Rayco Inv. Corp. v. Board of Selectmen of Raynham

Decision Date22 July 1975
Citation368 Mass. 385,331 N.E.2d 910
PartiesRAYCO INVESTMENT CORP. v. BOARD OF SELECTMEN OF RAYNHAM et al. 1
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Thomas W. Callahan, Berlin, for plaintiff.

Paull M. Cushman, Town Counsel, for Bd. of Selectmen of Raynham and another.

Before TAURO, C.J., and REARDON, QUIRICO, BRAUCHER and HENNESSEY, JJ.

REARDON, Justice.

This is a bill for declaratory relief under G.L. c. 231A in which the plaintiff seeks a declaration concerning the effect of a purported town by-law on its right to operate a mobile home park on property located in the town of Raynham. The Superior Court judge dismissed the bill after issuing 'Findings, Rulings and Order for Decree,' whereupon the plaintiff brought this appeal. The case was submitted on a statement of agreed facts, which can be summarized briefly.

The plaintiff is the onwer of a parcel of land in Raynham in an area which at all material times has been zoned for 'general use,' that is, 'land which is not zoned at this time.' Sometime prior to October 14, 1971, the plaintiff's predecessor in title submitted to the town's planning board a plan with respect to that parcel. An exhibit indicates that on October 14 the planning board indorsed the plan with the notation, 'approval under the subdivision control law not required.' See G.L. c. 41, § 81P. Four days later, on October 18, 1971, the town voted to adopt a by-law (the 1971 by-law) limiting the number of licenses which could be issued for trailer parks. The 1971 by-law reads in its entirety as follows: 'The maximum number of outstanding trailer park licenses issued under G.L. Chapter 140, shall not exceed at any time the number of said licenses issued by the Board of Health, and in conformity with applicable Zoning By-Laws, as of October 1, 1971.' The statement of agreed facts does not disclose the procedure by which the town purported to adopt the 1971 by-law other than to state that it was subsequently approved by the Attorney General's office in January, 1972. It is agreed by the parties that prior to the 1971 by-law operating a 'trailer park' would have been an allowable use of the land in question.

On or about November 1, 1972, the plaintiff submitted to the town board of health an application for a license to operate a trailer park on the plaintiff's parcel of land. On or about November 10, 1972, town counsel informed the plaintiff that the board of health would not set a date for a hearing on the application, citing as the reason the existence of the by-law limiting the maximum number of trailer park licenses to those outstanding as of October 1, 1971.

The principal issue argued by the parties is the applicability of the second paragraph of G.L. c. 40A, § 7A, as appearing in St.1965, c. 65. That paragraph provides: 'When a plan referred to in section eighty-one P of chapter forty-one (i.e., a plan which does not require planning board approval under the subdivision control law) has been submitted to a planning board and written notice of such submission has been given to the city or town clerk, the use of the land shown on such plan shall be governed by applicable provisions of the zoning ordinance or by-law in effect at the time of the submission of such plan . . . for a period of three years from the date of endorsement by the planning board that approval under the subdivision control law is not required . . . provided that a city or town may, in the manner prescribed in this chapter, increase the number of permitted uses of any land shown on such a plan.' The judge rejected the plaintiff's claim of protection under this statute, ruling that the 1971 by-law was 'a valid exercise of the police power of the Town, and it is not to be construed as an amendment to the zoning by-law.' We hold that the judge's ruling was erroneous, and that the 1971 by-law cannot be relied on to defeat the plaintiff's 1972 application for a trailer park license.

1. We have had recent opportunity to construe the second paragraph of § 7A, which governs cases in which the plan submitted does not require planning board approval under the subdivision control law. In Bellows Farms, Inc. v. Building Inspector of Action, --- Mass. ---, ---, a 303 N.E.2d 728 (1973), the court referred to the statute as protecting the landowner 'against the elimination of or reduction in the kinds of uses which were prmitted when the plan was submitted to the planning board.' In that case, however, there was no doubt that the provisions in question were amendments to the existing zoning by-law of the town, and the issue was whether these new zoning provisions restricted the 'use' of the plaintiffs' property within the meaning of § 7A. Other decisions construing § 7A have similarly involved what were unquestionably amendments to zoning by-laws. Smith v. Board of Appeals of Needham, 339 Mass. 399, 159 N.E.2d 324 (1959). McCarthy v. Board of Appeals of Ashland, 354 Mass. 660, 241 N.E.2d 840 (1968). Vazza v. Board of Appeals of Brockton, 359 Mass. 256, 269 N.E.2d 270 (1971). Nyquist v. Board of Appeals of Acton, 359 Mass. 462, 269 N.E.2d 654 (1971). In the present case, by contrast, the defendants contend that the 1971 by-law did not constitute an amendment to the zoning by-law but rather was adopted under the separate police power of the town. As mentioned, the record is bare as to the manner in which the 1971 by-law was acted upon, though it was asserted at argument by town counsel that the strict procedures required by the Zoning Enabling Act for adoption of an amendment to the zoning by-law were not complied with. See G.L. c. 40A, §§ 6, 7.

Given the absence of information in the record as to whether the 1971 by-law was adopted as an amendment to the zoning by-law in accordance with the technical requirements of the enabling act, we are forced to approach this case from two directions. First, we consider the possibility, contrary to the town counsel's assertion, that the 1971 by-law was adopted as an amendment to the zoning by-law. Were that the case there would be no doubt that G.L. c. 40A, § 7A, bears on the applicability of the 1971 by-law to the plaintiff's property. As argued by the defendants, however, a question would remain as to whether the protection afforded by § 7A against changes in the 'use of the land' is broad enough to encompass the type of change brought about by the 1971 by-law. We turn now to a discussion of that question.

In arguing that § 7A does not cover the plaintiff's situation, the defendants rely on Bellows Farms, Inc. v. Building Inspector of Acton, supra. It was there pointed out that where plans are submitted which do not require approval under the subdivision control law, only the second paragraph of § 7A applies. Consequently, the protection afforded relates only to zoning amendments affecting the 'use of the land' and does not encompass other changes in the zoning by-law. On this basis, the defendants contend that § 7A does not protect the plaintiff because the 1971 by-law does not preclude the use of the plaintiff's land for a trailer park. The defendants emphasize that the plaintiff may still be able to operate a trailer park if any one of the previous licensees ceases operating.

This argument represents a misreading of the Bellows Farms case. The amendments to the zoning by-law involved in that case had imposed new limitations on the permissible intensity of apartment units on the plaintiffs' land and had also required that use of the site for multiple dwelling units be subject to prior approval of the site plan by the board of selectmen. One consequence was to reduce the number of allowable units on the site from 435 to 203. The court concluded that the amendments applied to the plaintiffs' land notwithstanding the plaintiffs' claim of protection under G.L. c. 40A, § 7A. In so ruling, the court emphasized that these changes in the zoning by-law 'did not constitute or otherwise amount to a total or virtual prohibition of the use of the locus for apartment units.' Id. at ---, b 303 N.E.2d at 733. The court further observed that the amendments did not 'impede the reasonable use of the plaintiffs' land for apartment unit purposes.' Id. at ---, c 303 N.E.2d at 733.

The facts in the instant case contrast sharply with the circumstances in the Bellows Farms case. There is nothing in the record to suggest that any one of the holders of existing trailer park licenses in the town intends to cease operating in the near future. It is conceivable that one such licensee could fail to receive a renewal of his license at the end of the year under G.L. c. 140, § 32B, but that possibility is speculative at best. Thus it would be unrealistic to deny that the 1971 by-law constitutes at the least a 'virtual prohibition' of the use of the land for trailer park purposes and also 'impede(s) the reasonable use of the . . . land' for those purposes. Accordingly, we conclude that if the 1971 by-law was adopted as an amendment to the zoning by-law in compliance with the procedural requirements of the enabling act, the provisions of G.L. c. 40A, § 7A, apply so as to protect the plaintiff from the restrictions imposed by the 1971 by-law. 2

2. The alternative possibility is that the defendants in fact did not comply with the procedural requirements of the Zoning Enabling Act. This circumstance is alleged by the defendants in arguing that § 7A is inapplicable to the plaintiff because § 7A protects only against changes in the zoning by-law and the 1971 by-law was an exercise of the police power, not the zoning power. We turn, then to consideration of this theory advanced by the defendants.

Authority to regulate trailer parks in Massachusetts has generally been derived from one of two sources. The first is G.L. c. 140, §§ 32A--32Q, which require the licensing of any 'mobile home park' operated in the Commonwealth. Under G.L. c. 140, § 32B, the town board...

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