Smith v. Building Com'r of Brookline

• Decision Date: 16 May 1975
• Citation: 328 N.E.2d 866,367 Mass. 765
• Parties: Stewart J. SMITH v. BUILDING COMMISSIONER OF BROOKLINE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 866

328 N.E.2d 866

367 Mass. 765

Stewart J. SMITH v. BUILDING COMMISSIONER OF BROOKLINE et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Feb. 5, 1975.

Decided May 16, 1975.

Lawrence D. Shubow, Boston (Morris S. Shubow and Clyde D. Bergstresser, Boston, with him), for Stewart J. Smith.

Kenneth H. Zimble, Boston (Joel Z. Eigerman and Rudolph Kass, Boston, with him), for Brookline Housing Associates and another.

David M. Roseman, Town Counsel, Boston, for Building Commissioner of Brookline and another, also with him.

Raymond V. Picard, Asst. U.S. Atty., for Secretary of the U.S. Dept. of Housing and Urban Development.

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

HENNESSEY, Justice.

On August 28, 1974, this court decided the case of SMITH V. BOARD OF APPEALS OF BROOKLINE, --- MASS. --- , 316 N.E.2D 501 (1974)^A (Smith I). In that case we affirmed a decree of the Superior Court annulling a decision of the board of appeals of the town of Brookline (board) which on appeal by the plaintiff had denied a petition by him for revocation of a building permit issued for an apartment building located at 175 Freeman Street in Brookline. The effect of our decision was to invalidate the building permit as issued and to require that the permit be reviewed and the building brought into compliance with certain amendments (the 1971 amendments) of the zoning by-law, notice of hearing on which had been given and which had been adopted prior to issuance of the permit. ¹ These amendments related to environmental design review and parking requirements.

The issues presented in this case (Smith II) are: (1) whether the building must comply with amendments to the zoning by-law adopted pendente lite, that is during the appeals process in Smith I see footnote 5; (2) whether there may be partial occupancy of the building pending resolution of the matters contested in Smith I; and (3) whether a single justice of this court properly acted within his discretion in entering a declaratory judgment on these matters. The single justice, in issuing his declaratory judgment, ruled that zoning amendments adopted subsequent to the date of the issuance of the building permit contested in Smith I did not affect the building and he further ruled that, subject to certain conditions, limited occupancy of the building was permissible. The plaintiff appeals from this decision.

The procedural history of this litigation is somewhat complex; we set forth from the agreed statement of facts those proceedings and dates necessary to an understanding of the claims raised in this appeal. The first step in bringing the appeal in Smith I was commenced on June 6, 1972, when Smith filed a petition before the board to revoke a building permit which had been granted on May 26, 1972. An appeal by Smith from an adverse decision by the board was taken to the Superior Court, which court on August 10, 1973, rendered its final decree annulling the action of the board. Oral argument on appeal was heard in this court on May 13, 1974. On July 2, 1974, by petition of the owner, and while decision on Smith I was still pending in this court, the building commissioner of Brookline issued a temporary certificate of occupancy for 205 apartments in the building. The plaintiff on July 23, 1974 (Smith I had not at this point been decided by this court), brought the present action applying to a single justice in the county court for injunctive relief to bar the occupancy of the building allowed by the temporary certificate, pending the outcome of the appeal in Smith I. Action on the injunction by an agreement of the parties, which apparently was not filed with the court, was held in abeyance. As noted, on August 28, 1974, this court, in Smith I, decided against the board and held the building to be subject to environmental design review and parking restrictions. Subsequent to the date of decision in Smith I the Brookline Housing Associates ² (the owner) was granted leave to intervene in Smith II and by a motion joined as parties defendant James T. Lynn, as he is the Secretary of the United States Department of Housing and Urban Development, the members of the board and the town of Brookline. ³ Pratt and the owner filed an answer to the original complaint for injunctive relief and filed a counterclaim which sought a declaration that the building, while subject to the 1971 amendments of environmental design review and parking restrictions, was not subject to amendments notice of hearing on which was given and which were adopted after issuance of the building permit of May 26, 1972, ⁴ challenged in Smith I. As noted, the single justice held in favor of the board, ruling that the amendments subsequent to May 26, 1972, did not apply and that partial occupancy was permissible. We affirm that judgment.

Since the propriety of entering the declaratory judgment herein goes to our jurisdiction to address the merits, we turn to that issue first. The plaintiff contends that this is not a proper case for the granting of declaratory relief, and that the single justice erred in rendering such an opinion. The plaintiff submits that there are factual uncertainties outstanding and that given these 'speculative' matters, a declaratory judgment will not perminate the controversy between the parties.

We are not persuaded by these contentions. While it is true that a declaratory judgment will not terminate finally and completely all issues, this case is sufficiently close to the analogous situation in Belfer v. Building Commr. of Boston, --- Mass. ---, --- ^b, 294 N.E.2d 857 (1973), wherein we allowed declaratory relief. We also note that our scope of review on this question is not whether the single justice should or should not have exercised his discretion, but whether the grant of a declaratory judgment was an abuse of discretion. We think it clearly was not.

We turn next to the issue raised by the counterclaim, to wit, whether the building is subject to and must be brought in compliance with amendments to the town's zoning by-law, notice of hearing on which was given and which were adopted during the pendency of the appeal in Smith I. ⁵ The board in its decision of September 30, 1974, by the remand in Smith I, ⁶ concluded that 'there is nothing in the (court's) decisions to suggest we must apply the present zoning bylaw (as amended) to this project. In the absence of a direction to do so, we are reluctant to impose such a penalty, which in this case would amount to a forfeiture.' That administrative decision on a matter such as this is, of course, not binding on this court. Cf. Selectmen of Framingham v. Civil Serv. Commn., --- Mass. ---, --- ^c, 321 N.E.2d 649 (1974). We apply our independent judgment to this issue.

The substantive statutory provisions which appear to have relevance to this issue are G.L. c. 40A, §§ 5 and 11. However, we agree with the conclusion of the single justice that these sections are not precisely on point and, read separately, offer no direct answer to this question which we perceive to be one of first impression.

Section 5, as amended through St.1969, c. 572, provides in pertinent part that '(e)xcept as provided in section eleven, a zoning ordinance or by-law or any amendment thereof shall not apply to existing buildings or structures.' However, as the single justice found, it is quite clear that in order to fall within the protection of § 5, the building must lawfully exist before the fact and a building constructed under an allegedly unlawful permit cannot be said to exist lawfully. Cf. Opinion of the Justices, 234 Mass. 597, 606, 127 N.E. 635 (1920). Moreover, at the time the contested zoning by-law amendments were adopted, it appears that the building was not an existing structure but was in the process of construction. Cf. Brett v. Building Commr. of Brookline, 250 Mass. 73, 81, 145 N.E. 269 (1924).

Of more immediate relevance is § 11 which provides, inter alia: '(I)n a town, no zoning by-law or amendment thereof shall affect any permit issued or any building or structure lawfully begun before notice of hearing before the planning board . . . provided, that construction work under such a permit is commenced within six months after its issue, and the work, whether under such permit or otherwise lawfully begun, proceeds in good faith continuously to completion.' However, as the single justice noted, 'What § 11 does not state is what happens if a permit which is issued or a building which is apparently lawfully commenced is later held, respectively, to have been improperly issued or unlawfully commenced.'

Thus, the situation presented here falls between the lines of what may be considered the saving clause of § 11. The plaintiff's position is that, since the permit granted on May 26, 1972, has been determined to be defective by this court's decision in Smith I, that permit is null and void and that consequently there is no outstanding permit. Thus, the plaintiff submits, the owner is entitled to no protection from subsequent zoning by-law amendments and the owner must apply for a new permit subject to the currently existing zoning by-law as amended. ⁷

We are not persuaded by this line of reasoning for it rests on the assumption that the only course open to the board following our decision in Smith I was to revoke the May 26, 1972, permit as illegally granted ab initio. On the contrary, the decision in Smith I did not compel ex post facto revocation of the permit but only held that the project must conform to the 1971 amendments to the zoning by-law.

The final decree of the Superior Court, affirmed in Smith I, annulled the decision of the board on the plaintiff's appeal denying his petition to revoke the building permit; the decree did not annul the building permit itself. Where either the trial or appellate court has desired to effect a particulr result, it may direct that specific acts be taken in...