This complaint was brought in the Land Court under the provisions of G. L. c. 185, §1(j 1/2) and G. L. c. 240, §14A in two counts - the first to determine the extent and validity of certain municipal zoning by-laws and the second to test the validity of a certain by-law regulating trailers. Under both counts the plaintiffs sought declaratory and injunctive relief for the named plaintiffs and the class of lot owners whom they purported to represent. [Note 1]
The defendant Town of West Brookfield answered denying the allegations in both counts and in addition pleading res judicata to the second count.
Trial was held on November 4, 5 and 8, 1976, and on May 5. 1977, with a stenographer duly sworn to record and transcribe the proceedings each time. During the trial, 59 exhibits were introduced into evidence, all of which are incorporated by reference herein for the purpose of any appeal, and thirteen witnesses testified. Several conferences were subsequently held among the attorneys and the Court, and additional detailed information was sought and received by the Court from the parties. A view of the locus was taken on April 5, 1977. Various conferences were held and finally oral arguments were heard on June 20, 1977. Final briefs were filed on August 1, 1977.
The Town has stipulated that Ware Road (Route 9) and Pierce Road are accepted town ways.
This difficult case involves a development in the Town of West Brookfield built around a small lake. As will appear herein, a large area was platted with roads and lots shown on a plan which was recorded prior to August 22, 1966. Except for Ware Road and Pierce Road which are accepted streets, the view taken by the Court showed that the roads were roughed out and are used in their roughed out, gravel condition today. The roads as laid out on the plan are 50 feet in width; as actually travelled, the roads are wide enough to permit the passing of two automobiles. The lots were developed by United Shorelines, Inc. and are now owned in large part, if not completely, by others than the developer. These lots were sold for the most part on the installment plan, with monthly payments of as little as $5.00 per month after a small down payment, with many of the purchasers taking several years to complete their payments before being deeded their lots. No public water or sewerage facilities are to be found in the development, or for that matter anywhere else in the town. The defendant Brookhaven Association, Inc., a charitable corporation made up of lot owners in the development, owns several areas on one of which is a clubhouse near the lake.
With this as background, the Court is faced with three questions, first, whether or not this is a class action; secondly, whether or not the zoning by-laws are valid so that building permits should issue; and thirdly, whether or not "campers" can be used under the Town's Trailer By-Laws.
IS THIS A CLASS ACTION?
Initially, the Court must determine whether the named plaintiffs are in fact representative of a class, as owners of lots within the Brookhaven Lake Estates development, so as to bring this action within the provisions of Mass. R. Civ. P. Rule 23.
Rule 23, entitled CLASS ACTIONS, provides in pertinent part:
"(a) Prerequisites to Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if
(1) the class is so numerous that joinder of all members is impracticable,
(2) there are questions of law or fact common to the class,
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and
(4 ) the representative parties will fairly and adequately protect the interests of the class.
(b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and the Court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy."
The four prerequisites to a class action set forth in §(a) closely parallel those stated in Spear v. H. V. Greene Company, 246 Mass. 259 (1923).
That case, which provided the basis for Massachusetts class action suits, held on page 266 that
"Class bills may be maintained where a few individuals are fairly representative of the legal and equitable rights of a LARGE NUMBER who cannot readily be joined as parties. The persons suing as representatives of a class must show by the allegations of their bill that all the Persons whom they profess to represent have a COMMON INTEREST IN THE SUBJECT MATTER of the suit and a RIGHT AND INTEREST TO ASK FOR THE SAME RELIEF AGAINST THE DEFENDANTS. It is not essential that the interest of each member of the class be identical in all aspects with that of the plaintiffs. The interest must arise out of a COMMON RELATIONSHIP TO A DEFINITE WRONG. There must be a JOINT PREJUDICE to all the class whom the plaintiff seeks to represent. The wrong suffered must be subject to redress by some COMMON RELIEF beneficial to all. THE PLAINTIFFS MUST BE FAIRLY REPRESENTATIVE in all essential particulars of the class for which they seek to act".
And again on page 267 this case held that
"Mere community of interest in the questions of law or of fact at issue in a controversy or in the kind of relief to be afforded does not go far enough to warrant a class suit. AVOIDANCE OF MULTIPLICITY OF SUITS IS NOT ENOUGH." (Emphasis added)
In this case, the plaintiffs claiming title through United Shorelines, Inc. constitute a class only in so far as they are all aggrieved by various actions of the Town of west Brookfield.
In fact, each plaintiff herein presents issues based on varied questions of law and states of fact, and seeks varied reliefs. Some of the plaintiffs seek a determination by the Court that the Town's zoning by-law prohibiting use of house trailers is not applicable to their camping trailers; others seek building permits to construct houses or cottages on their lots. Furthermore, each of those plaintiffs seeking the latter relief presents varying fact patterns relative to his right to obtain a building permit, because the rights of each of these lot owners are determined by the zoning and subdivision control law provisions in effect at the time title was acquired by each. Based on changes enacted by the Town in its zoning by-law and its adoption of the subdivision control law, separate, distinct rights accrue to those parties who purchased their lots:
A. Prior to the adoption of the subdivision control law on August 22, 1966;
B. After August 22, 1966, but before June 1, 1971, at which time a minimum lot size of 25,000 square feet was enacted into the zoning by-law;
C. After June 1, 1971, but before September 20, 1973, at which time a minimum lot size of 90,000 square feet was enacted into the zoning by-law;
D. After September 20, 1973.
Thus, it is apparent that the requisites of Mass. R. Civ. P. Rule 23 and the pre-existing rule in Spear, supra cit. have not been satisfied, and the Court so finds. Therefore, the Court rules that this case is not a class action, and only findings and rulings pertinent to the specific circumstances of each named plaintiff will be made.
COUNT I - The Building Permit Question
The first count of plaintiffs' complaint, seeks a determination of the "validity and extent of municipal zoning ordinances, by-laws and regulations" under the provisions of G. L. c. 231A, c. 185, §1(j 1/2), and c. 240, §14A. [Note 2] The resolution of this depends upon the answers to two questions:
1. Do any provisions of the Town's Zoning By-Law bar the issuance of building permits to any plaintiff lot owner?
2. And if they do not, does the subdivision control law, as adopted by the Town, bar the issuance of building permits to any plaintiff lot owner?
The Court finds the following to be the facts as to the Town's zoning by-law and subdivision control law:
A. On March 3, 1958, at the Annual Town Meeting the Town voted to abolish the planning board in the Town of West Brookfield in accordance with Chapter 94 of the Acts of 1958. (see exhibit No. 9). There was no planning board from this time until August 22, 1966.
B. On March 14, 1966, Article 12 of the Town Warrant at the Town Meeting was passed as follows:
"Article 12. To see if the Town will vote to establish a Planning Board in accordance with the provisions of Chapter 41, section 81A of the General Laws as amended, to consist of five (5) members to be appointed by the Selectmen, and thereafter elected by official ballot at the next Annual Town Meeting; one member for a term of one year; one member for a term of two years, one member for three years; one member for a term of four years and one member for a term of five years and thereafter one member elected each year for a term of five years, or take any action relative thereto.
VOTED, to establish a Planning Board in accordance with the provisions of Chapter 41, Section 81A of the General Laws as amended, to consist of five (5) members to be appointed by the Selectmen, and thereafter elected by official ballot at the next Annual Town Meeting; one member for a term of one year, one member for a term of two years; one member for three years, one member for a term of four years and one member for a term of five years and thereafter one member elected each year for a term of five years. (Exhibit No.9)"
G. L. c. 41, §81N provides in the first sentence thereof that any town which establishes a planning board under §81A above likewise accepts the provisions of "the subdivision control law", G. L. c. 41, §81K-81GG inclusive, unless the said Town specifically voted not to accept these provisions when the vote to establish the planning board was taken. The Court finds that the vote did not contain therein a provision excepting the "subdivision control law."
C. On August 22, 1966, the Town recorded its adoption of the subdivision control law as follows: (Exhibit No. 9)
"We, the undersigned, being a majority of the members of the West Brookfield Planning Board, hereby state that the Town of West Brookfield has accepted the provisions of the Subdivision Control Law." S-by five persons. (See Exhibit No.9)
The Court finds that this recording of the vote contained in Paragraph B and the rules and regulations thereof, certified by the clerk, as above, effectively adopted the subdivision control law since there was no specific vote not to accept the same in the vote of the Town on March 14, 1966. (See Paragraph B above).
D. On June 1, 1971, at a Special Town Meeting of the Town of West Brookfield, the following by-law under Chapter 1, Section 2 of the Zoning By-Law was adopted:
1. Single Family Residences
A. No single family residence shall be constructed in the Town of West Brookfield except on a lot containing no less than 25,000 square feet of land and have a frontage of no less than one hundred and twenty-five feet (125).
B. There shall be no more than one residential structure on any lot.
C. No building shall be constructed closer than twenty (20) feet to any side or rear lot line or closer than thirty (30) feet to any front line.
D. Any lot legally in existence at the time of the adoption of this section may be built on for residential purposes provided it contains not less than fifty (50) foot frontage.
2. Two Family and Multi-family Dwellings
A. No dwelling to be occupied by more than one family shall be constructed except on a lot containing not less than 40,000 square feet of land and having not less than one hundred and fifty (150) foot frontage, and for each additional unit constructed in excess of two, there shall be provided an additional land area of not less than five thousand (5,000) square feet.
A. "Lot" shall mean an area of land in one ownership with definite boundaries used, or available for use, as the site of one or more buildings.
"Frontage" shall mean as defined in Section II, A. of the Rules and Regulations Governing the Subdivision of land in West Brookfield, Massachusetts and Section 816-L [Note 3] of Chapter 41, General Laws. (Exhibit No. 6)
E. On September 20, 1973, the Town adopted a comprehensive Zoning By-Law which amended the 1971 requirements and provided that all building lots contain at least 90,000 square feet of land and 225 feet frontage. (Exhibit No. 8)
Thus, it may be seen from the above that there are four "time-of-purchase" [Note 4] categories involving the zoning and subdivision control law requirements which are as follows:
CATEGORY A. Prior to August 22, 1966 (the date of the Town's adoption of the subdivision control law);
CATEGORY B. August 22, 1966 through June 1, 1971 (the date of the Town's adoption of a 25,000 square foot minimum lot size);
CATEGORY C. June 1, 1971 through September 20, 1973 (the date of the Town's adoption of the 90,000 square foot lot size);
CATEGORY D. September 20, 1973 through December, 1976 (the date of the submission to the Court of data relative to lot ownership)
The Court will consider plaintiffs' positions in respect to each complaint as they fall into the four categories.
CATEGORY A - Acquisitions prior to August 22, 1966
On August 6, 1965, Helen Hills Hills conveyed a large tract of land in West Brookfield, Massachusetts, to Louise Rhoades, d/b/a United Shorelines by a deed recorded in Book 4590, pages 66-72. [Note 5] (Exhibit No. 1) It is from this tract, and Louise Rhoades that all of the plaintiffs, or their predecessors in title, obtained their lots.
On September 30, 1965, the said Louise Rhoades, d/b/a United Shorelines, by a deed recorded in Book 4609, page 221, conveyed the tract now known as Brookhaven Lake Estates to United Shorelines, Inc.
At various times thereafter during 1965 and 1966, up to August 15, 1966, copies of a plan of this land were recorded at the Worcester Registry of Deeds. These eleven sheets of plans, introduced into evidence as Exhibit No. 3, were consolidated as one (unrecorded) plan, and introduced into evidence as Exhibit No.4. Also see Exhibit No. 2.
On October 21, 1965, plaintiff Samuel F. Harwood, together with his wife Elvera D. Harwood (for some unknown reason not joined herein as a plaintiff) purchased Lots 11 and 12, Block 2, Unit 3 at Brookhaven Lake Estates from United Shorelines, Inc. by a deed recorded in Book 4613, page 571. Lot 11 contains 11,361 square feet in area and has 70 feet of frontage on Pierce Road, an accepted street in the Town, of macadam construction. Lot 12 abuts Lot 11 on the rear line of both, and faces Laurel Street on which it has 70 feet of frontage. It contains 11,662 square feet in area, more or less. Laurel Street is a private way controlled and maintained by the Association. (Exhibit No. 56)
On October 21, 1965, plaintiffs Delmar A. and Georgia L. Cox purchased Lot 10, Block 2, Unit 3 from United Shorelines, Inc. by a deed recorded in Book 4619, page 553. This lot has 70 feet of frontage on said Laurel Street and contains approximately 11,760 square feet of land. (Exhibit No. 58)
The Court finds that there was no pertinent zoning by-law in effect on August 22, 1966, when the Town of West Brookfield adopted the subdivision control law, G. L. c. 41, §§81K-GG. Therefore, the lots purchased by plaintiffs Harwood and Cox prior to August 22, 1966 were not then subject to any zoning requirements.
However, zoning by-laws passed after the purchase of the lots by these plaintiffs would apply unless the lots of these plaintiffs were exempt under the provisions of G. L. c. 40A, §5A. [Note 6] Section 5A sets forth two possibilities for exemption from zoning by-law changes - one pertaining to lots held in separate ownership, and one to groups of lots held in one ownership at the time of the change. It is clear that the ownership of plaintiffs Cox was separate from that of adjoining land, thus fitting it into the exemption category (1) under §5A. Plaintiff Harwood's two lots adjoin and thus must be treated as one lot with 70 foot frontage on Pierce Road and 70 foot frontage on Laurel Street. Taken together these two lots would likewise fit into the exemption category (1) of § 5A. However, for that exemption to apply to the lots of the plaintiffs herein the lots must further comply with the additional requirements set forth in (a) and (b) of said §5A. Under (a) the lot area must be 5,000 square feet or more, the frontage [Note 7] requirement 50 feet or more, and the lots located in a district zoned for residential use. The Court finds that Brookhaven Lake Estates has been zoned to this date only for residential use and that the two lots of plaintiff Harwood taken together and the lot of plaintiffs Cox each have more than 50 feet frontage and a total area in excess of 5,000 square feet. Thus, these lots do comply with the provisions of §5A and so far as zoning is concerned are exempt from any zoning requirements thereafter adopted by the Town relative to lot size and frontage requirements. Under (b) of §5A the lots must comply with set-back requirements at the time of the issuance of building permits.
But, in addition to the zoning question, the Court must also consider what was the effect on these lots of the Town's adoption of the subdivision control law on August 22, 1966.
Since plaintiff Harwood's two lots, 11 and 12, treated as one, and plaintiffs Coxes' lot were purchased prior to the Town's adoption of the subdivision control law on August 22, 1966, the exemption found in Section 81FF of G. L. c. 41 does afford them relief. That section provides that so far as land that is not registered is concerned, the
"recording of the plan of a subdivision in the registry of deeds before the subdivision control law was in effect ... shall not exempt the land within such subdivision from the operation of said law except with respect to lots which had been sold and were held in ownership separate from that of the remainder of the subdivision when said law went into effect ... and to rights of way and other easements appurtenant to such lots" (Emphasis supplied).
The Court finds that plaintiff Harwood's two lots and Coxes' one lot were unregistered and held in ownership separate from that of the remainder of the subdivision on August 22, 1966, the date the subdivision control law went into effect in the Town of West Brookfield. The Court further finds that these lots are exempt from the subdivision control law requirements under this provision of G. L. c. 41, §81FF.
Therefore, the Court rules that since plaintiff Harwood's two lots, considered as one, and plaintiffs Coxes' lot are exempt from the zoning requirements adopted in June, 1971, and September, 1973, and from the subdivision control law requirements under the provisions of G. L. c. 41, §81FF, each may be eligible for the issuance of a building permit upon the proper application therefor.
CATEGORY B - Acquisitions between August 22, 1966 and June 1, 1971.
This category will deal with plaintiffs who purchased their lots during the almost five years between the adoption of the subdivision control law on August 22, 1966, and the amended zoning by-law adopted on June 1, 1971. (see paragraph D)
On July 18, 1968, prior to the adoption of the 1971 zoning by-law amendment, Robert and Ida Lebel purchased from United Shorelines, Inc., Lot 5, Block 4, Unit 5 by a deed recorded in Book 4872, page 316, (Exhibit No. 20B). On May 27, 1972, the Lebels conveyed this lot to Elaine and plaintiff Richard A. Lamothe by a deed recorded in Book 5225, page 520. (Exhibit No. 20A) Lot 5 measures 70 feet on Laurel Street and 78.67 feet on Meadow Street, both private ways and contains approximately 8,640 square feet.
On December 1, 1969, plaintiffs Delmar A. and Georgia L. Cox purchased Lots 9 and 11, Block 4, Unit 3, from United Shorelines, Inc. by a deed recorded in Book 5005, page 80. Each of these adjoining lots, located on White Birch Drive, a private way, contains approximately 9,000 square feet of land and seventy feet of frontage or a total of 18,000 square feet and 140 feet of frontage.
By deed (Exhibit No. 19B) dated May 13, 1971 and recorded in Book 5116, page 363, United Shorelines, Inc. conveyed adjacent Lots 19, 20 and 21, Block 1, Unit 3 to Theresa G. and Roy F. Rockwell, Jr. The Rockwells conveyed said lots by deed (Exhibit No. 19A) dated March 19, 1976 and recorded in Book 5906, page 64 to Irene D. and plaintiff David W. Girard. These three lots, taken together, have a frontage of approximately 213 feet on Whispering Pine Road, a varying depth from 109 feet to 141.58 feet and a total area in excess of 23,430 square feet.
While it is not entirely clear from the evidence whether or not plaintiff Maiolo seeks a determination of the effect of the zoning laws upon his entitlement to a building permit, his situation will be considered. By deed (Exhibit No. 16B) dated January 12, 1970 and recorded in Book 5013, page 213, United Shorelines conveyed Lots 9, 11, 13, 15, Block 1, Unit 4 to Peter F. and Charles J. Rigali, Jr. The Rigalis, by deed (Exhibit No. 16A) dated August 22, 1973 and recorded on September 11, 1973, in Book 5383, page 66, conveyed Lots 9, 11, 13, Block 1, Unit 4 to M. Frances and Donald P. Maiolo. Lots 9, 11, and 13 each have a frontage of 70 feet on Hilltop Drive and a depth of 150 feet comprising a total area of 31,500 square feet.
First the Court will consider the zoning by-law requirements to see what effect the passage of the 1971 zoning by-law and the 1973 amendment thereto has on the rights of these purchasers in this category to obtain building permits. Since the Lamothe lot has 70 feet of frontage on Laurel Street and 78.57 feet on Meadow Street, the Coxes' lots together have 140 feet of frontage on White Birch Drive, and the Girard lots, 213 feet of frontage, and the lots of each plaintiff have an area of more than 5,006 square feet, the requisites for exemption specified by G. L. c. 40A, §5A as set forth in detail on pages 11-12 supra are complied with. However, while plaintiff Maiolo's lots do not satisfy the requirements for exemption under G. L. c. 40A, §5A from the operation of the 1971 Town Zoning By-Law, the lots, considered as one, satisfy the By-Law's minimum area and frontage requirements for a single family residence. The lots, considered as one, are exempt under Chapter 40A, §5A(1) from the operation of the 1973 amendment. Thus, the passage of the Zoning By-Law in 1971, and the subsequent amendment in 1973, does not prohibit the issuance of building permits to plaintiff Lamothe for Block 4, Unit 5, Lot 5, to plaintiffs Cox for Block 4, Unit 3, Lots 9 and 11, taken as one, and to plaintiff Girard for Block 1, Unit 3, Lots 19, 20 and 21, taken as one, and to plaintiff Maiolo for Block 1, Unit 4, Lots 9, 11 and 13, taken as one.
What, however, is the effect of the subdivision control law on these lots? Under Section 81FF of Chapter 41, quoted above, all provisions and requirements of the subdivision control law apply to lots sold on or after the date of its adoption - here, August 22, 1966 - unless these lots come under the exemption contained in this section. Since, when the subdivision control law went into effect these lots were not held in ownership separate from that of the remainder of the subdivision clearly the exemption provided by §81FF does not apply. Nor is it of any assistance to these plaintiffs to claim that other houses have been built along certain of these private ways if such houses were constructed prior to the adoption of the subdivision control law. See Toothacker v. Planning Board of Billerica, 346 Mass. 436 (1964).
Under the provisions of the third paragraph of G. L. c. 41, §81Y the persons who executed the deeds to plaintiffs Lamothe, Cox, Girard and Maiolo for these lots in controvention of the subdivision control law may well be liable for damages sustained by them as a result. The persons acquiring lots under these circumstances - Lamothe, Cox, Girard and Maiolo - may in turn submit a plan of their lots to the planning board for its approval. However, the lots would have to comply with the requirements of the subdivision control law and zoning by-law. Presumably here these lots do not.
The only other possible exception would seem to be found in §81L under the definition of "subdivision". There, a division into two or more lots may not be deemed a subdivision if at the time when it is made every lot has (a) frontage on a public way (these do not here) or (b) on a way shown on a plan approved under the subdivision control law (also not so with respect to these plaintiffs) or (c) a way in existence when the subdivision control law became effective "having in the opinion of the planning board sufficient width, suitable grades, and adequate construction to provide for the needs of vehicular traffic in relation to the proposed use of the land abutting thereto ... and for the installation of municipal services to serve such land and the buildings erected or to be erected thereon". The burden is upon the plaintiffs to demonstrate planning board approval of the ways in question. It is clear from an examination of exhibits 39 and 44 that no such approval has been given. Thus, the Court finds that §81Y is of no help to plaintiffs Lamothe, Cox, Girard and Maiolo.
Thus, the Court finds and rules that the provisions of the subdivision control law prohibit the issuance of building permits to plaintiff Lamothe for Lot 5, Block 4, Unit 5, to plaintiffs Cox for Lots 9 and 11, Block 4, Unit 3, to plaintiff Girard for Lots 19, 20 and 21, Block 1, Unit 3 and to plaintiff Maiolo for Lots 9, 11, and 13, Block 1, Unit 4.
CATEGORY C - Acquisitions between June 1, 1971 and September 20, 1973.
This category deals with a plaintiff who purchased a lot between the passing of the zoning by-law requiring a minimum lot size of 25,000 square feet on June 1, 1971 and the amendment to this by-law substantially raising the requirements on September 20, 1973.
Plaintiff Robert D. Robichaud, Jr. (See note 1, page 1) purchased four lots at Brookhaven Lake Estates from United Shorelines, Inc., by a deed dated September 12, 1972, recorded in Book 5268, page 435. These lots, unit 4, Block 3, Lots 30, 31, 32 and 33, were purchased after the 1971 zoning by-law amendment and prior to the 1973 zoning by-law amendment. Each contained approximately 14,000 square feet and has a frontage of 70 feet with a total of 280 feet frontage on Cedar Drive, a private way controlled and maintained by the Association.
So far as zoning is concerned plaintiff Robichaud's lots do not each comply with the size requirements of the 1971 zoning bylaw, namely, 25,000 square feet. When combined [Note 8] however, the lots comprise over 56,000 square feet in area. Dividing the four lots in the center would result in two lots of 28,000 square feet each, which would comply with the 25,000 square feet requirement of the 1971 zoning by-law.
However, on September 80, 1973, the zoning by-law was amended to provide that area requirements in lots in the rural residence area, which is where this plaintiff's lot is located (as are all those being considered in this case) be 90,000 square feet and the frontage 225 feet. Thus, plaintiff Robichaud's possible two lots under the 1971 amendment of 28,000 square feet each, would not comply with the 1973 amendment as they were not held in separate ownership on that date as required for exemption under the provisions of G. L. c. 40A, §5A. Even though the four lots together do not comprise 90,000 square feet, they certainly comprise over 5,000 square feet and 50 feet frontage so that the four lots can be treated as one and built upon under the provisions of §5A.
However, the subdivision control law requirements still pose a bar to issuance of a building permit for these lots. Since these lots were not held in ownership separate from that of the remainder of the subdivision after August 22, 1966, they are not exempted from the subdivision control law requirements under G. L. c. 41, §81FF. The Court finds that the plaintiffs are not eligible to receive building permits for their lots.
CATEGORY D - Acquisitions after September 20, 1973.
On September 20, 1973 the Town adopted a comprehensive by-law which amended that adopted on June 1, 1971, providing among other things the 90,000 square foot area and 225 frontage requirements. Perhaps, unfortunately, no attack was made on the reasonableness of these requirements as stated in footnote 2 and the Court has not therefore considered this.
Plaintiffs Gerald and Aurise Ouelette purchased Lots 1 and 2, Block 1, Unit 5, from United Shorelines, Inc. by a deed dated August 30, 1974, and recorded in Book 5593, page 35. This parcel contains two contiguous lots, Lot 1 having 12,705 square feet and Lot 2, 15,301 square feet. Each lot has approximately 71 feet frontage (and thus a total frontage of 142 feet) on Brook Drive, a private road maintained and controlled by the Association.
The amended zoning by-law of September 1, 1973 (See paragraph E above) was in effect at the time the Ouelettes purchased these lots. This by-law required a minimum lot size of 90,000 square feet for the issuance of a building permit and a minimum frontage of 225 feet. Even when combined these lots do not meet either minimum area or frontage requirements of the zoning by-law.
Like the plaintiffs in Category B and Category C, the plaintiffs Ouelettes' lots do not comply with the subdivision control law requirements and are not saved by G. L. c. 41, §81FF. Thus, the Court finds and rules that no building permit need be issued to plaintiffs Ouelette.
The effect of the zoning laws on the lots of plaintiffs Robert W. Cote and Eugene W. and Emma Feltault remains to be considered.
The evidence is incomplete with respect to plaintiff Cote. While a deed dated July 11, 1974 to Lot 3, Block 3, Unit 1 from Anita I. and Francis G. Martin to Lillian M. and Robert W. Cote was introduced into evidence (Exhibit No. 57), the chain of title on these lots back to United Shorelines, Inc. has not been established, and hence the effect of the zoning laws on these lots cannot be determined.
No deeds to plaintiffs Feltault have been introduced. The Court has before it (Exhibit No. 52) copies of the purchase contracts between United Shorelines, Inc. and Eugene and Emma Feltault for Lots 2, 3, Block 2, Unit 5; Lot 25, Block 2, Unit 4; and Lot 1, Block 2, Unit 1. There is a notation on these contracts that these lots were conveyed on respectively, January 4, 1972, January 4, 1972, and August 1, 1972. Were this the case, the Feltaults would be in category C and thus, while exempt from the 1973 amendment, they must comply with the 1971 zoning by-law and with the subdivision control law.
COUNT II - The Trailer Question
Resolution of this question depends upon the Court's interpretation of the words "trailer" and "camping trailer" as used in the Town's zoning by-law. As has already been found, on August 6, 1965, Helen Hills Hills conveyed a large tract of land in West Brookfield, Massachusetts, to Louise Rhoades, d/b/a United Shorelines, Inc. by a deed recorded in Book 4590, pages 66-72. (Exhibit NO. 1) It is from this tract, and United Shorelines, that the plaintiffs named herein or their predecessors in title, obtained title to their premises.
At various times between August 6, 1965 and August 15, 1966, copies of a plan of this land at Brookhaven Lake Estates was recorded by United Shorelines, Inc. at the Worcester Registry of Deeds. These plans, introduced into evidence as Exhibit No. 3, were consolidated into one (unrecorded) plan, which was introduced into evidence as Exhibit No.4.
At the time of the recording of the plans referred to in the above paragraph, the zoning by-law of West Brookfield relating to house trailers, passed at a Special Town Meeting held on June 26, 1962, provided, under Article 5, that:
"Chapter 1, Section I. Not more than one house trailer may be kept on any parcel of land. No House Trailer may be used as living quarters while so located. Space shall not be leased for trailers. The foregoing regulations, however, shall not prohibit the establishment of a trailer camp under the provisions of Chapter 140 of the General Laws." (Exhibit No.5)
Pursuant to the above by-law, the Town of West Brookfield filed Bills in Equity in the Superior Court of Worcester County under G. L. c. 40A, §22 alleging that David Giret, (Equity #5488) Roland Belanger (Equity #5489); and Henry Rogoz (Equity #5490) used certain trailers after notice to them through the President of Brookhaven Association to stop doing so in violation of the Town's zoning by-law. (Exhibit No. 33)
On February 26, 1973, the Superior Court (Meagher, J.) found, in each of the cases, set forth in paragraph 4 above, that each of the named respondents had:
"an object on his land which he calls a camper and is registered as a camper in Connecticut, but in fact is a house trailer; that he occupies the trailer on weekends and on vacations; that when he occupies the trailer he eats his meals and sleeps in the trailer, generally with his family; that these trailers are occupied on a temporary basis until a permanent building is built; ... that the by-law is poorly drawn and ambiguous but that it intends to prohibit living quarters in a house trailer and intends to prohibit people from occupying house trailers for living quarters .... that this house trailer is in violation of the zoning by-law." (Exhibit NO. 33)
On March 12, 1973, at the Annual Town Meeting of the Town of West Brookfield, Chapter 1, §1 of the zoning by-law, as inserted on June 26, 1962, was amended by the addition of the language underlined below so that the revised zoning by-law provided:
"Not more than one house trailer, mobile home, motor home or camping trailer may be kept or stored on any parcel of land, and no house trailer, mobile home, motor home or camping trailer may be used as temporary or permanent living quarters while so located. Space shall not be leased for trailers. The foregoing regulations, however, shall not prohibit the establishment of a trailer camp under the provisions of Chapter 140 of the General Laws" (Exhibit No. 7)
Thereafter, the Town of West Brookfield instituted another proceeding directly against Brookhaven Association, Inc. in the Worcester County Superior Court (Equity #5811) alleging that Brookhaven Association did not have, nor had it applied for, a license under G. L. c. 140, §32A and 32B, to conduct, control, manage or operate, directly or indirectly, any recreational camp, overnight camp, cabin, motel or mobile home park. The Town asked that a permanent injunction issue enjoining the respondent from conducting or operating, directly or indirectly, a recreational camp, or mobile home park until such time as the provisions of G. L. c. 140, §32A were complied with. (Exhibit No. 34)
On December 14, 1973, the Superior Court (Cross, J.) ruled in this case (Equity #5811) that the respondent Association was "conducting, controlling, managing, and operating a recreational camp"; that G. L. c. 140, §32A was applicable; and that the Town was "entitled to a permanent injunction until such time as respondent Brookhaven (Association, Inc.) complies with the provisions of General Laws Chapter 140, section 32A." (Exhibit No. 34)
On June 28, 1974, the Board of Health of the Town of West Brookfield granted the Brookhaven Association permission "to operate a recreation area camp under Chapter 140, Section 32A and 32B of the Massachusetts General Laws." The letter so notifying the Association also specifically provided that "this does not give you the right to have any overnight camping or lodging on Association property." (Exhibit No. 35)
At various times since the Superior Court decisions, the Town has sent letters to various property owners at Brookhaven Lake Estates informing them of the Town's zoning by-law regarding trailers, and testimony about the quantity and quality of notice so given was heard at trial. (See Exhibit Nos. 7, 15, 18, 36, 47) The Court notes however, that the first complaint relative to trailer use at Brookhaven Lake Estates was not filed until at least 1971. (Transcript, pp. I-21; II-5-6)
It is the contention of plaintiff Richard A. Lamothe that trailers like his and those of other Association members, used as they use them, are not subject to regulation as provided by the March, 1973 zoning by-law amendment.
These trailers are called "campers" and vary in size from 10 to 23 feet in length. Some of these campers are towed to their destination by a car or truck while another is loaded directly onto a truck. The latter does not need a camper license as it is covered under the truck license. However, in view of the Court's disposition, these variations are not material to coverage under the by-law.
The Court notes that the Association in 1973 established its own regulations of a maximum camper length of 27 feet, measured from the rear bumper of a vehicle to the tail extension of the camper. [Note 9]
Use of the campers appears to be primarily on weekends and one to two week vacation periods mostly during the summer season (Memorial Day to Labor Day.) Some people sleep overnight in their "campers"; others use them only as a "base" of operations during their vacations. It will suffice to say that use of the "campers" is not for permanent, or in most cases, even temporary residential purposes. (See Exhibit Nos. 21A-E, 30, 48A-C; Transcript, pp. I-41, I-50-58, I-63-70, I-85-87, II-14, III-10-15)
The evidence presented makes clear that the trailers in question, however classified or powered - camper, house, or mobile or motor home - are placed upon property in Brookhaven Estates not only for storage but for other purposes also. It is equally clear that the March, 1973 amendment to the zoning by-law was enacted in an attempt to clarify and remedy the poorly drawn and "ambiguous" by-law in effect prior to its adoption. The purpose of the by-law remained the same: the prohibition of all forms of use of all types of trailers other than for storage.
It is well established that
"A town has power by its zoning by-law, and by other by-laws, to regulate trailers and mobile homes. See Granby v. Landry, 341 Mass. 443 , 445 (1961). A town may reasonably consider that this type of dwelling unit, frequently but not always found on wheels, (a) is detrimental to the values of adjacent conventional single family houses....; and (b) tends to depreciate, contrary to the public interest, the amenities and appearance of a residence district. The presence of trailers may also "tend to stifle development of the area for residential purposes." ...There is ample justification for confining trailers and mobile units to areas where they will not injure the investment ..... of other owners, hurt taxable values, and impede town development." Manchester v. Phillips, 343 Mass. 591 , 595 (1962)
It is equally well established that words are to be taken "in their most natural sense." Brewster v. Sherman, 343 Mass. 598 , 600 (1962). The Court agrees with Judge Meagher that a camper is a "trailer" in this case just as it was in the earlier Superior Court cases under the earlier zoning by-law and so finds.
Therefore, the Court rules that Chapter 1, §1 of the zoning by-law, as amended on March 12, 1973, intends to prohibit all and any use of trailers, mobile homes, motor homes or camping trailers other than for storage at any site other than one licensed in accordance with the provisions of G. L. c. 140. The Court further rules that this by-law does validly regulate vehicles of the type described in the instant case, used variously as described above at Brookhaven Lake Estates, and that any use of any vehicle other other than for its storage is in violation of this zoning by-law.
Thus, in summary, the Court rules as follows:
1. The evidence is incomplete with respect to plaintiffs Cote and Feltault, and does not permit a finding.
2. The subdivision control law, the 1971 Town zoning by-law and the 1973 amendments do not bar the issuance of a building permit to plaintiffs Cox for Lot 10, Block 2, Unit 3 and to plaintiff Harwood for Lots 11 and 12, considered as one, Block 2, Unit 3.
3. Plaintiffs Lamothe, Girard, Maiolo, Ouelette, Robichaud and Cox are not entitled to building permits on their lots as before described.
4. Chapter 1, §1 of the Town zoning by-law, as amended on March 12, 1973, applies to the plaintiffs' campers and prohibits use other than for storage upon the plaintiffs' lots.
[Note 1] Three motions were filed to amend the complaint by addition of various parties as plaintiffs. The first motion, which sought to add additional parties, was denied. The second motion was allowed, and Samuel Harwood and Robert W. Cote were admitted as plaintiffs on June 30, 1977. The third motion, adding plaintiffs Gerald and Aurise Ouelette and Robert Robichaud, Jr., was allowed on August 2, 1977.
[Note 2] Plaintiffs make no contention that the 90,000 square foot or the 25,000 square foot minimum area zones set up by the Zoning By-Laws are confiscatory or not authorized by the Zoning Enabling Act so that the Court has not considered this question.
[Note 3] Evidently this is in error and means Section 81L.
[Note 4] "Purchase" refers to the date of a deed to the purchaser, rather than the date a sales contract may have been signed. Many of the lots involved herein were purchased on the installment plan over a period of years.
[Note 5] All Book and page numbers are made with reference to records maintained in the Worcester County Registry of Deeds unless otherwise noted.
[Note 6] The Court here notes that under St. 1975, Ch. 808, §3, parts of G. L. c. 40A were re-written, and this section is now codified as G. L. c. 40A, §6. However, because of the two year "adoption period" provided by G. L. c. 40A, §5, as inserted by St. 1975, Ch. 808, all zoning questions raised in this case must be considered under the "old" §5A, as the Town has not yet "adopted" the revised Chapter 40A.
[Note 7] "Frontage" is not defined in §5A. Since this is a remedial statute the Court interprets it to mean frontage on a way, not necessarily on a public way. In the case of plaintiff Harwood it does not matter as there is frontage on a public way.
[Note 8] See Vassalotti v. Board of Appeals, 348 Mass. 658 (1965)
[Note 9] The Court notes that included with the "Property Restrictions" printed on the back of the purchase and sale agreement (sales contract), which provided for monthly installment payments to purchase lots at Brookhaven Lake Estates (see paragraph 1 above) the following were included:
"6. Trailers or tents may not be placed on a lot without just having obtained a temporary permit from United Shorelines or Brookhaven Lake Estates Property Owners Association.
7. No outside toilet or privy shall be constructed on said premises. All sewage and waste water must be disposed of by septic tank or municipal sewers." (Exhibit No. 29)