Vazza v. Board of Appeals of Brockton

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: Before TAURO; QUIRICO
• Citation: 269 N.E.2d 270,359 Mass. 256
• Parties: Richard R. VAZZA, trustee, v. BOARD OF APPEALS OF BROCKTON.
• Decision Date: 12 April 1971

Page 270

269 N.E.2d 270 359 Mass. 256 Richard R. VAZZA, trustee,
v.
BOARD OF APPEALS OF BROCKTON. Supreme Judicial Court of Massachusetts, Plymouth. Argued Jan. 6, 1971.
Decided April 12, 1971.

[359 Mass. 257]

Page 271

Augustus P. Vitali, Dedham, for plaintiff.

Joseph I. Sousa, City Sol., for defendant.

Before [359 Mass. 256] TAURO, C.J., ad CUTTER, SPIEGEL, REARDON and QUIRICO, JJ.

[359 Mass. 257] QUIRICO, Justice.

This is an appeal under G.L. c. 40A, § 21, from a decision of the zoning board of appeals (board) of the city of Brockton upholding the action of the building inspector in denying the application of the plaintiff for permits to build four apartment houses. The case is before us on the plaintiff's appeal from a final decree of the Superior Court dismissing his bill of complaint.

The case was submitted to the Superior Court for decision [359 Mass. 258] on an agreement which recited that it 'set forth all of the facts relevant to the determination of this cause,' and was in effect a case stated. Since we now have before us everything which was before the trial judge, we are required to decide the questions of law involved, and the form of decree required, unaffected by his decision. Pitman v. Pitman, 314 Mass. 465, 475, 50 N.E.2d 69. Fiduciary Trust Co. v. Mishou, 321 Mass. 615, 631, 75 N.E.2d 3. Stamper v. Stanwood, 339 Mass. 549, 551, 159 N.E.2d 865. Fiduciary Trust Co. v. First Nat. Bank, 344 Mass. 1, 4, 181 N.E.2d 6.

We summarize the pertinent facts agreed upon. On March 22, 1960, the owner of the land in question submitted a preliminary plan for its subdivision with the planning board of Brockton and later submitted a definitive plan which was approved by the planning board on December 21, 1960. The planning board endorsed its approval on the latter plan on February 7, 1961. All requirements of law for the giving of notices and holding of hearings in connection with the approval of the plan were complied with, and a copy of the plan was filed or recorded with the Land Court records at the registry of deeds for Plymouth County.

From a date prior to March 22, 1960, and continuing on February 7, 1961, the land in question was in a 'Residence district' under the zoning ordinance of the city of Brockton, and the following uses were permitted in that district: 'Single-family dwellings, two-family dwellings, apartment or tenement houses.'

On August 6, 1962, the zoning ordinance was amended by striking out the use of

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land in a residence district for 'apartment or tenement houses' and limiting the use to '(s)ingle-family dwellings (and) two-family dwellings.' Since that date the land has continued to be classified in a manner which limits its use to single family and two family dwellings.

On November 22, 1967, the plaintiff entered into a written agreement to purchase twelve of the lots shown on the subdivision plan described above from the then owner. The agreement made the obligations of the parties thereto expressly contingent upon the plaintiff's obtaining building permits enabling him to construct four multi-family apartment[359 Mass. 259] houses on portions of the lots to be purchased. The plaintiff duly applied for the building permits on the same date. On November 27, 1967, the building inspector notified him that the applications were denied on the ground that the zoning ordinance did not permit the land in question to be used for apartment houses for occupancy by more than two families.

The plaintiff seasonably appealed the building inspector's denial of the application for the permits to the board under G.L. c. 40A, § 13. After the notice and hearing, the board voted unanimously to uphold the decision of the inspector and in due course it filed a written decision to that effect with the city clerk.

The sole question presented for our decision on these facts is whether the land in question could be used for multi-family apartment house purposes on November 22, 1967, notwithstanding the amendment to the zoning ordinance on August 6, 1962. The answer to this question is controlled by the language of G.L. c. 40A, § 7A, as amended several times prior to November 22, 1967, and upon our decision whether one or more of such amendments should be applied retroactively to the subdivision plan involved in this case. We shall consider the statute in its original and amended versions during the years in question.

1. Section 7A as originally added to c. 40A by St.1957, c. 297, read as follows: 'Notwithstanding any other provision of law, no amendment to any zoning ordinance or by-law shall apply to or affect any lot shown on a definitive subdivision plan for residences which has been previously approved by a planning board until a period of three years from the date of such approval has elapsed. * * *' Changes made by St.1959, c. 221, and St.1960, c. 291, did not change the language quoted above. When the planning board approved the plan on December 21, 1960, the land in...