Burwick v. Zoning Bd. of Appeals of Worcester

• Decision Date: 06 February 1974
• Citation: 1 Mass.App.Ct. 739,306 N.E.2d 455
• Parties: John J. BURWICK v. ZONING BOARD OF APPEALS OF WORCESTER (and two companion cases).
• Court: Appeals Court of Massachusetts

Page 455

306 N.E.2d 455

1 Mass.App.Ct. 739

John J. BURWICK v. ZONING BOARD OF APPEALS OF WORCESTER (and two companion cases).

Appeals Court of Massachusetts, Worcester.

Argued Jan. 17, 1974.

Decided Feb. 6, 1974.

Walter J. Griffin, Holyoke, Richard M. Wall, Worcester, with him, for Marjorie S. Glazer and others.

Laurence S. Fordham, John D. Leubsdorf, Boston, with him, for John J. Burwick.

Before HALE, C.J., and ROSE, GOODMAN, GRANT and ARMSTRONG, JJ.

GRANT, Justice.

These are various proceedings in equity brought under G.L. c. 40A, § 21 (as most recently amended by St.1972, c. 334), by the applicant (Burwick) and by certain abutters which draw into question the regularity of certain actions taken by the zoning board of appeals of Worcester (board) on an application for a special permit to use the locus for multi-family dwellings. The abutters have appealed from a final decree which contains within it certain ultimate findings (to be discussed) voluntarily made by the trial judge and which, in effect, determined that a decision rendered by the board on June 13, 1973, did not exceed the authority of the board. The evidence is reported. We make such findings of fact as are necessary to illuminate and dispose of the questions which have been raised and argued. Simeone Stone Corp. v. Oliva, 350 Mass. 31, 37, 213 N.E.2d 230 (1965).

1. By virtue of a vote of the city council of Worcester adopted on December 29, 1970, the zoning ordinance of the city was apparently amended in such fashion as to place the locus in an RL--7 zoning district, in which certain types of multi-family dwellings are permitted if a special permit therefor is first obtained from the board of appeals under the provisions of G.L. c. 40A, § 4, as amended, and under specific sections of the ordinance. On May 14, 1971, litigation was commenced in the Superior Court by all but one of the abutters in this case challenging the validity of the amendment to the zoning ordinance. On May 9, 1972, Burwick made the application to the board for a special permit which has given rise to the present controversy. On June 21, 1972, the board held a public hearing on the application, at the conclusion of which the members voted unanimously to grant the application in question but to withhold the issuance of any formal decision because of the continued pendency of the aforementioned litigation in the Superior Court. At that time all the members of the board signed a copy of the site plan submitted by the applicant and orally agreed on the specific conditions and safeguards which should be inserted in any formal decision which might subsequently be issued. The litigation in the Superior Court was terminated by the entry on April 2, 1973, of a declaratory decree which, in effect, determined the 1970 amendment of the zoning ordinances to be valid as it affected the locus. On May 9, 1973, all the members of the board signed a form of decision which, by its terms, granted a special permit to Burwick and set out conditions and safeguards which were objectionable to Burwick and which differed materially from those orally agreed upon by the board on June 21, 1972. On June 13, 1973, all the members of the board signed another form of decision which, by its terms, granted a special permit to Burwick and set out conditions and safeguards which are consistent with the aforementioned site plan, are acceptable to Burwick, and are substantially identical with those orally agreed upon by the board on June 21, 1972.

The trial judge, who also heard and determined the earlier proceedings with respect to the amendment to the zoning ordinance, found that the form of decision dated May 9, 1973, was signed by the members of the board on that date 'through mistake and error, in the mistaken and erroneous belief that they were signing what they had unanimously voted on June 21, 1972,' and further found, in effect, that the form of decision dated June 13, 1973, expressed the intention of the board in accordance with its vote of June 21, 1972. We do not pause to recite the evidence which led to the judge's conclusions; it is sufficient to say that '(w)e are of opinion that the judge's findings 'were not wrong, much less plainly wrong. '' Broderick v. Board of APPEAL OF BOSTON, MASS. (1972), 280 N.E.2D 670, 675.^A The judge declared null and void the 'purported decision' of May 9, 1973, and determined the 'decision' of June 13, 1973, to be valid and in full force and effect.

Those rulings were correct. The board had the power, without holding a further public hearing, to correct an inadvertent (and essentially clerical) error in the form of decision signed on May 9, 1973, so that the record would reflect the true intention of the board. Fortier v. Department of Pub. Util., 342 Mass. 728, 732, 175 N.E.2d 495 (1961). See also Almeida Bus Lines, Inc. v. Department of Pub. Util., 348 Mass. 331, 340--341, 203 N.E.2d 556 (1965). Cf. Dion v. Board of Appeals of Waltham, 344 Mass. 547, 552--553, 183 N.E.2d 479 (1962). The action taken on June 13, 1973, was not an instance of a 'reversal of a conscious decision' (CASSANI V. PLANNING BD. OF HULL, MASS.APP. (1973), 300 N.E.2D 746)^B or one (as in POTTER V. BOARD OF APPEALS OF MANSFIELD, MASS.APP. (1973), 294 N.E.2D 587)^C in which a board has subsequently purported to grant relief different from that originally sought and aired at an advertised public hearing.

2. The abutters contend that the decision of June 13, 1973, should be held invalid because of the board's failure to comply with a number of the provisions of G.L. c. 40A, § 18 (as most recently amended by St.1971, c. 1018), including failures (a) to adopt rules for conducting its business, (b) to make a decision within sixty days of the filing of the application, (c) to make a detailed record of its proceedings showing the vote of each member and setting forth clearly the reasons for its decision, and (d) to file a copy of its decision in the office of the planning board within fourteen days of the decision. The portions of § 18 relied on by the abutters are set forth in the margin. ¹

(a) The evidence as to whether the board had adopted rules for the conduct of its business was indecisive. No such rules were produced. The abutters do not identify the subjects they would like to see covered by any such rules, nor do they suggest how the existence of such rules or the board's adherence thereto might have benefited them or obviated this litigation. Compare Zartarian v. Minkin, 357 Mass. 14, 16--18, 255 N.E.2d 362 (1970); Yahnel v. Board of Adjustment of Jamesburg, 76 N.J.Super. 546, 550, 185 A.2d 50 (1962).

(b) The provision of § 18 with respect to the board's making its decision within sixty days of the filing of the application for a special permit has been held to be directory rather than mandatory. Cullen v. Building Inspector of No. Attleborough, 353 Mass. 671, 679--680, 234 N.E.2d 727 (1968). See also Scott v. Board of Appeal of Wellesley, 356 Mass. 159, 162, 248 N.E.2d 281 (1969); SHUMAN V. ALDERMEN OF NEWTON, MASS. (1972), 282 N.E.2D 653.^D The major portion of the delay in this case was pursuant to a vote of the board that it should await the outcome of pending litigation which would determine whether the board would have the power to issue a special permit or would be forbidden to do so by the provisions of G.L. c. 40A, § 12. Compare BELFER V. BUILDING COMMR. OF BOSTON, MASS. (1973), 294 N.E.2D 857.^E Contrast MURPHY V. SELECTMEN OF MANCHESTER, MASS.APP. (1973), 298 N.E.2D 885^F.

(c) In essence, the members of the board signified their general approval of the application when they signed the aforementioned site plan at the conclusion of the hearing held on June 21, 1972. It may be inferred that that plan was available in the records of the board which, by tradition (if not by law), were kept and maintained by the city clerk. The decision of June 13, 1973, filed in the office of the city clerk on that date: recites that a view of the locus was taken by the members of the board in advance of the public hearing held on June 21, 1972; contains what appears to be a copy of the rather detailed and comprehensive application for the special permit; contains a list of the names and addresses of the persons notified of the hearing and a statement of the dates of notices of the hearing which had been published in a Worcester newspaper; identifies the three regular members of the board present at the hearing; identifies by name and address a number of individuals recorded as in favor of or opposed to the application; contains a number of specific and general findings made by the board, including in the latter category a finding that 'the proposed use would be in harmony with the general purpose and intent of the Zoning Ordinance'; contains a statement of the reasons relied on by the board for reaching the quoted conclusion; recites a vote by the board to authorize the issuance of a special permit on a number of explicitly stated conditions; and bears the signatures of all three members of the board. See, in this connection, the discussion of a like decision found in the case of Zartarian v. Minkin, 357 Mass. 14, 17--18, 255 N.E.2d 362 (1970). When the members of the board discovered the mistake involved in their signing the May 9, 1973, form of decision they all...