EDITH S. BLOOM & others vs. PLANNING BOARD OF BROOKLINE & others.

WHITTEMORE, J. This is a bill of complaint brought in the Superior Court on June 19, 1962, by more than ten taxable inhabitants of Brookline under G. L. c. 41, Section 81Y, to nullify an indorsement on a recorded plan, revoke building permits, and enjoin the erection of buildings. The defendants are (a) the planning board of Brookline (the board) and a former member who was the chairman in 1962, (b) the building commissioner and William C. Berghaus, a building inspector, (c) James Lawrence, Jr., and his two contrustees under a will, as the owners of the land, and (d) a corporation and Albert C. Waters, Jr., its employee or agent, who, with Lawrence, are proposing to build. The plaintiffs have appealed from interlocutory decrees which sustained the demurrers of all the defendants, from the interlocutory decree which denied a motion to amend the bill and denied leave further to amend, and from the final decrees which dismissed the bill as to all the defendants.

The case was heard in the Superior Court with an appeal under G. L. c. 40A, Section 21 (Kolodny v. Board of Appeals of Brookline, post, 285), and a petition for a writ of mandamus (Kolodny v. Building Commr. of Brookline, post, 289) with allegations based on the same underlying facts. Facts summarized in the following paragraphs are set out in pleadings or proposed pleadings in one or another of the three cases.

Owners of a parcel of land lying between Grove and Newton streets, Brookline, early in 1962 sought, and were refused, a variance to enable them to build an apartment house complex on the parcel notwithstanding that it extended more than twenty-five feet into a single residence district. [Note 1] Thereafter a plan was prepared entitled "Subdivision Plan of Land in Brookline . . . March 16, 1962." The plan (see simplification reproduced herewith) [Note 2] shows a

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large "Lot A" with its southwesterly boundary 24.5 feet southwesterly of a zone boundary and, adjacent to the southwesterly boundary, a small parcel entitled "Lot B"

with an area of 3,052 square feet and a frontage of 34.38 feet on Grove Street.

Lawrence, on March 19, 1962, "exhibited" the plan to the chairman of the board, who did not submit it to the board

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but indorsed it: "Brookline Planning Board, Date March 19, 1962, approval under Subdivision Control Law not required. Lot B does not conform with the Zoning By-Law. Russell Hastings, Chairman." The plan was recorded at the Norfolk registry of deeds, March 19, 1962.

On March 27, 1962, the inspector, Berghaus, approved applications for, and issued, thirteen permits for buildings on lot A. Lawrence had not notified the town clerk of the submission of the plan as required by G. L. c. 41, Section 81T, as amended through St. 1960, c. 266, Section 1. [Note 3] On May 22, 1962, a new zoning by-law was adopted, pursuant to a planning board hearing of which notice was given on March 29, 1962. G. L. c. 40A, Section 11. [Note 4]

The bill in this case alleges a proposal to build an apartment house complex on a "parcel of land" under the permits which are "predicated upon a . . . subdivision." It sets out the indorsement on the plan and alleges the failure to submit the plan to the board and to notify the town clerk, and that no notice of public hearing had been advertised or given and no hearing held. It alleges that the building inspector approved the applications for permits "without power or authority"; and that the proposed builders acted without authority from the owners.

The proposed substitute bill sets out in substance, interalia, that (a) the building commissioner and the inspector knew that the permits were for the erection of buildings within a subdivision under an unapproved plan and (b) "one of said lots, as sub-divided, has only 34.38 feet frontage on a way," although the frontage required by the zoning by-law "for erection of a building on said lot is 40 feet."

Section 81Y provides in its fourth paragraph: "The superior court for the county in which the land affected by

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any of the provisions of the subdivision control law lies shall have jurisdiction in equity on petition of the planning board of a city or town, or of ten taxable inhabitants thereof, to review any action of any municipal board or officer of such city or town in disregard of the provisions of this section and to annual and enjoin such action, to enjoin the erection of a building in violation of this section, and otherwise to enforce the provisions of the subdivision control law and any rules or regulations lawfully adopted and conditions on the approval of a plan lawfully imposed thereunder, and may restrain by injunction violations thereof or make such decrees as justice and equity may require. No proceeding under this paragraph shall be instituted more than one year after the act or failure to act upon which such petition is based."

The bill is cast primarily with reference to the following requirement of the second paragraph of Section 81Y: "In any city or town in which the subdivision control law is in effect, the board or officer, if any, having the power and duty to issue permits for the erection of buildings shall not issue any permit for the erection of a building until first satisfied that the lot on which the building is to be erected is not within a subdivision, or that a way furnishing the access to such lot as required by the subdivision control law is shown on a plan recorded or entitled to be recorded under section eighty-one X, and that any condition endorsed thereon limiting the right to erect or maintain buildings on such lot have been satisfied, or waived by the planning board . . .."

The indorsement was undoubtedly placed on the plan pursuant to Section 81P, as amended through St. 1961, c. 332. [Note 5]

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Section 81L defines "lot" as "an area of land in one ownership, with definite boundaries, used, or available for use, as the site of one or more buildings." The definition of "subdivision" includes: "the division of a tract of land into two or more lots . . . [but not if] every lot within the tract . . . has frontage on (a) a public way . . .. Such frontage shall be of at least such distance as is then required by zoning or other ordinance or by-law, if any . . . for erection of a building on such lot . . . [otherwise] twenty feet."

1. We assume that under Section 81Y a bill to correct or expunge an indorsement on a recorded plan could be maintained in some circumstances and that this is not affected by the right given by Section 81BB to those aggrieved to appeal within twenty days from a decision of the board or its failure to take final action on a plan. The plaintiffs, however, do not show or suggest that there is in this case any substantive ground for such relief.

The allegations show that, notwithstanding the title of the recorded plan, "subdivision," there has been no subdivision within the subdivision control law. We construe "lot" for purposes of the definition of "subdivision" in Section 81L in the terms of the definition of "lot," that is, an area "used, or available for use, as the site of one or more buildings." If the owners had proposed lot B as a lot for building, notwithstanding its deficiencies, the division of

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their parcel into two lots as shown on the plan would, of course, have been a subdivision. Board approval would have been required and presumably would have been refused unless a variance or other lawful basis for building on the lot had been shown. But the owners have recorded and acted under a plan which, with its indorsement, shows that lot B is not an area which, in the absence of further zoning action, can be built on. Their only right to act under the plan is on the construction that it is not a plan of a subdivision because of the anomalous character of lot B. In effect they have recorded a plan which disavows any claim of existing right to use lot B as a zoning by-law lot.

Under such a plan, apart from the purported determination by the planning board, the building commissioner could rightly be "satisfied that the lot [A] . . . is not within a subdivision" so that permits should issue under Section 81Y.

It is now inconsequential that the building commissioner in all likelihood would not have made such a determination in the absence of an indorsement under Section 81P. The owners and builders have received no substantive right to which they were not entitled and no substantive provision of any by-law or statute will be violated because the indorsement remains on the plan, and the permits remain outstanding. That invalidation of the permits would bar the proposed structure because of a new zoning by-law is not a ground for relief under Section 81Y.

It is also now inconsequential that upon receipt of the plan the chairman should have submitted it to the planning board, and that the board should have placed thereon (or should have caused the applicant to place thereon) the statement that lot B was not a lot which could be used for a building and that the plan was not a plan of a subdivision.

there is no occasion to enforce the public right to have a correct indorsement on the recorded plan. No one should be misled by the existing indorsement into thinking that lot B is a lot for zoning by-law purposes.

2. The proposed substitute bill did not in terms set out the indorsement on the plan and could have been construed

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as alleging a proposal to build on a lot or lots in a subdivision. The judge, however, in passing upon the issue of amendment, was entitled to regard the allegations of the original sworn bill and of the other pleadings before him.

3. As the owners' rights do not depend upon valid action by the board we need not determine the effect of the failure to give notice to the town clerk. Lack of authority in the inspector is alleged only as a legal conclusion and, were the allegation otherwise adequate, there would be doubt whether permits could be revoked on such a ground. The allegations as to lack of authority from all the trustee owners to their coowner and to the others proposing to build add nothing to the bill.

4. There is no basis for thinking that by amendment the plaintiffs could set out a good cause under Section 81Y.

Interlocutory decrees affirmed.

Final decrees affirmed.