Smith v. Board of Appeals of Brookline

• Decision Date: 28 August 1974
• Citation: 366 Mass. 197,316 N.E.2d 501
• Parties: Stewart J. SMITH v. BOARD OF APPEALS OF BROOKLINE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 501

316 N.E.2d 501

366 Mass. 197

Stewart J. SMITH v. BOARD OF APPEALS OF BROOKLINE et al.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued May 13, 1974.

Decided Aug. 28, 1974.

Kenneth H. Zimble, Boston, for James, D. Pratt.

David, M. Roseman, Boston, for the Board of Appeals of Brookline.

Rudolph Kass, Boston, for the Brookline Housing Associates.

Lawrence D. Shubow, Boston, for plaintiff.

Before TAURO, C.J., and REARDON, HENNESSEY, KAPLAN and WILKINS, JJ.

REARDON, Justice.

A final decree was entered in the Superior Court annulling a decision of the board of appeals of Brookline (board) which had denied the plaintiff's appeal from the granting of a building permit by the building commissioner of Brookline. The board, the Brookline Housing Associates (the owner), and James D. Pratt ¹ brought this appeal. The trial judge made findings of fact, rulings of law, an order for decree, and a report of material facts. The evidence is reported.

The building which is the subject of this dispute was planned as a nine-story, 411 unit apartment building located at 175 Freeman Street in Brookline. It is agreed that the building does not conform to two new provisions of the town zoning by-law concerning environmental design review and parking requirements. The defendants claim that notwithstanding this nonconformance the building is protected under G.L. c. 40A, § 11, inserted by St.1954, c. 368, § 2, since it was constructed pursuant to a 'permit issued . . . before notice of hearing before the planning board . . . (on the amendments to the zoning by-law adding the relevant provisions and) construction work under such a permit . . . (was) commenced within six months after its issue, and the work . . . (proceeded) in good faith continuously to completion . . ..' The notice of the hearing before the planning board was given on October 14, 1971. The date on which the building permit was issued is in dispute.

In outline, the relevant sequence of events was as follows. On December 2, 1968, the board granted to the owner's predecessor a special permit allowing construction of an apartment building (different in dimension and design from the one which was eventually built) which did not conform to the height and floor area ratio requirements of the zoning by-law. On November 2, 1970, the then owner filed an application for a building permit for an apartment building based on plans which took advantage of the 'bonuses' (dimensional variations from the zoning by-law) of the 1968 special permit. On November 9, 1970, a suit was instituted challenging the 1968 special permit. On January 28, 1971, the building commissioner responded to the permit application in a letter which, under authority of § 207d of the Brookline building code, gave permission 'for excavation, footings and the erection of foundation forms,' and which noted that upon verification of the location of the foundation and compliance with the zoning by-law and building code 'a permit may issue for completion.' Section 207d provides for issuance of 'excavation permits' under which the holder 'shall proceed at his own risk and without assurance that a permit for the super-structure will be granted.' On June 15, 1971, the commissioner wrote a practically identical letter noting it was 'an answer to the request of June 11, 1971 for the extension of the excavation permit.' In August, 1971, at roughly the same time as the transfer to the present owners, new plans were submitted to the chief building plan examiner and building inspector of Brookline. These plans were for the building upon which construction was eventually begun and did not take advantage of the 1968 special permit provisions. After reviewing these plans the building inspector gave oral permission to proceed with construction. On October 14, 1971, notice was given of a hearing before the planning board on the proposed new zoning provisions. On October 20, 1971, another application for a building permit was filed based on the new plans. On the same day the commissioner issued another letter substantially identical to those of January 28, 1971, and June 15, 1971. On December 13, 1971, the commissioner replied to a December 9, 1971, request for a six month's extension of the permit. Instead he stated that 'the time of starting this project may be extended for a period of 90 days from this date.' On May 26, 1972, the building commissioner wrote a letter in which he stated that he had granted a permit to construct the apartment building. On the same date he signed the reverse side of the October, 1971, permit application under the heading, 'Permit Granted.' On June 2, 1972, the building department sent notice of the application to other municipal departments.

For the building to have the protection of G.L. c. 40A, § 11, it must appear that a permit was issued prior to October 14, 1971, and that construction under that permit commenced within six months of its issuance. There is serious question, given the course of events described, whether either the letter of January 28, 1971, or the letter of June 15, 1971, each issued under authority of § 207d, was the type of permit contemplated by the statute. ² However, we need not decide either whether such excavation permits were sufficient to win the protection of the statute or whether the subsequent submission of changed plans and new permit application indicate that these permits were abandoned. Even if we assume arguendo that the letter of June 15, 1971, was in fact such a permit for the building as to come under G.L. c. 40A, § 11, no construction work was commenced within six months of its issuance. The trial judge found "actual construction work' was not commenced until after December 15, 1971.' She further found that there was no excavation work before the middle of December. Only one witness testified that he observed excavation on the site prior to December 15, 1971, and the trial judge 'based upon . . . (her) observations of the witnesses and their testimony' found that the testimony was 'vague and not credible.' The documentary evidence on the matter was in conflict on this point but there was sufficient evidence to support the judge's findings. It is, of course, our duty to examine the evidence and to make our own judgment upon it. But we are to accord due weight to the trial judge's findings and will not reverse them unless they are plainly wrong. Allen v. Moushegian, 320 Mass. 746, 752, 71 N.E.2d 393 (1947); Richmond Bros., Inc. v. Westinghouse Bdcst. Co., Inc., 357 Mass. 106, 109, 256 N.E.2d 304 (1970). On the evidence, we cannot say that the judge was...