Cicatelli v. Board of Appeals

786 N.E.2d 1216, 57 Mass. App. Ct. 799, 2003 Mass. App. LEXIS 468
CourtMassachusetts Appeals Court
DecidedApril 17, 2003
DocketNo. 01-P-1054
StatusPublished

This text of 786 N.E.2d 1216 (Cicatelli v. Board of Appeals) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cicatelli v. Board of Appeals, 786 N.E.2d 1216, 57 Mass. App. Ct. 799, 2003 Mass. App. LEXIS 468 (Mass. Ct. App. 2003).

Opinion

Laurence, J.

The plaintiff, Steven L. Cicatelli, appeals a judgment of the Land Court affirming a decision of the board of appeals of Wakefield (board). The board had upheld the Wakefield building inspector’s denial of the plaintiff’s applications for permits to build houses on two lots. The building inspector had based his denials on his determination that the proposed construction would contravene a recent zoning by-law amendment. The plaintiff asserts that the amendment cannot [800]*800lawfully be applied to Ms lots, because they were protected by the three-year zomng “freeze” of G. L. c. 40A, § 6, sixth par.2 On the undisputed facts, we affirm.

On September 10, 1996, Joseph and Mary Nigro, the plaintiff’s predecessors in title, submitted a plan to the planmng board for endorsement, pursuant to G. L. c. 41, § 81P, that “approval under the subdivision control law [was] not required” (ANR plan). The planning board properly endorsed the plan (wMch created four lots, numbered 1-4, out of a single parcel, all of wMch lots had frontage on a public way, see G. L. c. 41, § 81L) on September 30, 1996. (See Appendix.) At the time of the endorsement, a house stood on what became lot 2. The other three lots were undeveloped.

On November 12, 1996, a zoning by-law amendment, referred to as the “front-to-back” amendment (now codified as § 190-35 of the town zoning by-laws), was adopted by town meeting. It provided, in pertinent part, that “[n]o lot on wMch any building is located shall be divided or subdivided in such a way that the original front yard of such existing building shall face the rear yard ... of any proposed lot or lots.”

The Nigros subsequently applied for and were issued a building permit to construct a house on lot 1. On August 17, 1997, however, the board demed their request for a variance from the front-to-back amendment wMch would have allowed the Nigros to build houses on lots 3 and 4. The Nigros sold lots 3 and 4 to the plaintiff in 1998.

On April 26, 1999, well witMn three years of the submission of the ANR plan, the plaintiff filed applications for building permits to construct houses on lots 3 and 4, asserting that such uses were protected by the three-year zoning “freeze” of G. L. c. 40A, § 6, sixth par. The building inspector denied the applications as contrary to the front-to-back amendment. On June [801]*80129, 1999, following a hearing on the plaintiff’s appeal, the board upheld the building inspector’s denials. It concluded that the front-to-back amendment was a dimensional and not a use regulation and was therefore applicable to the land shown on the ANR plan even within the three-year freeze period.3

On the plaintiff’s appeal pursuant to G. L. c. 40A, § 17, a judge of the Land Court affirmed the board’s decision. The judge agreed that the front-to-back amendment was a dimensional regulation, the application of which to the locus did not result in a de facto use regulation violative of the statutory zoning freeze. Her conclusion rested on the premise that the impact of the amendment was to be gouged with respect to the subdivided parcel as a whole and not the individual lots. Such an analysis revealed that application of the amendment did not unreasonably impair the plaintiff’s right to develop his land or negate the protection afforded by G. L. c. 40A, § 6, sixth par. The judge buttressed her holding by reference to the language of the statute, its legislative history, and Supreme Judicial Court precedent.

Having carefully considered the record and the parties’ briefs, we conclude there is no basis to disturb the Land Court judge’s thoughtful decision, the reasoning of which, summarized below, we adopt.

“The statutory zoning freeze provides landowners with protection from amendments to zoning laws that would unpredictably and unfairly burden the development of their land.” Heritage Park Dev. Corp. v. Southbridge, 424 Mass. 71, 76 (1997). On its face, the front-to-back amendment is a dimensional regulation and not a regulation of the “use of the land,” so that it is prima facie applicable to lots 3 and 4 notwithstanding the statutory freeze.

The plaintiff argues, however, that the amendment is a de facto use regulation. A dimensional regulation amounts to a de facto use regulation if its impact as a practical matter eliminates or virtually nullifies a protected use (here residential [802]*802development). See Bellows Farms, Inc. v. Building Inspector of Acton, 364 Mass. 253, 260-261 (1973); Cape Ann Land Dev. Corp. v. Gloucester, 371 Mass. 19, 22, 24 (1976), S.C., 374 Mass. 825 (1978).

The scope of this principle is, however, narrow, as demonstrated by the Bellows Farms case. There, the plaintiffs submitted an ANR plan at a time when applicable zoning laws allowed them to construct a maximum of 435 residential apartments. Soon thereafter, the town passed dimensional zoning amendments relating to off-street parking, intensity of use standards, and site plan approvals. The amendments effectively reduced the number of buildable apartments to 203. Bellows Farms, Inc. v. Building Inspector of Acton, 364 Mass. at 260. Despite the amendments’ effecting a substantial reduction in the number of buildable units, the court concluded that the zoning amendments were not de facto use regulations, because they “did not constitute or otherwise amount to a total or virtual prohibition of the use of the locus for apartment units,” a significant number of which could still be constructed. Ibid.4 That a dimensional regulation results in a reduction in the scope or extent of a plan’s protected use — even a great reduction, as in Bellows Farms — does not, therefore, warrant its characterization as a de facto use regulation undermining the protection of the G. L. c. 40A, § 6, sixth par., zoning freeze.5

The judge rejected the plaintiff’s contention that the board’s [803]*803application of the front-to-back amendment revealed its true nature as a de facto use regulation because it imposed a “virtual or total prohibition” of the protected residential use of lots 3 and 4. The judge reasoned that the phrase “use of the land shown on [the] plan” in G. L. c. 40A, § 6, sixth par. (see note 2, supra), meant that the zoning freeze attached to the original undivided parcel of land as a whole, rather than providing use protection for the individual subdivided lots. Consequently, the amendment precluded residential development on only half, not all, of that parcel. While acknowledging that the issue of the meaning of the words “use of the land” in § 6, sixth par., had not been expressly addressed in any appellate decision, the judge appropriately looked for support for her construction to the Supreme Judicial Court’s interpretation of essentially identical language used in G. L. c. 40A, § 6, fifth par.

In Massachusetts Broken Stone Co. v. Weston, 430 Mass. 637, 640-641 (2000), the court held that the eight-year zoning freeze for definitive subdivision plans under G. L. c. 40A, § 6, fifth par.,* ****6 applies to the entirety of the land subject to the approved plan, not to the particular lots shown thereon, even if the original subdivision is significantly altered after its approval. [804]

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Perry v. Building Inspector of Nantucket
350 N.E.2d 733 (Massachusetts Appeals Court, 1976)
Green v. Board of Appeals of Provincetown
536 N.E.2d 584 (Massachusetts Supreme Judicial Court, 1989)
Beeler v. Downey
442 N.E.2d 19 (Massachusetts Supreme Judicial Court, 1982)
Cape Ann Land Development Corp. v. City of Gloucester
353 N.E.2d 645 (Massachusetts Supreme Judicial Court, 1976)
Radcliffe College v. City of Cambridge
215 N.E.2d 892 (Massachusetts Supreme Judicial Court, 1966)
Bellows Farms, Inc. v. Building Inspector of Action
303 N.E.2d 728 (Massachusetts Supreme Judicial Court, 1973)
Stampfl v. ZONING BOARD OF APPEALS OF NORWOOD
599 N.E.2d 646 (Massachusetts Appeals Court, 1992)
Plymouth County Nuclear Information Committee, Inc. v. Energy Facilities Siting Council
372 N.E.2d 229 (Massachusetts Supreme Judicial Court, 1978)
Cape Ann Land Development Corp. v. City Council
373 N.E.2d 218 (Massachusetts Supreme Judicial Court, 1978)
Clark Equipment Co. v. Massachusetts Insurers Insolvency Fund
666 N.E.2d 1304 (Massachusetts Supreme Judicial Court, 1996)
Heritage Park Development Corp. v. Town of Southbridge
674 N.E.2d 233 (Massachusetts Supreme Judicial Court, 1997)
Massachusetts Broken Stone Co. v. Town of Weston
430 Mass. 637 (Massachusetts Supreme Judicial Court, 2000)
Samson v. San-Land Development Corp.
17 Mass. App. Ct. 977 (Massachusetts Appeals Court, 1984)

Cite This Page — Counsel Stack

Bluebook (online)
786 N.E.2d 1216, 57 Mass. App. Ct. 799, 2003 Mass. App. LEXIS 468, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cicatelli-v-board-of-appeals-massappct-2003.