Perry v. Building Inspector of Nantucket

• Decision Date: 20 July 1976
• Parties: Lindsey R. PERRY, trustee v. BUILDING INSPECTOR OF NANTUCKET et al. (and two companion cases).
• Court: Appeals Court of Massachusetts

Page 733

350 N.E.2d 733

4 Mass.App.Ct. 467

Lindsey R. PERRY, trustee

v.

BUILDING INSPECTOR OF NANTUCKET et al. (and two companion cases).

Appeals Court of Massachusetts, Nantucket.

Argued May 11, 1976.

Decided July 20, 1976.

Donald L. Connors, Boston (Susan G. Kupfer, Cambridge, with him), for defendants.

Theodore L. Tillotson, Boston, for plaintiff.

Before HALE, C.J., and GRANT and ARMSTRONG, JJ.

ARMSTRONG, Justice.

The plaintiff is the owner of two parcels of land ¹ situated on the easterly side of Cambridge Street in the Madaket section of Nantucket, on which he is attempting to build four condominium developments. In the spring and summer of 1974 the building inspector issued the necessary building permits. After hearings called to air the complaints of various residents, the board of appeals revoked the permits for three of the four developments in two decisions rendered in November, 1974. Two of the cases are appeals by the plaintiff under G.L. c. 40A, § 21 ², from those decisions. The third is an action for declaratory relief, brought by the plaintiff against the building inspector in the belief that the latter intended to revoke the permits for the fourth development. The three cases were heard together in the Superior Court on a stipulation of facts amounting to a case stated, and judgments were entered favorable to the plaintiff in each case. The appeals to this court were taken by the complaining residents ³; neither the board of appeals nor the building inspector has appealed.

The plaintiff's parcels of land are shown on a plan which was endorsed by the planning board, 'approval under the subdivision control law not required', on December 22, 1971. ⁴ See G.L. c. 41, § 81P. Most of the lots shown on the parcels are of the 'pork chop' variety, connected to Cambridge Street by long, narrow strips of land twenty feet in width. At that time Nantucket did not have a zoning by-law and the plaintiff's position throughout this litigation has been that, because his plan received the endorsement of the planning board before a zoning by-law took effect, he is entitled to the protections afforded by G.L. c. 40A, §§ 5A and 7A, against the application of pertinent provisions of the present zoning by-law to his proposed condominium developments.

The zoning by-law was adopted in May, 1972, and as amended through 1974, when the building permits in question were issued, classified the plaintiff's parcels in the 'residential 2' zone. ⁵ The only private use permitted in that zone as of right is single family detached dwellings together with accessory buildings (subject to certain yard requirements), one of which may contain another dwelling unit. The applicable density or intensity regulations require lots to have 20,000 square feet of area ⁶, 75 feet of frontage, 20 feet of front yard, a maximum 20 per cent 'ground coverage ratio,' and a maximum 40 per cent 'floor area ratio'.

In addition to single family detached dwellings, permitted as of right, it may be (the point is not argued ⁷) that cluster developments are permissible by special exception in the residential 2 zone. Such developments require, among other things, that the tract be not less than 10 acres, that the number of lots not exceed the number of lots upon which dwellings could otherwise be constructed on the tract, that there be no more than 8 dwelling units per acre, and that lots contain 10,000 square feet and have (subject to an exception not material) fifty feet of frontage on a public or private way, a minimum front yard of 15 feet, and a minimum width at the building of 50 feet. A further requirement is that at least 65 per cent of the tract be open land, and that the area of open land, when added to the areas of all lots smaller than those permitted as of right in the zone, be not less than the number of such lots multiplied by the minimum number of square feet required in the zone for a buildable lot. It is thus apparent that the area requirements for dwellings in cluster developments cannot be less than, and may exceed, those applicable to single family dwellings in the same zone.

The plaintiff's first development, which has in fact been built under tha still outstanding building permit, occupies the smaller of the two parcels. ⁸ It contains seven one-and-a-half story, single-family detached dwellings. The parcel contains 107,337 square feet and has 358 feet of frontage on Cambridge Street. The second development is planned to have eight such dwellings, occupying a portion ⁹ of the larger parcel containing 138,148 square feet and 100 feet of frontage. The third development would have nine dwellings on another portion ¹⁰ containing 186,541square feet and 120 feet of frontage. The fourth would have eight dwellings on the remaining portion ¹¹ containing 150,773 square feet and 223 feet of frontage. Although all of the developments fall well within the front yard, ground coverage ratio, and floor area ratio requirements of the zoning by-law, it is clear that none is in compliance with both the area requirement and the frontage requirement of either the single family detached dwelling intensity regulation ¹² or the cluster development intensity regulation.

We turn to the plaintiff's contention that the second paragraph of G.L. c. 40A, § 7A ¹³, affords his land protection against the application of those provisions of the zoning by-law. In Bellows Farms, Inc. v. Building Inspector of Acton, 364 Mass. 253, 260, 303 N.E.2d 728, 733 (1973) the protection afforded by the second paragraph of § 7A to 'the use of the land' shown on a plan endorsed 'approval not required' was held to mean 'protection only against the elimination of or reduction in the kinds of uses which were permitted when the plan was submitted to the planning board.' The second paragraph was held not to include protection against the application of dimensional and density requirements to land shown in the plan, at least where such requirements '(do) not constitute or otherwise amount to a total or virtual prohibition of the use of the locus for' a purpose permitted at the time of submission of the plan. Ibid. Contrast Rayco Investment Corp. v. Board of Selectmen of Raynham, --- Mass. ---, --- - --- ^a, 331 N.E.2d 910 (1975). It follows that, in the present cases, the protection afforded by § 7A to the plaintiff's parcels goes only so far as to permit his use of the land for a 'condominium development' (which the plaintiff contends is a multi-family use) in the face of the 1974 zoning by-law restricting the zone in which the plaintiff's parcels lie to single-family use. Section 7A does not protect those developments from the dimensional and intensity requirements of the 1974 by-law.

The plaintiff attempts to distinguish the Bellows Farms case on the ground that the increased intensity requirements held applicable in that case expressly applied to apartment houses in a zone where apartments were a permitted use. By contrast, he argues, the defendants are seeking to have us apply intensity requirements intended for singe-family, detached dwellings to a multi-family use. The plaintiff's contention is that, under the protection of § 7A, he may devote his land to a multi-family use, and that the zoning by-law prescribes no intensity requirements whatever for such a use.

This argument, if accepted, would result in the anomaly that the protection afforded by § 7A to a use forbidden in a zone would be broader than the protection it affords to a use permitted in the zone. The latter would be subject to intensity regulation, but the former would not. We hold, instead, that in applying the principle of the Bellows Farms case to a use permitted in a zone solely through the protection of the second paragraph of § 7A, a reasonable accommodation must be made, applying either the intensity regulations applicable to a related use within the zone or, alternatively, applying the intensity regulations which would apply to the protected use in a zone where that use is permitted. No hard and fast rule can be laid down. The reasonableness of the accommodation will depend on the facts of each case. 'Zoning by-laws must be construed reasonably.' Green v. Board of Appeal of Norwood, 358 Mass. 253, 258, 263 N.E.2d 423, 428 (1970); Lindsay v. Board of Appeals of Milton, 362 Mass. 126, 130, 284 N.E.2d 595 (1972).

The cases before us present no difficulty in this respect. In particular, we need not decide whether the applicable intensity requirements are those applicable to singlefamily dwellings (as the plaintiff is in fact constructing single-family dwellings) or those applicable to cluster developments (as the plaintiff apparently envisions common ownership of the open land). It would be especially inadvisable to attempt to do so in view of the paucity of the record in this respect. The crucial fact is that none of the developments meets both the area and frontage requirements for either use. Section 7A does not protect the plaintiff's parcels from the applicability of the intensity requirements of the zoning by-law, as amended through 1974.

The plaintiff contends, however, that the first paragraph of G.L. c. 40A, § 5A ¹⁴, protects his developments from the area and frontage requirements of the zoning by-law. Alternatively, he contends that, because the four land areas (comprised in each case of six or more contiguous lots shown on the 1971 plan) each exceed the minimum specifications for a buildable lot under the Nantucket zoning by-law, he does not need the protection afforded by § 5A.

Section 5A, by its terms, affords its protection to lots shown on a plan (in contrast to § 7A, which affords protection to the land shown on a plan). In order to qualify for protection under § 5A, a lot must have at least 5000 square feet of area and 50 feet of frontage. The only lots shown on the 1971 plan which comply with the minimum frontage requirement needed to obtain § 5A protection are lots 508...