Selectmen of Ayer v. Planning Bd. of Ayer

• Decision Date: 23 October 1975
• Citation: 336 N.E.2d 388,3 Mass.App.Ct. 545
• Parties: SELECTMEN OF AYER v. PLANNING BOARD OF AYER and others (and two companion cases 1 ).
• Court: Appeals Court of Massachusetts

Page 388

336 N.E.2d 388

3 Mass.App.Ct. 545

SELECTMEN OF AYER

v.

PLANNING BOARD OF AYER and others (and two companion cases

¹

).

Appeals Court of Massachusetts, Middlesex.

Argued Feb. 11, 1975.

Decided Oct. 23, 1975.

Harry H. Caviston, Boston, and Thomas E. Lilly, Town Counsel, Ayer, for the Selectmen of Ayer and others.

J. Owen Todd, Boston (James C. Donnelly, Jr., Worcester, with him), for Breakthrough Corp. and another.

Robert U. Holden, Ayer, for the Planning Board of Ayer.

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

ARMSTRONG, Justice.

These three cases, two of which were consolidated for trial, involve attempts by two corporate developers to subdivide two parcels of land in the town of Ayer and to build multiple-unit residential buildings thereon. The developers filed preliminary subdivision plans on January 20, 1972, and March 3, 1972, which the planning board 'voted to accept' on April 18, 1972. The definitive plans which evolved from the preliminary plans were both filed on June 21, 1972. The planning board originally disapproved the definitive plans on August 16, 1972, for stated reasons but thereafter approved them on December 12, 1972. See G.L. c. 41, § 81U. The selectmen appealed from those approvals to the Superior Court under G.L. c. 41, § 81BB.

During the winter and spring of 1972 the town of Ayer was in the process of adopting an original zoning by-law. That by-law was approved by the Attorney General on April 11, 1972, and was last advertised on May 25, 1972. See G.L. c. 40, § 32. The by-law zoned the two parcels in question for single family residential use and required a building permit as a condition precedent to any construction.

On June 18, 1972, the developers commenced construction of an air-filled, balloon-wall structure apparently intended to be a temporary shelter for employees, equipment, and supplies to be used in the construction of the proposed multiple-dwelling-unit buildings. On June 22, 1972, the zoning enforcing officer under the new zoning by-law posted stop-work orders at the site for the stated reason that no building permit had been issued. There ensued cross actions by the developers and the zoning enforcing officer for declaratory and injunctive relief.

The selectmen's appeal under § 81BB and the cross actions are all here on appeals from judgments and a final decree favorable to the developers and the planning board and adverse to the selectmen and the zoning enforcing officer.

In the cross actions, the Superior Court correctly ruled that the subdivisions were exempt under G.L. c. 40A, § 7A, from the requirements of the zoning bylaw, provided that the approvals of the subdivisions should be sustained in the § 81BB appeal. See Chira v. Board of Appeals of Tisbury, --- Mass.App. ---, --- --- ^a, 333 N.E.2d 204 (1975). The sole contention now pressed in the cross actions is that the Superior Court erred in ruling that construction of a multiple-dwelling-unit building on each lot was permissible notwithstanding a planning board regulation which read:

'Not more than one dwelling designed or available for use for dwelling purpose shall be erected or placed or converted to use as such on any lot in a subdivision, or elsewhere in the town of Ayer, without the consent of the (Planning) Board. Such consent may be conditional upon the providing of adequate ways furnishing access to each site for such building, in the manner as otherwise required for lots within a subdivision.'

The language of this regulation is derived from G.L. c. 41, § 81Q, which reads in part:

'. . . Except in so far as it may require compliance with the requirements of existing zoning ordinances or by-laws, no rule or regulation shall relate to the size, shape, width, frontage or use of lots within a subdivision, or to the buildings which may be constructed thereon . . .. The rules and regulations may, however, provide that not more than one building designed or available for use for dwelling purposes shall be erected or placed or converted to use as such on any lot in a subdivision, or elsewhere in the city or town, without the consent of the planning board, and that such consent may be conditional upon the providing of adequate ways furnishing access to each site for such building, in the same manner as otherwise required for lots within a subdivision. . . .'

The ruling of the Superior Court was clearly correct. Through the type of regulation authorized by § 81Q, a planning board may limit the number of buildings which might be erected on a particular lot, but it may not limit the use of the lot to a single-family dwelling where there is no zoning by-law which...