ADVANCED DEVELOPMENT CONCEPTS, INC. vs. TOWN OF BLACKSTONE.

This is an action brought by the plaintiff, Advanced Development Concepts, Inc., pursuant to G.L. c.240, §14A and G.L. c.185, §l (j 1/2), seeking an interpretation of the rate of development zoning by-law of the Town of Blackstone. The plaintiff filed a motion for summary judgment and the motion was argued by counsel. The parties filed a stipulation with this Court agreeing that there are no genuine issues of material fact in this action.

After reviewing all matters entitled to consideration on a motion for summary judgment, including the stipulation filed by the parties, I find that the following are the only material facts and that they are not in dispute and that, consequently, the case is appropriate for summary judgment as a matter of law. Community National Bank v. Dawes, 369 Mass. 550 , 553 (1976):

1. The plaintiff, Advanced Development Concepts, Inc., has been since August 30, 1985 the owner of approximately 33 acres of land, called Heritage Estates, located in the Town of Blackstone.

2. On July 3, 1986, the Planning Board of the Town of Blackstone approved a definitive plan for the Heritage Estates subdivision allowing the development of 47 residential lots, sixteen of which met the zoning requirements for two-family dwelling units.

3. The approval of the Heritage Estates subdivision plan was conditioned upon the plaintiff making certain off-site improvements which included installation of a sidewalk along Pickering Road, widening Pickering Road to approximately twenty feet and clearing a rock out-cropping, and participating in off-site drainage facilities.

4. On or about April 7, 1980, the Town adopted a rate of development by-law, Section 2700 (now called, and hereinafter referred to as, Section 123-14) of the Town of Blackstone zoning by-law which provides as follows:

The Building Inspector shall not issue building permits authorizing more than ten (10) dwelling units (exclusive of unused authorizations which have lapsed or have been withdrawn) during any twelve-month period within property which, as of July 1, 1979, was contiguous and in the same ownership [or in different ownerships each involving one (1) or more of the same principals] unless the Planning Board has granted a special permit for rapid development. Such special permit shall be granted only upon Planning Board determination that in addition to the special permit criteria of §123-4C, such development also would serve a salient housing need, would be infeasible if limited to ten (10) units over twelve (12) months and would not overburden public services.

5. Subsequent to the approval of its subdivision plan for Heritage Estates, the plaintiff applied to the Planning Board for a rapid development permit to construct 47 single family dwelling units on Heritage Estates within a twelve month period. On February 5, 1987, the Planning Board denied the plaintiff's rapid development permit application.

6. Since 1986, the plaintiff has not applied to the Building Inspector for the building permits for ten dwellings per year for Heritage Estates which would have been allowed under Section 123-14 for the years 1986 through 1990 had it applied for the permits in each of those years.

The issue before the Court is whether Section 123-14 now entitles the plaintiff to obtain building permits authorizing the construction of ten dwelling units for each twelve month period which has elapsed since the date in 1986 when the subdivision plan for Heritage Estates was approved, even though it did not apply for any permits during 1986, 1987, 1988, 1989 and 1990. Section 123-14 provides that: "The Building Inspector shall not issue building permits authorizing more than ten (10) dwelling units (exclusive of unused authorizations which have lapsed or have been withdrawn) during any twelve-month period. . ." (emphasis added). Under Section 123-14, an applicant may obtain building permits which authorize more than ten dwelling units per year if the applicant has "unused authorizations which have lapsed or have been withdrawn." Therefore, this case rests on the interpretation of the phrase "unused authorizations which have lapsed or have been withdrawn", a phrase which is not specifically defined in the town's by-law.

The plaintiff contends that it is entitled to ten building permits for each year which has elapsed since the subdivision plan for Heritage Estates was approved in 1986. The plaintiff further contends that it should not be a prerequisite for the grant of the building permits it seeks that it have applied for building permits for ten dwellings for each year since 1986. The plaintiff would have this Court interpret the language "unused authorizations which have lapsed or have been withdrawn" in Section 123-14 as meaning those building permits which it could have applied for and received in a given year, not those which it actually applied for, received and then did not use. The plaintiff threfore maintains that it does have ten "unused authorizations" for each year since 1986 because it could have, but did not, apply for them and that therefore, it is entitled to building permits for ten dwellings each year since 1986.

If a zoning by-law does not provide an express definition of a word or phrase used in the by-law, the meaning of the word or phrase used is to be determined by the ordinary principles of statutory construction. Framingham Clinic, Inc. v. Zoning Board of Appeals of Framingham, 382 Mass. 283 , 290 (1981). The Court must interpret the words used in a zoning by-law using the "common and approved usages of the language. . .without enlargement or restriction." Commonwealth v. S.S. Kresge Co., 267 Mass. 145 , 148 (1929). The common and approved meanings of the words are to be derived from "sources presumably known to the [by-law's] enactors, such as. . .dictionary definitions." Commonwealth v. Zone Book, Inc., 372 Mass. 366 , 369 (1977).

Webster's Third New International Dictionary 146 (1968) defines "authorization" as either "the act of authorizing" or "the state of being authorized." Both of these definitions imply the past tense of the word "authorize"; that is, something which has been requested, evaluated and authorized. In order to be consistent with the common and approved meaning of the word "authorization", the term "unused authorizations" as used in Section 123-14 should be construed to mean those building permits already applied for and issued, which were then not used by or were withdrawn by the applicant. This conclusion is further supported by the language which follows "unused authorizations" in Section 123-14: "unused authorizations which have lapsed or have been withdrawn ." It is hard to see how a building permit which has not yet been applied for and issued can lapse or be withdrawn. I rule that the phrase "unused authorizations which have lapsed or have been withdrawn" as used in Section 123-14 means those building permits which were applied for, issued and then not used by or withdrawn by the applicant. I further rule that the plaintiff is not entitled to building permits for ten dwellings each year which has elapsed since the subdivision plan for Heritage Estates was approved in 1986. Accordingly, I rule that the plaintiff's motion for summary judgment is hereby denied and summary judgment is to be granted in favor of the defendant.

Judgment accordingly.