McCarthy v. Board of Appeals of Ashland
| Citation | 241 N.E.2d 840,354 Mass. 660 |
| Parties | Richard H. McCARTHY et al., Trustees v. BOARD OF APPEALS OF ASHLAND. |
| Decision Date | 04 November 1968 |
| Court | United States State Supreme Judicial Court of Massachusetts |
John V. Phelan, Lynn, for defendant.
Eugene L. Tougas, Waltham, for plaintiffs.
Before WILKINS, C.J., and SPALDING, WHITTEMORE, CUTTER, SPIEGEL and REARDON, JJ.
This is a bill in equity by way of an appeal under G.L. c. 40A, § 21, by the trustees of the Lakeridge Realty Trust from a decision of the board of appeals of the town of Ashland (board) sustaining the building inspector's denial of a building permit. The board appealed from a final decree annulling its action and directing the issuance of the building permit. The judge filed 'Findings, Rulings and Order for Decree' which he subsequently adopted as a report of material facts. The evidence is reported.
The specific lot in question was at one time one of nine lots comprising a tract of land owned by one Farese. Four of these lots were front lots not requiring the approval of the planning board for subdivision and were sold to a developer who constructed single family dwellings on them.
On June 6, 1962, a preliminary plan for the subdivision of the remaining five lots was submitted to the planning board and notice of its submission was given to the town clerk. A definitive plan was approved on December 6, 1962. On both of these dates the controlling provision of the zoning by-law of Ashland read as follows: * * *' The lots shown on the definitive plan were within a residential district. At the annual town meeting on March 11, 1964, the zoning by-law was amended to create Residential 'A' and Residential 'B' districts. In Residential 'A' districts the use of buildings, structures and premises was limited to 'any single residential * * * purpose * * *.' The lots shown on the definitive plan are within a Residential 'A' district.
On March 7, 1966, the plaintiffs acquired title to the five lots from one Quinn who had purchased them from Farese the previous year. On July 20, 1966, one of the plaintiffs filed with the building inspector an application for a building permit for an apartment building on one of the lots shown on the definitive plan. The application was disapproved because of the 'Residential area 'A' (zoning).' The plaintiffs appealed to the board which held a public hearing and filed a decision upholding the action of the building inspector. The trial judge ruled that, in accordance with the provisions of G.L. c. 40A, § 7A, the action of the board was in excess of its authority and directed the building inspector to issue the requested building permit.
General Laws c. 40A, § 7A, as amended through St.1961 c. 435, § 2, stated in pertinent part that '(w)hen a preliminary plan * * * has been submitted to a planning board, and written notice of the submission of such plan has been given to the city or town clerk, * * * and, if * * * (the) definitive plan (evolved from the preliminary plan) becomes approved, * * * (the) provisions of the ordinance or by-law in effect at the time of the submission of the first submitted plan shall govern the land shown on such approved definitive plan for a period of five years from the date of endorsement of such approval notwithstanding any other provision of law' (emphasis added).
The board concedes that § 7A 'lends much force' to the contention of the plaintiffs that they are entitled to build any structure permitted by the zoning by-law in effect in 1962. However, they contend that the scope of § 7A is limited to the permissible use contemplated by the planning board at the time that the plan was approved. The board points to the finding of the trial judge that 'the Planning Board was of the opinion that it was going to be developed for single family dwelling houses.' What the board is in essence urging is that the planning board's opinion constitutes an implied restriction on the use of the subdivision. Such a restriction, however, is expressly prohibited by the Subdivision Control Law. General Laws c. 41, § 81Q, inserted by St.1953, c. 674, § 7, states in pertinent part that '(e)xcept in so far as it may require compliance with the requirements of existing zoning ordinances or by-laws, no rule or regulation (of the planning board) shall relate to the size, shape, width, frontage or use of lots within a subdivision, or to the buildings which may be constructed...
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