CAPE LANDS, INC., CHARLES E. FRAZIER, JR., ROBERT LESSER vs. THE TOWN OF BREWSTER

This action, commenced in the Barnstable County Superior Court as one for declaratory relief pursuant to G. L. c. 231A, was removed to the Land Court, with the consent of the parties, by order of Ronan, J. In this Court the plaintiffs filed an amended petition framed under G. L. c. 185, §1 (j 1/2) and c. 240, §14A in which they, as the owners of a freehold estate in land, seek a determination of the applicability of two amendments to the Brewster zoning by-law to their land. [Note 1] The controversy concerns the zoning protection afforded land shown on approved subdivision plans by G. L. c. 40A, §7A, as amended by St. 1975, c.808, §3. The case was submitted on the following Agreed Statement of Facts:

"For purposes of the instant action and for no other purpose, the parties stipulate and agree to the following facts and agree that such facts are all the facts necessary for a determination of the issues:

1. The plaintiff, Cape Lands, Inc., is a Massachusetts business corporation having its usual place of business in Wellfleet, Barnstable County, Massachusetts.

2. The plaintiff, Charles E. Frazier, Jr., resides in Wellfleet, Barnstable County, Massachusetts.

3. The plaintiff, Robert Lesser, resides in Brewster, Barnstable County, Massachusetts.

4. The defendant, Town of Brewster, is a duly organized municipal corporation incorporated by an act of the General Court on February 19, 1803.

5. The plaintiff, Cape Lands, Inc., is the owner of a freehold estate in and is in possession of a certain parcel of land in the Town of Brewster shown on plans entitled "Section A, Subdivision Plan of Land in Brewster, Mass. made for Cape Lands, Inc., Scale 1" = 100', October. 28, 1974" and "Section B, Subdivision Plan of Land in Brewster, Mass. made for Cape Lands, Inc., Scale 1" = 100', October 28,1974". Said plans are recorded in the Barnstable County Registry of Deeds in Plan Book 296, Pages 8 and 9 and Plan Book 296, Pages 10 and 11 respectively, each plan being two sheets.

6. The plaintiffs, Charles E. Frazier, Jr., and Robert Lesser, are the owners of freehold estates in and are in possession of a certain parcel of land in the Town of Brewster shown on a plan entitled "Subdivision Plan of Land in Brewster, Mass. made for Cape Lands, Inc., and Oren C. Smith, Scale 1" = 100', October 25, 1974" recorded in said registry in Plan Book 296, Pages 6 and 7, said plan being two sheets.

7. On or about April 3, 1974, the plaintiffs submitted preliminary subdivision plans for the development of the parcels (hereinafter "the locus") to the Planning Board of the Town of Brewster (the Board) and gave written notice of the submission to the Town Clerk. A copy of the notice is submitted herewith as Exhibit "1".

8. On or about November 1, 1974, the plaintiffs delivered to the Board further plans for the development of the locus, together with applications for approval of the plans as definitive subdivision plans under the provisions of the Subdivision Control Law and gave notice of said applications to the Town Clerk. A copy of the notice is submitted herewith as Exhibit "2".

9. On December 17, 1974, the Board conditionally approved the plans. On January 3, 1975 the Board gave notice to the plaintiffs of the conditional approval and the requirement to furnish bond, surety or covenant under Section 81U of the Subdivision Control Law. On February 5, 1975, the Board informed the plaintiffs that no appeal had been taken from the January 3, 1975 notice. On or about February 10, 1975, the plaintiffs executed the required covenants and delivered the same to the Board. A copy of the covenants is submitted herewith as Exhibit "3A". On April 1, 1975, the Board endorsed its approval on each of the plans. On July, 10, 1975, the plans were recorded in the Barnstable County Registry of Deeds, Plan Book 296, Pages 6 through 11, inclusive. A copy of the plans is submitted herewith as Exhibit "4".

10. With the approval of the Board, two subsequent covenants were executed by the plaintiffs and delivered to the Board. Copies of these covenants are submitted herewith as Exhibit "3B".

11. At the time of the submission of the preliminary plans to the Board, the Town of Brewster was governed by the zoning by-law adopted at the town meeting of the Town of Brewster which adjourned February 12, 1971, as amended in 1972. The by-law provides, in part, that a "Planned Unit Development" may be constructed in the zoning district in which the locus lies as a matter of right and that "The average density of residences shall not exceed five units per acre of land within the area which is devoted to residential use, as defined in 6b above" A copy of this by-law is submitted herewith as Exhibit "5".

12. Subsequent to the submission of the preliminary plans to the Board and prior to the submission of the definitive plans, the zoning by-laws of the Town of Brewster were amended twice. The first amendment purported to reduce the allowable average density in the sections of Planned Unit Developments devoted to residential use from five units per acre to four units per acre, and then the second amendment further reduced it to three units per acre. This change, if it applies to the locus, would reduce the permitted number of residential units by forty (40) per cent in any Planned Unit Development constructed in the locus.

13. General Laws c. 40A § 6 provides that the locus shall be governed by the zoning by-laws in effect when the plans first were submitted to the Board and shall continue to be governed by such by-laws for a period of seven years from the date of endorsement of the Board's approval of the plans. The Board endorsed its approval on the plans on April 1, 1975.

14. The plaintiffs are unable to plan and implement a Planned Unit Development without certainty as to which density requirements are applicable to the locus since the applicability of the lower density requirement would reduce the value of the locus and jeopardize the development thereof."

Attached to the Agreed Statement of Facts were the five exhibits referred to therein. At the request of the Court copies of the preliminary subdivision plans filed with the Brewster Planning Board also were submitted.

At all times here material the first paragraph of G. L. c. 40A, §7A [Note 2] read as follows:

"When a preliminary plan referred to in section eighty-one S of chapter forty-one has been submitted to a planning board, and written notice of the submission of such plan has been given to the city or town clerk, the land shown on such preliminary plan and on the definitive plan evolved therefrom, or in the absence of a preliminary plan, the land shown on a definitive plan submitted under the provisions of the subdivision control law, shall be governed by applicable provisions of the zoning ordinance or by-law in effect at the time of submission of the plan first submitted while such plan or plans are being processed under said subdivision control law; and, if said definitive plan becomes approved, or is disapproved and thereafter amended and duly approved, said provisions of the ordinance or by- law in effect at the time of the submission of the first submitted plan shall govern the land shown on such approved definite plan, for a period of seven years from the date of endorsement of such approval notwithstanding any other provision of law; provided, that if a preliminary plan is submitted, the definitive plan is duly submitted within seven months from the date on which the preliminary plan was submitted. Disapproval of a plan shall not serve, to terminate any rights which shall have accrued under the provisions of this section, provided an appeal from the decision disapproving said plan is made under applicable provisions of the subdivision control law. Such appeal shall stay, pending an order or decree of a court of final jurisdiction, the applicability to land shown on said plan of the provisions any zoning ordinance or by-law which became effective after the date of submission of the plan first submitted."

It cannot now be doubted that the General Court for the past several years has intended to afford developers protection from local zoning changes for a period of years which has varied from three to seven years as to land shown on approved subdivision plans. McCarthy v. Board of Appeals of Ashland, 354 Mass. 660 , 663 (1968). A series of recent cases has traced the legislative history of section 7A and the grace periods granted thereby. See Vazza v. Board of Appeals of Brockton, 359 Mass. 256 (1971); Paul Livoli, Inc. v. Planning Board of Marlborough, 347 Mass. 330 (1964); Smith v. Board of Appeals of Needham, 339 Mass. 399 (1959). The present case is unique in that it involves a Planned Unit Development (P.U.D.). in which customarily a traditional subdivision as it is defined in G. L. c. 41, §81L would not be contemplated. Rather the more usual approach to a P.U.D. would be the submission to the Planning Board of what Section XC of the Brewster Zoning By-law (Exhibit No. 5) calls a plan for development. It is difficult to escape the conclusion that the three subdivision plans here in question show only paper subdivisions filed merely to preserve the zoning status quo, for each has a short private way servicing a large tract of approximately one hundred acres or more. If the Brewster Planning Board had refused to approve the plans in 1974, such refusal would have been understandable, but the plans were approved and the endorsement signed by the members of the Board. It is difficult now, on this record, for the Court to say that in truth none of the three plans shows a good faith subdivision entitled to section 7A protection, but is in effect a plan which might have been endorsed "Approval under the Subdivision Control Law Not Required". If the latter were so, then the revised density provisions of the by-law relative to P.U.D. would be applicable. See Bellows Farms, Inc. v. Building Inspector of Acton, 364 Mass. 253 (1973).

On all the evidence I find and rule that on or about April 3, 1974 the plaintiffs submitted preliminary plans of their lands to the Brewster Planning Board and gave written notice of the submission to the town clerk; that on or about November 1, 1974, within seven months from the date of such submission, the plaintiffs submitted to said Board the definitive plans evolved therefrom together with applications for their approval and gave the town clerk notice thereof; that said Board conditionally approved said plans on December 17, 1974 and executed the endorsement of approval thereon on April 1, 1975; that at all times a P.U.D. has been a permitted use in the zoning district in which the plaintiffs' lands are located; that at the time the preliminary plans were filed with the Planning Board, the Brewster zoning by-law provided that "The average density of residences shall not exceed five units per acre of land within the area which is devoted to residential use..."; that after the submission of the preliminary plans and prior to the submission of the definitive plans the permissible average density was successively reduced from five to four and then to three units per acre; that the plans show a subdivision, as defined in G. L. c. 41, §81L, which has been approved by the Planning Board; that no evidence was introduced to warrant a finding that the plans were filed in bad faith solely to secure the benefits of G. L. c. 40A, §7A; and that until April 1, 1982 the lands shown on said plans will be governed by the provisions of the Brewster zoning by-law in effect at the time of submission of the preliminary plans on April 3, 1974.

Judgment accordingly.