Roland Lavoie Const. Co. v. Building Inspector of Ludlow

• Decision Date: 28 June 1963
• Citation: 346 Mass. 274,191 N.E.2d 697
• Parties: ROLAND LAVOIE CONSTRUCTION CO., Inc. v. BUILDING INSPECTOR OF LUDLOW.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 697

191 N.E.2d 697

346 Mass. 274

ROLAND LAVOIE CONSTRUCTION CO., Inc. v. BUILDING INSPECTOR OF LUDLOW.

Supreme Judicial Court of Massachusetts, Hampden.

Argued May 28, 1963.

Decided June 28, 1963.

Eugene L. Tougas, Waltham, for petitioner.

Manuel Moutinho, Jr., Ludlow, and Charles R. Clason, Springfield, for respondent.

Before WILKINS, C. J., and SPALDING, WHITTEMORE, CUTTER and KIRK, JJ.

WILKINS, Chief Justice.

This petition for a writ of mandamus seeks an order that the respondent building inspector of the town of Ludlow issue a permit for the construction of a dwelling on lot 20 in Electric Park on Power Avenue owned by the petitioner. Most of the facts were agreed. The judge heard two witnesses and made a report of the material facts found by him. The evidence is reported. From an order that the petition be dismissed the petitioner appealed.

The lot contains 10,378 square feet, and is now shown on a plan recorded in the Hampden registry of deeds and entitled, 'Plan Showing Section No. 3 A portion of a Subdivision of Land sit. in Ludlow, Mass. called Electric Park.' On November 10 and 17, 1960, there were published notices of a public hearing which was held by the planning board on December 3, 1960, concerning a proposed amendment to the zoning by-law which would increase the area of a lot on which a residence might be built. The lot was shown on a preliminary subdivision plan submitted to the planning board on January 23, 1961. Notice of the submission was filed with the town clerk of February 10, 1961, on which date a special town meeting adopted the amendment to the zoning by-law. The amendment was approved by the Attorney General on July 5, 1961, and 'became effective shortly thereafter' upon publication as required by G.L. c. 40, § 32 (as amended through St.1952, c. 337). On August 14, 1961, a definitive plan evolving from the preliminary plan was submitted by the petitioner to the planning board, and notice of its submission was filed with the town clerk on August 19, 1961. An extension of time for action by the board was agreed upon, and on October 31, 1961, the planning board approved the definitive plan, which has been recorded in the registry of deeds. ¹

The area and other characteristics of lot 20 comply with the provisions of the zoning by-law in effect on January 23, 1961, the date of the submission of the preliminary plan to the planning board. Exactly one year later on January 23, 1962, the petitioner filed with the respondent an application for a permit to build a wooden frame dwelling on lot 20. This was refused in letters dated February 5 and 15, 1962, on the ground that the 'development of Electric Park does not comply with' G.L. c. 40A, § 7A, and c. 41, § 81S. ² Later the respondent 'verbally' refused to issue the permit because the area of the lot did not conform to the amended zoning by-law.

The judge found that the petitioner failed to furnish the board of health with a copy of the preliminary plan. This finding was not plainly wrong. The reported evidence would not permit a finding that it was so filed.

The judge ruled that such failure to file was a violation of G.L. c. 41, 's 81.' The intended reference was to § 81S. The judge in his ruling, and the respondent in refusing the permit, must have referred to § 81S, as amended through St.1959, c. 189, which reads: 'Any person, before submitting his definitive plan for approval, may submit to the planning board and to the board of health, a preliminary plan, and shall give written notice to the clerk of such * * * town * * * that he has submitted such a plan. * * * Within sixty days after submission of a preliminary plan each board shall tentatively approve such preliminary plan * * * or shall disapprove * * *.'

On January 23, 1961, when the preliminary plan was filed with the planning board, G.L. c. 40A, § 7A, was as amended through St.1960, c. 291. The material portion is found in St.1959, c. 221, entitled, 'An Act relative to the effect of the adoption or amendment of zoning ordinances or by-laws on certain land shown on plans filed under the subdivision control law,' which reads: 'When a preliminary plan referred to in section eighty-one S of chapter forty-one of the General Laws has been submitted to a planning board, and written notice of the submission of such plan has been given to the * * * town clerk, the land shown on such preliminary plan and on the definitive plan evolved therefrom shall be governed by the zoning * * * by-law in effect at the time of the submission of the preliminary plan while...