17 Mass. App. Ct. 977 | Mass. App. Ct. | 1984
On January 26, 1972, San-Land filed a perimeter plan with the planning board and obtained its stamp indicating that subdivision approval was not required. See G. L. c. 41, § 81P. San-Land then filed an application with the board to build forty-nine units of multifamily housing on its land in Northampton. At the time of the application the locus was zoned Residence B, which permitted the construction of multifamily housing, subject to certain conditions. One of the conditions required that a permit be obtained from the board. Because the ordinance did not define the use of the land for multifamily housing as an “exception,” the required permit was not a “special” permit. The ordinance did not give the board discretion to grant or deny the permit; if the applicant met the conditions, the permit had to be granted.
After the master’s report was filed and various motions concerning it were heard by the judge, judgment was entered affirming the decision of the board as modified by the District Court.
1. The plaintiffs contend that the adoption of a new zoning ordinance while litigation is pending over a zoning permit issued under the prior ordinance requires that the case be dismissed as moot. Their argument is without merit. San-Land filed a perimeter plan with the planning board and received its endorsement that approval under the subdivision control law was not required. See G. L. c. 41, § 81P. In that situation G. L. c. 40A, § 6, sixth par., provides for a zoning freeze period of three years, running from the date of the endorsement of the plan. Falcone v. Zoning Bd. of Appeals of Brockton, 7 Mass. App. Ct. 710, 712 (1979). Its predecessor statute, G. L. c. 40A, § 7A, second par., as in effect prior to St. 1975, c. 808, § 3, provided the same protection. Cape Ann Land Dev.
2. The plaintiffs’ argument that the new zoning ordinance applies “to some extent” and that further hearings must be held by the board is also without merit. The statutory protection extends to “the elimination of or reduction in the kind of uses which were permitted when the plan was submitted to the planning board.” Perry v. Building Inspector of Nantucket, 4 Mass. App. Ct. 467, 471 (1976), quoting from Bellows Farms, Inc. v. Building Inspector of Acton, 364 Mass. 253, 260 (1973). Here, the use (multifamily housing) was completely eliminated by the new zoning ordinance. Thus, the statutory protection extends to San-Land, and it is not required to seek a special permit.
3. The plaintiffs contend that San-Land is not entitled to any statutory protection because it did not “actively pursue the litigation.” The judge’s findings and conclusions make no reference to any such claim, and nothing in this record indicates that it was raised below. We, therefore, will not consider it on appeal. Royal Indem. Co. v. Blakely, 372 Mass. 86, 88 (1977). We add that it was the plaintiffs who brought this litigation, not San-Land, and there is nothing in the docket that demonstrates that the plaintiffs tried to speed up the process, nor does the docket show that San-Land tried to obstruct the litigation by dilatory tactics.
Judgment affirmed.
The other conditions in the ordinance referred to questions of building height, occupancy, density, setbacks, apartment size, off-street parking, and the like.