Nyquist v. Board of Appeals of Acton

• Decision Date: 10 May 1971
• Citation: 359 Mass. 462,269 N.E.2d 654
• Parties: Paul R. NYQUIST et al. v. BOARD OF APPEALS OF ACTON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 654

269 N.E.2d 654

359 Mass. 462

Paul R. NYQUIST et al. v. BOARD OF APPEALS OF ACTON et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued March 5, 1971.

Decided May 10, 1971.

Charles E. Orcutt, Jr., Acton, for plaintiffs.

Charles G. Kadison, Jr., Boston (Julian J. D'Agostine, West Acton, with him), for Atlantic Corporation & others.

Before TAURO, C.J., and SPALDING, SPIEGEL, REARDON and BRAUCHER, JJ.

SPIEGEL, Justice.

This is a bill in equity by way of an appeal under G.L. c. 40A, § 21, from a decision of the board of appeals of the town of Acton sustaining the building inspector's issuance of a permit. The plaintiffs appealed from an interlocutory decree sustaining a demurrer ¹ and from a final decree dismissing the bill.

The bill in substance alleges the following: The plaintiffs are owners of land 'in close proximity' to a certain parcel of land (situs) which is the subject of this suit. The defendant, atlantic Corporation (Atlantic), is the prospective purchaser of the situs under written agreements with the defendants Malcolm and Judith Dunn and Cologero and Jean Calluzzo. On December 13, 1968, the Dunns submitted a plan to develop the situs into a shopping center together with an application for an endorsement by the Acton planning board that the accompanying plan did not require approval under the Subdivision Control Law. On December 16, 1968, the planning board endorsed the plan as follows: 'Approval under the Subdivision Control Law Not Required.' Pursuant to the applicable zoning by-law in effect at the time the plan was submitted, the situs was in an Industrial I--1 zone in which retail uses were permitted.

On January 30, 1969, the planning board published the first advertisement for a hearing on a proposed amendment to the zoning by-law under which the situs would be rezoned from an Industrial I--1 zone to an Industrial I--2 zone. Retail uses are not permitted under the latter. On February 20, 1969, as advertised, the hearing was held.

On March 14, 1969, Atlantic applied to the building inspector for a permit to construct a department store and associated parking facilities on the situs. On April 7, 1969, it was voted at a town meeting to change the zoning of the situs to Industrial I--2. On May 28, 1969, the building permit was issued subject to various conditions which were agreed to by Atlantic, and a driveway permit was also issued. On June 3, 1969, the plaintiffs appealed to the board of appeals from the issuance of the permits. On December 8, 1969, after a public hearing, the board of appeals held that the building permit was properly issued and that the issuance of the driveway permit was not before it.

This case essentially involves the legal sufficiency of these facts considered in the light of G.L. c. 40A, § 7A, as amended through St.1965, c. 366, § 1. That statute provides in pertinent part as follows: 'When a plan * * * (not requiring approval under the Subdivision Control Law) has been submitted to a planning board * * *, the use of the land shown on such plan shall be governed by applicable provisions of the zoning * * * by-law in effect at the time of the submission of such plan' (emphasis supplied).

The plaintiffs admit in their bill that the zoning by-law in effect at the time the plan was submitted to the planning board and at the time Atlantic applied for a building permit authorized retail uses on the situs. However, notwithstanding the explicit language of the statute that 'the use of the land * * * shall be governed by applicable provisions of the zoning * * * by-law in effect at the time of the submission of such plan,' the plaintiffs argue that the protection afforded by § 7A extends only to the use of the land and does not 'protect a building permit' which, they assert, is protected only by G.L. c. 40A, § 11, inserted by St.1954, c. 368, § 2. That statute provides in pertinent part as follows '(I)n a town, no zoning by-law or amendment thereof shall affect any permit issued or any building or structure lawfully begun before notice of hearing * * * has first been given' (emphasis supplied). The plaintiffs argue that since the building permit was not obtained until May 28, 1969, which was after the first notice of the hearing on January 30, 1969, to amend the zoning by-law, § 11 does not protect the permit and therefore, it should be revoked. In support of this argument, the plaintiffs attempt to 'harmonize' § 11 with § 7A by (a) distinguishing between the protection afforded to subdivision plans and nonsubdivision plans under § 7A; (b) analyzing the legislative histories of the respective statutes in connection with G.L. c. 40A, § 5, as amended by St.1962, c. 340, which protects existing uses; ² and (c) making the issuance of the building permit 'a more meaningful event' than the filing of a plan.

We think it needless to detail the extensive reasoning engaged in by the plaintiffs in their brief in an endeavor to support their conclusions. This result ignores the clear and unequivocal language of G.L. c. 40A, § 7A, which extends a broader protection than that given in § 11 and is not restricted by it. In construing § 7A, this court has stated that '(t)here is no uncertainty or ambiguity in § 7A. The statute gives a period *...