ANTHONY H. HARWOOD, WILLIAM R. DONNELLY, MERRILL TAUB, RICHARD W. BAKER, JR., HOWARD A. GELLIS, EDWARD N. BUTTON, H. TALBOTT MEAD, LOUIS WALKER, VINCENT J. QUINN, TRUSTEES OF INSTITUTIONAL INVESTORS TRUST vs. TOWN OF WAKEFIELD

The plaintiffs, owners of four parcels of registered land in Wakefield in the County of Middlesex, seek a determination by this Court, pursuant to G. L. c. 240, §14A and c. 185, §1 (j 1/2), of the applicability to two of such parcels of an amendment to the zoning by-law of the defendant, Town of Wakefield, adopted at the Annual Town Meeting on March 17, 1975. After pleadings had been completed, the plaintiff filed a Motion for Summary Judgment. Since the Rules of Civil Procedure generally do not apply to matters within the exclusive jurisdiction of the Land Court [Note 1], the case thereafter was submitted on the following Agreed Statement of Facts:

"The Plaintiffs and the Defendant agree to the following which represents all the relevant facts in this action:

1. The Plaintiffs are ANTHONY H. HARWOOD, WILLIAM R. DONNELLY, MERRILL TAUB, RICHARD W. BAKER, JR., HOWARD A. GELLIS, EDWARD N. BUTTON, H. TALBOTT MEAD, LOUIS WALKER and VINCENT J. QUINN, Trustees of Institutional Investors Trust under a Declaration of Trust, dated May 22, 1970, and registered May 27, 1971, being Document No. 485590, filed in the Land Registration Office for the South Registry District of Middlesex County, hereinafter referred to as the "Plaintiffs."

2. The Defendant is the TOWN OF WAKEFIELD, a municipal corporation located in the County of Middlesex, Commonwealth of Massachusetts, hereinafter referred to as the "Town."

3. The Plaintiffs are the owners of a certain parcel of land located on the southwesterly side of Audubon Road, Town of Wakefield, Middlesex County, Massachusetts, which is shown as Lots 39, 40, 41 and 42 on Land Court Plan No. 27190T, and which is further described in Certificate of Title No. 148303, recorded in the Land Registration Office for the South Registry District of Middlesex County, in Book 871, Page 153. A copy of the Owner's Duplicate Certificate is attached hereto, incorporated by reference herein, and marked Exhibit "A."

4. The Town of Wakefield, after holding the statutory hearings by its Planning Board, held a special town meeting on February 5, 1970, and amended its zoning by-law by creating a new type of multi-family zone, known as Section 5, High Rise Apartment Districts which added a fourth type of multi-family district to the existing three types of multi-family districts. The existing three types are as follows:

Section 3A. Apartments in General Residence Districts which allows for multiple-family or apartment buildings not to exceed 40 feet in height or four stories, whichever is lesser, with a minimum lot size of 13,000 square feet and 120 feet of frontage.

Section 3B. Attached Dwellings in General Residence Districts which allows for attached dwellings of not more than eight units with a height not to exceed 35 feet or three stories, whichever is lesser, and which requires a lot size of 13,000 square feet and a lot width of 25 feet for each attached dwelling.

Section 4. Apartment Districts which allows for the construction of apartments not to exceed 60 feet in height or six stories, whichever is lesser, and further provides for a minimum aggregate area based on the number, type and floor location of the apartment units with the further provision that each such lot shall have a minimum frontage of 200 feet.

5. The new High Rise Apartment Districts provide as follows:

Section 5. High Rise Apartment Districts which allowed construction of high rise apartment buildings not to exceed twelve stories in height or 120 feet, whichever is lesser, and further required that the lot have a minimum area of 1,000 square feet for each one and two bedroom dwelling unit, and an additional 300 feet for each additional room other than kitchen and bathroom, and required that the lot have a minimum frontage of 500 feet and a minimum area of 3 acres.

The said sections as adopted by the Town Meeting as Article 5 is attached hereto and marked Exhibit "B."

6. The Town of Wakefield, at the Special Town Meeting of February 5, 1970, rezoned that portion of the Plaintiffs' land being shown as lots 41 and 42 which was then zoned in the Industrial District to the High Rise Apartment District zone. A copy of the zoning amendment as adopted by the Town Meeting as Article 12 is attached hereto and marked Exhibit "C."

7. On January 28, 1975, the Plaintiffs duly submitted to the Planning Board of the Town of Wakefield, for its endorsement under G. L. C. 41, §81P, and gave notice to the Town Clerk in accordance with the provisions of G. L. C. 40A, §7A, a plan of the locus which the Planning Board endorsed "Approval Under Subdivision Control Law Not Required" on February 11, 1975. Said plan was duly filed in the Land Court on February 18, 1975, as Land Court Plan No. 27190T. A copy of the Land Court Decree Plan No. 27190T, which is on file with Certificate of Title No. 148303 and duly recorded with the Land Registration Office for the South Registry District of Middlesex County, in Book 871, Page 153, is attached hereto and marked Exhibit "D."

8. The use of the land of the Plaintiffs as described in paragraph 3, supra., being shown on the "81P" plan as set forth in paragraph 7, is governed by the applicable provisions of the by-law in effect at the time of the endorsement of said plan, to wit: February 11, 1975, for a period of three years from and after that date, to wit: February 11, 1978, as provided in G. L. C. 40A, §7A, which provided, prior to its amendment by Chapter 808 of the Acts of 1975, as follows:

"When a plan referred to section eighty-one P of chapter forty-one has been submitted to a planning board and written notice of such submission has been given to the city or town clerk, and use of the land shown on such plan shall be governed by applicable provisions of the zoning ordinance or by-law in effect at the time of the submission of such plan while such plan is being processed under the subdivision control law including the time required to pursue or await the determination of an appeal referred to in said section, and for a period of three years from the date of endorsement by the planning board that approval under the subdivision control law is not required, or words of similar import."

The said G. L. c. 40A was amended by Chapter 808 of the Acts of 1975, which became effective on December 22, 1975, whereby the foregoing language of §7A as set forth above, has been incorporated without change into the new §6 of G. L. C. 40A, which provides as follows:

"When a plan referred to section eighty-one P of chapter forty-one has been submitted to a planning board and written notice of such submission has been given to the city or town clerk, and use of the land shown on such plan shall be governed by applicable provisions of the zoning ordinance or by-law in effect at the time of the submission of such plan while such plan is being processed under the subdivision control law including the time required to pursue or await the determination of an appeal referred to in said section, and for a period of three years from the date of endorsement by the planning board that approval under the subdivision control law is not required, or words of similar import."

9. The Town of Wakefield, on March 17, 1975, at the Annual Town Meeting rezoned that portion of the Plaintiffs' land being shown as lots 41 and 42 from High Rise Apartment District to Industrial District. The Town of Wakefield at the same Annual Town Meeting then amended the zoning bylaw of the Town of Wakefield by deleting Section 5, High Rise Apartment Districts, both of which amendments are attached hereto marked Exhibit "E" and Exhibit "F."

10. On December 7, 1977, the Plaintiffs pursuant to the provisions of the zoning by-law and the State Building Code duly filed a building permit application and site plan with the building inspector for the construction of six, twelve-story high rise apartment buildings consisting of 1,056 units to be erected to their land on Audubon Road, Wakefield.

11. The Plaintiffs pursuant to the provisions of Chapter 131 - Wetlands Protection Act - duly filed for wetlands approval, and a public hearing was held on such filing on January 24, 1978, and was approved on January 31, 1978, subject to twenty-two conditions, all of which are shown on an Order of Conditions under G. L. C. 131, §40, attached hereto and marked Exhibit "G."

12. The Town of Wakefield has determined that in accordance with the provisions of G. L. C. 40A, §6, supra., that the development of Plaintiffs' land, the processing and issuance of all necessary permits and approvals for the proposed construction are governed by the zoning provisions of the High Rise Apartment Districts, as set forth in paragraph 5, supra, and are further subject to compliance with all conditions imposed by the Order of Conditions under G. L. C. 131, §40, imposed by the Board of Selectmen of the Town of Wakefield, (Exhibit G) and subject to compliance by the Plaintiffs of all applicable State Building Codes."

The 1975 amendment rezoned the district in which Lots 41 and 42 are located from a High Rise Apartment District to an Industrial District, in which no residential uses are permitted. [Note 2] This clearly was a change in the use provisions of the zoning by-law applicable to the locus, and by virtue of the provisions of G. L. c. 40A, §7A [Note 3], as it existed prior to the effective date of St. 1975, c. 808 or of G. L. c. 40A, §6 [Note 4], inserted by the 1975 amendment, (the question of which is applicable not being free from doubt), the use of the land shown on the plan at the time of its submission is governed by the applicable provisions of the zoning by-law in effect at the date of the endorsement of the plan by the planning board for a period of three years from such date.

The more difficult question arises from the fact that the three years' grace period, during which the land shown on the plan is governed by the provisions of the Wakefield by-law in effect prior to the 1975 amendment, expired in February. However, the plaintiffs had filed an application for a building permit on December 7, 1977, and while the record is silent as to the disposition of such application, I understand that it was approved subject to certain conditions which have now been met but that the permit has not as yet been issued. This aspect of the case is governed by Green v. Board of Appeal of Norwood, 2 Mass. App. Ct. 393 (1974) [Note 5] wherein it was held that "[w]e interpret the period of protection provided for in §7A to extend to building permit applications filed, but not approved, before the expiration of the period of protection provided therein." The Green case involved a plan which the planning board had approved whereas, in the instant case, the subdivision plan bears the endorsement that approval is not required. While the General Court and the Supreme Judicial Court have treated the two categories of plans differently as Bellows Farms, Inc. v. Building Inspector of Acton, 364 Mass. 253 (1973), will attest, the same rule as to the effect of an application for the building permit should apply to both. Furthermore, I do not think it significant that although in the present case the Building Inspector apparently has approved the plaintiffs' application conditionally, the plaintiffs have not as yet had the formal permit issued due to the pendency of other municipal proceedings, now resolved. I read the Green case as making the filing of the application for a building permit the determinative act absent dilatory tactics or unreasonable delay on the part of the applicant, neither of which is present here. Once the building permit is issued, the provisions of the State Building Code govern the time within which work must be commenced and prosecuted to its conclusion. Cf. G. L. c. 40A, §11 and G. L. c. 40A, §6 as added by St. 1975, c. 808, §3.

Judgment accordingly.