbridge zoning by-law. The board granted its approval in May, 1988. In October, 1988, Heritage sought approval of the definitive plan, which the board unanimously approved in February, 1989, conditioned on Heritage's providing guarantees that the groundwork necessary to serve each lot would be completed prior to the lot's being built upon or conveyed. ² That condition was satisfied on March 20, 1989, when Heritage and the board executed a covenant providing that no lot could be used, conveyed, or built upon until completion of the required groundwork. The covenant further provided that the board's approval of the plan would be automatically rescinded if the groundwork was not completed on or before March 20, 1991. ³ On the same day, the board endorsed the definitive plan, a copy of which was duly recorded.

In the meantime, in October, 1988, Southbridge had amended its zoning by-law, increasing the area and frontage requirements in single and two-family zoning districts. Under the amended by-law the Woodstock Heights lots shown on the definitive plan would be too small.

During the two years after it obtained subdivision approval, Heritage applied for and obtained certain approvals, permits, and agreements required for the subdivision. But by March 20, 1991, the groundwork called for in the covenant had not been completed. According to Heritage, this was due to the time required to obtain the permits, a downturn in the economy, and the developer's normal rate of work on a development the size of Woodstock Heights. On January 25, 1993, twenty-two months after the date of the automatic rescission of the board's subdivision approval of Woodstock Heights, Heritage appeared before the board and requested an extension of the covenant's construction deadline. The board denied the request. At the same hearing Heritage raised the possibility of refiling a subdivision plan for Woodstock Heights that complied with the pre-1988 zoning by-law. The board told Heritage that any resubmitted plan would have to comply with the then current zoning by-law. The board's decision was based in part on the ground that its approval of the definitive subdivision plan had been automatically rescinded on March 20, 1991, because the groundwork had not been completed. When the board not only refused to extend Heritage's construction deadline but also informed Heritage that any refiled subdivision plan would have to comply with the current zoning by-law, Heritage commenced this action. ⁴

The board argues, and Heritage appears not to dispute, that the board's approval of Heritage's definitive subdivision plan was automatically rescinded on March 20, 1991. We agree. We previously have recognized the validity of an automatic rescission provision in performance covenants similar to the one executed here. Costanza & Bertolino, Inc. v. Planning Bd. of N. Reading, 360 Mass. 677, 681, 277 N.E.2d 511 (1971). While the board's acknowledgment that Heritage "initially" had obtained the benefit of the statutory zoning freeze is equivocal, ⁵ it argues that, when the board's approval of the subdivision plan was automatically rescinded, the freeze terminated and did not retain "independent life." We do not agree. We conclude that in 1989 Heritage secured the benefits of an eight-year statutory zoning freeze for its Woodstock Heights subdivision. We conclude further that the automatic rescission of the board's approval of that subdivision did not deprive Heritage of that vested zoning protection.

We reach this conclusion for several reasons. First, the language of G.L. c. 40A, § 6, fifth par., supports this result. It reads in relevant part:

"If a definitive plan, or a preliminary plan followed within seven months by a definitive plan, is submitted to a planning board for approval under the subdivision control law, and written notice of such submission has been given to the city or town clerk before the effective date of ordinance or by-law, the land shown on such plan shall be governed by the applicable provisions of the zoning ordinance or by-law, if any, in effect at the time of the first such submission while such plan or plans are being processed under the subdivision control law, and, if such definitive plan or an amendment thereof is finally approved, for eight years from the date of the endorsement of such approval...."

Once a definitive subdivision plan is "finally approved," as was the case here, the eight-year zoning freeze is secure. Nothing in the statute suggests that the continued vitality of a freeze is coextensive with subdivision approval. We caution against confusing the rights and obligations of a planning board under the subdivision control law and its rights and obligations under the zoning laws. Whatever subdivision control the board may exercise cannot operate to deprive Heritage of the zoning protection it secured in 1989. See Patelle v. Planning Bd. of Woburn, 20 Mass.App.Ct. 279, 284, 480 N.E.2d 35 (1985). ⁶

The purpose of the statutory zoning freeze also supports our conclusion. That purpose is to protect landowners from "the practice in some communities of adopting onerous amendments to the zoning by-law after submission of a preliminary plan which is opposed by segments within the community." 1972 House Doc. No. 5009, at 38, Report of the Department of Community Affairs Relative to Proposed Changes and Additions to the Zoning Enabling Act. This practice has been of sufficient concern to the Legislature that the protection of a statutory zoning freeze has been extended from an initial three-year period to five years then to seven years, see Doliner v. Planning Bd. of Millis, 349 Mass. 691, 694-695, 212 N.E.2d 460 nn. 3, 4, 696 (1965), and finally to the current eight-year period. G.L. c. 40A, § 6. We have recognized that G.L. c. 40A, § 6, and its predecessors afford broad protection to developers. See Nyquist v. Board of Appeals of Acton, 359 Mass. 462, 465-466, 269 N.E.2d 654 (1971). The Appeals Court has held that developers can invoke a zoning freeze with inconsistent subdivision filings, or with plans filed with no intent other than to invoke the freeze. See, e.g., Long v. Board of Appeals of Falmouth, 32 Mass.App.Ct. 232, 233, 588 N.E.2d 692 (1992); Patelle v. Planning Bd. of Woburn, supra at 284, 480 N.E.2d 35. There is a common thread among these decisions. The statutory zoning freeze provides landowners with protection from amendments to zoning laws that would unpredictably and unfairly burden the development of their land. We recognize the responsibility of a town planning board to respond to community concerns about development and its impact on the quality of a town or neighborhood, but under our system of law a board cannot act at the expense of a vested property right created by the Legislature.

We turn now to the question of relief. Heritage has drawn our attention to the imminent end (March 19, 1997) of the...