Vazza v. Board of Appeals of Brockton

Decision Date12 April 1971
Citation269 N.E.2d 270,359 Mass. 256
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
PartiesRichard R. VAZZA, trustee, v. BOARD OF APPEALS OF BROCKTON.

Augustus P. Vitali, Dedham, for plaintiff.

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

Before TAURO, C.J., ad CUTTER, SPIEGEL, REARDON and QUIRICO, JJ.

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 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 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 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 question could be used for apartment houses. The effect of § 7A was that the land could continue to be used for that purpose for three years thereafter, to December 21, 1963, notwithstanding the amendment to the ordinance on August 6, 1962, barring apartment houses in that location. Smith v. Board of Appeals of Needham, 339 Mass. 399, 159 N.E.2d 324. McCarthy v. Board of Appeals of Ashland, 354 Mass. 660, 241 N.E.2d 840.

2. Section 7A was amended by St.1961, c. 435, § 2, effective August 3, 1961, to read that the 'provisions of the (zoning) ordinance or by-law in effect at the time of the submission of the first submitted (subdivision) plan (whether preliminary or definitive) shall govern the land shown on such approved definitive plan for a period of five years from the date of such approval nothwithstanding any other provision of law' (emphasis supplied). Thus, if this 1961 amendment to § 7A applied to the present case, the land in question could continue to be used for apartment house purposes until December 21, 1965, on the basis of the plan approved on December 21, 1960. Statute 1961, c. 435, § 2, contained no provision for its retroactive application to plans approved before its effective date. 1 In Building Inspect of Acton v. Board of Appeals of Action, 348 Mass. 453, 204 N.E.2d 296, where the three year period provided by the original version of § 7A had expired on September 23, 1960, we held that the later enacted St.1961, c. 435, § 2, which became effective on August 3, 1961, did not apply retroactively. We said: 'The substantive rights of the owners of those losts (in litigation) and of owners of land in the area would have been affected if St.1961, c. 435, § 2 (when it became effective nearly a year later), had reinstated retroactively the inapplicability of the 1960 by-law amendments to the lots. At least in the absence of very clear statutory language, we do not apply legislation retroactively, in such a manner as to affect substantive rights.' See Doliner v. Planning Bd. of Millis, 349 Mass. 691, 696--698, 212 N.E.2d 460.

Although the three year period provided by § 7A had not expired in the case before us when St.1961, c. 435, § 2, took effect, the retroactive application of the amendment in this case would as much affect substantive rights of landowners for an additional two year period as it would have in the Acton case. In the Acton case the retroactive application of the 1961 amendment would have affected substantive rights for the limited period from August 3, 1961 (effective date of St.1961, c. 435, § 2) to September 23, 1962 (five years after approval of the subdivision plan). Its retroactive application in the present case would add two full years of effect on substantive rights by extending the three year period expiring on December 21, 1963, to a new expiration date of December 21, 1965. We conclude that St.1961, c. 435, § 2, did not apply retroactively in this case, but our decision thereon does not affect the ultimate decision for reasons hereinafter stated.

3. Even if the amendment made by St.1961, c. 435, § 2, were applied retroactively to the approval of the plan in question on December 21, 1960, that alone would not entitle the plaintiff to relief because the five year period allowed by that amendment expired on December 21, 1965, almost two years before the plaintiff applied for building permits. The plaintiff makes the further contention that he is entitled to the benefit of St.1965, c. 366, § 1, which amended § 7A to read that the 'provisions of the (zoning) ordinance or by-law in effect at the time of the submission of the first submitted (subdivision) plan (whether preliminary or definitive)...

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12 cases
  • M. DeMatteo Const. Co. v. Board of Appeals of Hingham
    • United States
    • Appeals Court of Massachusetts
    • September 3, 1975
    ...adjudications in proceedings under G.L. c. 40A, § 21, brought by landowners were made in, e.g., Vazza v. Board of Appeals of Brockton, 359 Mass. 256, 269 N.E.2d 270 (1971), and Glacier Sand & Ston Co. Inc. v. Board of Appeals of Westwood, 362 Mass. 239, 285 N.E.2d 411 (1972), and Woods v. N......
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    • United States State Supreme Judicial Court of Massachusetts Supreme Court
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  • Rayco Inv. Corp. v. Board of Selectmen of Raynham
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    • July 22, 1975
    ...399, 159 N.E.2d 324 (1959). McCarthy v. Board of Appeals of Ashland, 354 Mass. 660, 241 N.E.2d 840 (1968). Vazza v. Board of Appeals of Brockton, 359 Mass. 256, 269 N.E.2d 270 (1971). Nyquist v. Board of Appeals of Acton, 359 Mass. 462, 269 N.E.2d 654 (1971). In the present case, by contras......
  • Kitras v. Zoning Adm'R of Aquinnah
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    ...run not from the date of approval but `from the date of the endorsement of such approval'"). See also Vazza v. Board of Appeals of Brockton, 359 Mass. 256, 263-264, 269 N.E.2d 270 (1971) (reciting history of amendments to zoning freeze provision). Compare note 6, supra (under current versio......
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1 books & journal articles
  • Chapter 40B should buy the farm.
    • United States
    • Suffolk University Law Review Vol. 42 No. 1, December 2008
    • December 22, 2008
    ...Cost, supra note 91, at 535 (noting courts' lack of concern for due process rights). (151.) See Vazza v. Bd. of Appeals of Brockton, 269 N.E.2d 270, 274 (Mass. 1971) (reasoning purchasers entitled to rely on zoning ordinances); Witten, Cost, supra note 91, at 534 (citing Vazza for inconsist......

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