Lanner v. Board of Appeal of Tewksbury

• Decision Date: 08 December 1964
• Parties: Ruth I. LANNER v. BOARD OF APPEAL OF TEWKSBURY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 777

202 N.E.2d 777

348 Mass. 220

Ruth I. LANNER v. BOARD OF APPEAL OF TEWKSBURY et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Oct. 7, 1964.

Decided Dec. 8, 1964.

P. Harold Ready, Lowell, for plaintiff.

Warren W. Allgrove, Town Counsel, for Board of Appeal of Tewksbury and another.

Arthur L. Eno, Jr., Lowell (Alphee J. Achin, Lowell, with him) for Carl S. Garabedian and another.

Before WILKINS, C. J., and SPALDING, WITHTEMORE, CUTTER, KIRK, SPIEGEL, and REARDON, JJ.

KIRK, Justice.

This bill in equity under G.L. c. 40A, § 21, is in the nature of an appeal from a decision of the board of appeal (the board) of the town of Tewksbury (the town) which upheld that validity of a permit issued under an amended zoning by-law by the inspector of buildings (the inspector) authorizing the construction of a super market and shopping center at the locus, an area facing the junction of River Road and Andover Street in that part of the town known as North Tewksbury.

The plaintiff Lanner, the owner of land with dwelling nearest to the locus, appeals from a decree of the Superior Court that the board, to which the plaintiff appealed under G.L. c. 40A, § 13, did not exceed its authority and that no modification of its decision was required. In addition to the board, the defendants are Carl S. and Mary Garabedian (Garabedian) and Daniel E. Rothenberg (Rothenberg), the sellers and buyer, respectively, of the locus under a purchase and sale agreement. The building permit was issued to Garabedian and Rothenberg on May 22, 1961, and the appeal was taken to the board on May 29, 1961.

We deal first with the contention, made by the board for the first time in its argument before us, that the board was without jurisdiction under G.L. c. 40A, § 13, to hear Lanner's appeal of May 29, 1961, and that in consequence the proceedings thereafter pursued by Lanner are unavailing. It is provided in G.L. c. 40A, § 13, that '[a]n appeal to the board of appeals established under section fourteen may be taken * * * by any person aggrieved by any order or decision of the inspector of buildings or other administrative official in violation of any provision of this chapter, or any ordinance or by-law adopted thereunder.' The board argues that the issuance of a building permit is not an order or decision of the inspector of buildings' and therefore not appealable to it. We do not agree. The issue was squarely met and decided in Colabufalo v. Board of Appeal of Newton, 336 Mass. 213, 143 N.E.2d 536, where the buildings commissioner issued a permit for the construction of work buildings in a residence district. There the plaintiff, contending that the building permit was invalid because the variance under which it was issued was invalid, appealed to the board of appeal and ultimately to this court which said at pages 216-217, at page 540 of 143 N.E.2d 'The plaintiff by virtue of G.L. (Ter.Ed.) c. 40A, § 13, as appearing in St. 1955, c. 325, § 1, had a right of appeal [and did appeal] to the board of appeal from the decision of the buildings commissioner, and under § 21 he had an appeal to the Superior Court from the decision of the board' (emphasis supplied). In Tracy v. Board of Appeals of Marblehead, 339 Mass. 205, it appears at page 206, 158 N.E.2d 317, that the procedural steps taken to test the validity of the building permit granted by the building inspector under a challenged zoning by-law were the same as those taken in the Colabufalo case and in the case before us. The propriety of the procedure was not questioned by the parties or by the court.

None of the cases cited by the board in support of its contention derogates from the holding in the Colabufalo case. In none of them was there a determination that the issuance of a building permit by a building inspector could not be appealed to the board of appeals under G.L. c. 40A, § 13. Almost all of them were petitions for a writ of mandamus, calling for the enforcement of a zoning ordinance or by-law, and discussion of G.L. c. 40A, § 13, was incidental to a determination that mandamus was the proper, if not the only, remedy available in the particular case. Thus, in Atherton v. Selectmen of Bourne, 337 Mass. 250, 149 N.E.2d 232, a petition for a writ of mandamus, where work under a previously issued permit had been stopped the subsequent removal of the stop order either by physical act or informal communication of the building inspector to the owner was held not to be an 'order or decision' contemplated by the Legislature as the basis for an appeal under G.L. c. 40A, § 13; hence, relief by mandamus was proper. In Dodge v. Inspector of Bldgs. of Newburyport, 340 Mass. 382, 164 N.E.2d 309, also a petition for a writ of mandamus, the failure to appeal from the issuance of a building permit under G.L. c. 40A, § 13, did not bar mandamus in circumstances where neither the permit nor the application reasonably foretold that the remodelling of the interior of a dwelling would result in the conversion and use of the first floor as a drug store in violation of the zoning ordinance. In Williams v. Inspector of Bldgs. of Belmont, 341 Mass. 188, 168 N.E.2d 257, a petition for a writ of mandamus, no building permit was requested, issued or denied but it was recognized that 'questions of enforcement * * * will come before the local board of appeals [under G.L. c. 40A, § 13] if a permit is granted or denied.' In Hinves v. Commissioner of Pub. Works of Fall River, 342 Mass. 54, 172 N.E.2d 232, a petition for a writ of mandamus was granted for the enforcement of a zoning ordinance against a change in an existing nonconforming use when the commissioner took no action whatever on the petitioner's request for action, thus making no order or decision from which an appeal could be taken under G.L. c. 40A, § 13.

The cases of Kolodny v. Board of Appeals of Brookline, 346 Mass. 285, 191 N.E.2d 689, and Gamer v. Zoning Bd. of Appeals of Newton, 346 Mass. 648, 195 N.E.2d 772, cited by the defendant board, have no bearing on the issue now being discussed. No question has here been raised as to the timeliness of the plaintiff's appeal to the board.

Accordingly, we affirm our holding in Colabufalo v. Board of Appeal of Newton, 336 Mass. 213, 216-217, 143 N.E.2d 536, that the issuance of the building permit was an order or decision of the building inspector which the board had jurisdiction to hear on an appeal seasonably taken under G.L. c. 40A, § 13.

We turn to the substantive issue which is whether an amendment adopted in 1961 to the zoning by-law, changing five acres (the locus) of a forty-five acre farm from a general residence and farm district to a local business district, is invalid under the provisions of G.L. c. 40A, § 2. ¹

Specifically, and solely, Lanner contends that the amendment singles out the locus for restrictions less onerous than those imposed on other land in the district whose characteristics are the same as the locus and that in consequence the amendment is invalid as spot zoning.

The judge made detailed findings of fact. The evidence, including maps, photographs and survey data, is reported. We state the relevant facts found by the judge, in so far as they are supported by the evidence, and supplement them by such other and additional facts as we deem to be justified by the evidence. Hanrihan v. Hanrihan, 342 Mass. 559, 564, 174 N.E.2d 449, and cases cited.

First, a description of the physical features of the area in general. ² North Tewksbury, one of the six subdivisions or sections of the town, is in the northwest corner. It is contiguous to the city of Lowell on the west, extends to the Merrimack River on the north and to the Andover town line on the northeast. Although its area (3,800 acres) is only slightly less than the largest section of the town, North Tewksbury has the smallest built up area (210 acres); the greatest area of wet lands (1,160 acres); the largest acreage of steep solpes (460 acres); and the largest area available for residential use (1,620 acres). In contrast to other sections of the town where the terrain (except for swampy areas) is fairly level and the soil sandy, North Tewksbury is mainly rolling or hilly country with boulders and outcroppings of rock. No other section exceeds, and only one equals, its potential growth in dwelling units.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The Garabedian property, with which we are particularly concerned, consists of forty-five acres. It is in the northwest corner of North Tewksbury, and thus is bounded by the Lowell city line on the west and the Merrimack River on the north. On the east it is bounded by the property of other owners, including Lanner. On the southwest, for approximately 120 feet, measured east from the Lowell line, it is bounded by and fronts on Andover Street, otherwise known as Route 133, which in a generally west-east direction runs from the center of Lowell through Tewksbury and Andover into Lawrence. On the southeast the property is bounded by and fronts upon River Road which from its beginning (at the point 120 east of the Lowell line) runs northeasterly through Andover into Lawrence. Both Andover Street and River Road are heavily traveled. The angle formed by the junction of the two roads is approximately forty-five degrees and points to the west. The locus (five acre plot) which has been cut out of the Garabedian property for a local business district is in the southwest corner of the Garabedian property, and hence is bounded on the west by the Lowell line, on the southwest and southeast by the two roads above described, and on the north and east by the remaining property of Garabedian. The entire Garabedian tract is fairly level from the roadways to the river. To the east for several hundred yards on River Road the terrain rises perceptibly and then drops off sharply as it nears a watercourse known as Trull Brook.

Next we state the land...