MISC 90448

June 28, 1979

Middlesex, ss.

Sullivan, J.



Miscellaneous Case No. 90448 was commenced in the Land Court by Warren Carstensen ("Carstensen") pursuant to the provisions of General Laws, c. 40A, §17) to annul a decision of the Board of Appeals of the City of Cambridge which revoked one of four building permits issued to Carstensen. The companion case, Miscellaneous Case No. 90856, is a proceeding brought by Gail Warren, John Eliassen and Richard Lubov (the "Neighbors") to annul a related decision of the Board of Appeals of Cambridge which upheld three building permits granted to Carstensen. The latter case was commenced in the Superior Court for the County of Middlesex and was transferred to the Land Court on motion of Carstensen and consolidated with the prior pending proceeding; the motion was allowed by the judge of the Superior Court on June 27, 1978, and the action transferred to this department on the following day.

A trial was held on January 19, 22 and 23, 1979 at which a stenographer was appointed to record the testimony. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal.

The facts are largely undisputed, and in the interest of clarity, the following chronology is set forth. On April 25, 1977 the Cambridge City Council adopted an order "[t]hat the City Council go on record as accepting Chapter 808 of the Acts of 1975." (Exhibit No. 25). The parties have agreed that the order was informative only and did not constitute a formal acceptance of the act of the General Court referred to therein. However, a comprehensive revision of the Cambridge Zoning Ordinance, which was prepared in the light of Chapter 808, became effective in Cambridge on September 26, 1977 (Exhibit No.6). During this period of time, there "was concern in the municipality over the development of the areas affected by the extension of the Massachusetts Bay Transportation Authority to the Alewife Brook and North Cambridge sections. Consequently, the City Council was requested by petition dated July 5, 1977 to adopt a new subsection to the zoning amendment imposing a temporary development moratorium that prohibited the issuance of building permits for new construction within the area in question except for permits for reno- vation of an existing facility or permits for an addition to an existing facility not to exceed 75,000 square feet (Exhibit No. 10). The area affected by the proposed temporary moratorium included the Cogswell Avenue area where the Carstensen property is located. The Cambridge Planning Board held a hearing on August 2, 1977 relative to the moratorium and recommended it favorably on August 16, 1977. No action was taken by the City Council within ninety days, and on October 31, 1977 the petition became inactive (Exhibit No. 12). Carstensen applied for four building permits (Exhibits No. 1A, 1B, 1C and 1D) on November 10, 1977, and the permits were granted on that day. Each application sought permission for the construction of a so-called mini warehouse on the premises numbered 41, 43, 45 Cogswell Avenue in an I-B zone in accordance with plans filed therewith. The Neighbors, through an attorney, wrote to the Superintendent of Buildings under date of January 3, 1978 detailing in the letter certain alleged violations of the Cambridge Zoning Ordinance; and after a consideration thereof and a determination that one of the buildings which Carstensen proposed to build (Building A) projected into the residence C-1 zone, the Superin- tendent of Buildings directed Carstensen to submit a revised plan indicating compliance with the requirements of the zoning ordinance of the City of Cambridge as to Building A, an amendment to the permit application indicating any change in the size of the structure and a parking plan (Exhibit No. 5). The Neighbors were notified of this decision in which the official declined to revoke the permits and they thereupon appealed to the Board of Appeal from the decision of the Superintendent of Buildings by an appeal filed with the Office of the City Clerk on February 15, 1978. A hearing was held by the Board of Appeals on March 30, 1978 with the decision of the Board being filed with the Office of the City Clerk on May 4, 1978. The Board upheld the Neighbors' appeal only as it pertained to Building A and instructed the Superintendent of Buildings to revoke the permit of said building on the following findings:

1. That when the permit was issued, part of the building was located in a residential zone and the building, a warehouse, was prohibited in a residential zone under Paragraph 4.37 (j). Therefore, the granting of the permit was illegal.

2. That the building moratorium was reimposed before the permitholder attempted to correct the defects in the permit.

All four members voted in favor of the motion.

THEREFORE, the Board of Zoning Appeal voted unanimously to uphold the petitioner's appeal only as it pertains to Building A and to instruct the Superintendent of Buildings to revoke the permit for said building on premises known as 41, 43, 45, and 47 COGSWELL AVENUE, CAMBRIDGE, MASSACHUSETTS.

Complaints in the two cases, which are now before this Court, thereafter followed.

The chronology continues as follows. The proposed petition for the temporary development moratorium having become inactive, the Cambridge Planning Board was requested by the City Council to reconsider the petition (Exhibit No. 11). The first notice of the public hearing appeared in the newspapers on December 1, 1977 and referred to a public hearing to be held on December 20, 1977 (Exhibit No. 16). In fact, the hearing was not held until January 3, 1978, and a favorable report was submitted by the Planning Board to the City Council although the Board expressed concern "with what appears to be a trend toward the use of development moratoria as a device to stop development which is objectionable to some neighborhood residents." (Exhibit No. 17). The City Council thereafter adopted the development moratorium within 90 days of the Planning Board's hearing. (Exhibit No. 13).

The Planning Board was permitted to intervene in both of the cases now before this Court. The following questions are presented for determination:

(1) Were the appeals by the Neighbors from the action of the Superintendent of Buildings filed with the Office of the City Clerk seasonably or had the statutory appeal period expired prior to such filing?

(2) If the appeals were taken seriously, did the Board of Appeals err, as a matter of law, in ruling that the granting of the original permit was illegal, the amendment of the plans for Building A constituted a new permit, did not relate back to the date of filing the original application November 10, 1977 and therefore is barred by the moratorium?

(3) Once the development moratorium was enacted, was the cut- off date for application thereof notice of the first publication of the Planning Board hearing on July 14, 1977 or was it December 1, 1977, the date of the publication of the notice of the re-hearing by the Planning Board?

(4) If the applications were not barred by the temporary development moratorium as contended by the Planning Board, were they nonetheless so defective that the permits issued pursuant thereto cannot be sustained?

The Planning Board also contends that the Court erred in excluding evidence as to alleged violations of the State Building Code which were unrelated to the provisions of the Zoning Ordinance of the City of Cambridge.

General Laws, c. 40A, §7 now provides in part that

[i]f the officer or board charged with enforcement of zoning ordinances or by-laws is requested in writing to enforce such ordinance or by-laws against any person allegedly in violation of the same and such officer or board declines to act, he shall notify, in writing, the party requesting such enforcement of any action or refusal to act, and the reasons therefor, within fourteen days of receipt of such request.

Section 8 then sets forth the remedy for contesting such action as follows:

An appeal to the permit granting authority as the zoning ordinance or by-law may provide, may be taken by any person aggrieved by reason of his inability to obtain a permit or enforcement action from any administrative officer under the provisions of this chapter, by the regional planning agency in whose area the city or town is situated, or by any person including an officer or board of the city or town, or of an abutting city or town aggrieved by an order or decision of the inspector of buildings, or other administrative official, in violation of any provision of this chapter or any ordinance or by-law adopted thereunder.

Article 10.21 of the Cambridge Zoning Ordinance (Exhibit No. 6) also contains this provision.

It cannot be doubted that prior to the adoption of St. 1975, c. 808, the response of the building inspector pursuant to the request of the Neighbor's counsel was not an "order or decision" envisioned by section 16 as it then read; rather, the thirty day appeal period commenced with the granting of the permit. Kolodny v. Board of Appeals of Brookline, 346 Mass. 285 (1963). However, the statutory language applicable to appeals has now been broadened to encompass the "inability to obtain ••• enforcement action •••," and this language would now appear to encompass an appeal from one in the position of the Neighbors. See Williams v. Inspector of Buildings of Belmont, 341 Mass. 188 , 189-90 (1960). This conclusion is somewhat weakened by the failure of section 15 to refer to appeals other than from an "order or decision," but in order to give meaning to each provision of section 8, I have ruled in favor of the Neighbors' right of appeal and have agreed that the appeal period may be computed from the date of the reply by the Building Inspector to their attorney. See 1976 Ann. Surv. Mass. Law, §15.4. Even so there still remains a further question as to whether the appeals were filed seasonably. Section 15 retains the time limit of thirty days; the letter from the superintendent of buildings having been dated January 10, 1978, the appeal period normally would have expired on February 9, 1978, which fell during the emergency declared by the Governor in the aftermath of the Great Blizzard of 1978. I assume that the Chief Executive acted pursuant to St. 1950, c. 639, §5. This legislation is silent as to how the declaration affects deadlines which matured during the continuation of the emergency. In computing time periods of more than seven days, the usual rule is to include Saturdays, Sundays and holidays. See Muldoon v. West End Chevrolet, Inc., 338 Mass. 91 , 94-95 (1958); Mass. R. Civ. P. 6. If the last day for taking any prescribed action is a Sunday or legal holiday, G.L. c. 4, §9 provides, with an exception not here material, for performance on "the next succeeding business day." A day on which business is proscribed is not a legal holiday, but it is analogous thereto. If this approach is followed, the deadline for filing the appeal with the City Clerk was Monday, February 13, the next business day after the emergency ended. Conversely, the Neighbors contend that each day of the emergency should be excluded in computing the length of time for appeal and that therefore their action was timely. This argument has the advantage of equity since there was no way the emergency could have been anticipated as Sundays and holidays can. Thus, while the present situation is akin to the rule set forth in G.L. c. 4, §9, this may well be the exceptional case for the exclusion of the three determinative emergency days in computing the thirty days. I therefore find and rule that the appeals were timely and the Board of Appeals was not without jurisdiction. Cf. Greeley v. Zoning Board of Appeals of Framingham, 350 Mass. 549 , 552 (1966).

I turn therefore to a consideration of the merits of the two cases. In Case No. 90448 the primary question is whether the Board of Appeals erred as a matter of law in concluding that the permit for Building A was illegal when issued, because the warehouse intruded into the residential zone [Note 1] and that the amendment of the permit was barred by the moratorium. This conclusion was not, as the Board appeared to believe, required by the factual situation. In Smith v. Building Commissioner of Brookline, 367 Mass. 765 , 771 (1975) (Smith II), the Supreme Judicial Court approved a modification of the permit which had been held defective in Smith v. Board of Appeals of Brookline, 366 Mass. 197 (1974) (Smith I). The court rejected the position now advanced by the Neighbors and instead stated:

The plaintiff's position is that, since the permit granted on May 26, 1972, has been determined to be defective by this court's decision in Smith I, that permit is null and void and that consequently there is no outstanding permit. Thus, the plaintiff submits, the owner is entitled to no protection from subsequent zoning by-law amendments and the owner must apply for a new permit subject to the currently existing zoning by-law as amended. (Footnote omitted)

We are not persuaded by this line of reasoning for it rests on the assumption that the only course open to the board following our decision in Smith I was to revoke the May 26, 1972, permit as illegially granted ab initio. On the contrary, the decision in Smith I did not compel ex post facto revocation of the permit but only held that the project must conform to the 1971 amendments to the zoning by-law.

The Court did point out, at page 773, that in some instances the only option of the Board would be to revoke the permit with the controlling principle being a demonstration by the builder of a good faith attempt to comply with applicable law. Also relevant is the unavailability of the approach of amendment vis a vis revocation by virtue of the nature of the defect and its impact on the zoning scheme. Where the action of the Board is in error as a matter of law as was true in Bearce v. Zoning Board of Appeals of Brockton, 351 Mass. 316 (1966), this Court may order the issuance of the permit. As Smith II makes clear and as is implied in the holding in City of Boston v. Pagliaro, 1 Mass. App. Ct. 117 (1973), and the language of §113.8 of the State Building Code, there is nothing reprehensible in amending a permit which is partially invalid and relating the date thereof back to the date of the original permit. This being so, the permit for Building A rests on the same basis as those for the three other mini-warehouses which have been attacked on three grounds.

The first matter to be considered is the effect of the failure by the City Council to act within ninety days of the Planning Board hearing on the petition for the temporary development moratorium. G.L. c. 40A, §5 provides that "[i]f a city council fails to vote to adopt any proposed ordinance within ninety days after such hearing (by the planning board) ... no action shall be taken thereon until after a subsequent public hearing is held with notice and report as above provided." Article 1.52 of the Zoning Ordinances of the City of Cambridge similarly provides that:

Failure of the City Council to take action on a petition for a zoning amendment within 90 days after the Planning Boardrs hearing on said petition shall render the petition inactive. Such failure to act shall not be considered unfavorable action but shall require another Planning Board public hearing, in accordance with the requirements of Section 5, Chapter 40A, G.L., prior to any subsequent City Council action on the petition.

The principal difference between defeat of a proposed amendment by vote of the City Council and by its inaction lies in the statute of limitations imposed by the General Court on reconsideration in the former case.

The Planning Board argues that if a proposed amendment is resubmitted to it by the City Council and ultimately is adopted, the new zoning amendment applies to any permit issued after the notice of the first Planning Board hearing on whose recommendation the City Council failed to act. This position is untenable, for there would be little reason for the General Court to have estab- lished the elaborate system of time checks now found in section 5 if the relation back were to be to the notice of the first hearing. The plain language of the section requires a hearing, notice and report on a resubmission; it is to the notice of this hearing that section 5 applies. Otherwise it would be patently unfair for the landowner to be indefinitely delayed by the possibility that even after the expiration of the ninety day period the resubmission to the Planning Board would relate back to the date of the notice of the original error. In all fairness, such an approach must be rejected. Ouellette v. Building Inspector of Quincy, 362 Mass. 272 (1972). I find and hold that the statute refers to the notice of the Planning Board hearing which was published on December 1, 1977.

The Neighbors contend that the applications filed by Carstensen were incomplete and that it was error for the building inspector to issue permits based thereon. It is a tenet of law of this Common- wealth that public officials are presumed to act regularly. The blanks which appear in the applications request information inappli- cable to new construction or supplied by the plans referred to on the application. The objections pressed by the Neighbors at the trial included failure of the plans to show the specific location and size of the off-street parking, and the means of access thereto from the public streets as required by Article 6 of the Ordinance. The site plan as filed includes a notation as follows:

2. Parking for at least 20 cars is on owner's property on the south side of Cogswell Ave., less than 2,000 Ft. from site of construction shown.

On January 18, 1978, Carstensen submitted a plot plan specifically showing parking on other property owned by him on Cogswell Avenue across from the area on which the new construction is to take place. The more detailed plans may properly relate back to the date of the original filing. I see nothing in the Ordinance to bar the Superintendent of Buildings from accepting the plans as originally filed but requiring more information in due course. City of Boston v. Pagliaro, supra. The other principal objection raised by the Neighbors to the plans concerns the off-street loading facilities. The Neighbors and the Planning Board have argued that the bays proposed by Carstensen are inadequate to meet the requirements of the Zoning Ordinance. Carstensen, however, argues that the off- street loading facilities required by Section 6.91 of the Zoning Ordinance need not be included so long as any yard area used as a loading bay does not infringe on the front, side and rear yard requirements. The Superintendent of Buildings testified at the trial that in fact this was the case. Carstensen correctly contends that the Zoning Ordinance provides that the dimensional requirements for loading bays apply only to enclosed structures.

The Planning Board attempted to introduce evidence at trial of violations of the State Building Code allegedly contemplated by Carstensen's plans. This evidence was excluded since a hearing before the Zoning Board of Appeals, and the appeals to this Court were based on the statutory procedure relating to the zoning ordinance only. As it has long been pointed out in Massachusetts, there is a distinction between the zoning and building laws with variations in jurisdiction depending on the nature of the contest. Enos v. City of Brockton, 354 Mass. 278 , 280-82 (1968); Rice v. Board of Appeals of Dennis, 342 Mass. 499 , 500-01 (1961).

In the resolution of the difficult questions presented by this case, I have not had to reach the question of the constitutionality of the temporary moratorium which was more extensive than that considered by the Supreme Judicial Court in Collura v. Arlington, 367 Mass. 881 (1975).

On all the evidence I find and rule that the decision of the Board of Appeals annulling the permit issued by the Superintendent of Buildings for the construction of Building A is wrong as a matter of law. Bearce v. Zoning Board of Appeals of Brockton, supra at 320-21; Ferrante v. Board of Appeals of Northampton, 345 Mass. 158 , 162-63 (1962), and is hereby annulled. The decision of the Zoning Board of Appeals upholding the remaining three building permits issued to Carstensen is hereby affirmed.

The interveners have made several requests for rulings of law. Requests Nos. 1 and 5 are granted, and the others are denied as inopposite or not in conformity with this decision.

Judgment accordingly.


[Note 1] The boundary between the zones has never been surveyed. Carstensen revised his plans rather than litigate the question of whether his project was located partially in a residential district. It has been assumed for the purpose of this decision that it did encroach.