Capone v. Zoning Bd. of Appeals of Fitchburg

• Decision Date: 06 July 1983
• Citation: 389 Mass. 617,451 N.E.2d 1141
• Parties: Francis W.R. CAPONE et al. 1 v. ZONING BOARD OF APPEALS OF FITCHBURG et al. 2 Dennis SYRIOPOULOS et al. 3 v. Francis W.R. CAPONE et al. 4
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1141

451 N.E.2d 1141

389 Mass. 617

Francis W.R. CAPONE et al. ¹ v. ZONING BOARD OF APPEALS OF FITCHBURG et al. ²

Dennis SYRIOPOULOS et al. ³ v. Francis W.R. CAPONE et al. ⁴

Supreme Judicial Court of Massachusetts,

Worcester.

Argued Feb. 10, 1983.

Decided July 6, 1983.

Robert B. Bowen, Fitchburg (Arthur Haley, Westminster, with him), for Dennis Syriopoulos and another.

Steven B. DiPace, Fitchburg, for Francis W.R. Capone and another.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS and LYNCH, JJ.

LYNCH, Justice.

These two appeals raise related questions concerning the construction of two sections of G.L. c. 40A, The Zoning Act. The first case (Capone) is here on appeal from a decision of the Appellate Division of the District Courts which was rendered prior to our decision in Walker v. Board of Appeals of Harwich, 388 Mass. 42, 445 N.E.2d 141 (1983). ⁵ The second case (Syriopoulos) which is an appeal from a decision of the Superior Court is here on our allowance of an application for direct appellate review. The Capone case requires us to construe those provisions of G.L. c. 40A, § 15, which attempt to define the circumstances under which a party's petition for zoning relief will be deemed to have been constructively granted by inaction of a zoning board of appeals. In the Syriopoulos case the parties ask us to determine the time within which a person aggrieved by a decision of a zoning board of appeals under G.L. c. 40A, § 15, must file an appeal under the judicial review provisions of G.L. c. 40A, § 17. ⁶ Although these appeals result from two separate judicial proceedings below, we decide them together since they involve the same parties and arise from the same facts.

The facts are as follows. On July 16, 1980, the superintendent of buildings of Fitchburg notified Francis W.R. Capone and Helen Capone (Capones) by letter that they were improperly conducting a commercial landscaping business in a residential zone. On September 10, 1980, the Capones filed a petition with the Fitchburg board of zoning appeals (board) seeking an interpretation that their premises were not being used in violation of the applicable zoning ordinance. The board held a public hearing on the Capones' petition on October 20, 1980. At a public meeting on November 6, 1980, notice of which had been duly posted, the board voted to deny the Capones' petition. This occurred fifty-seven days after the Capones filed their petition. On December 29, 1980, 110 days after the petition was filed, the board filed a written decision with a full statement of reasons with the city clerk.

On January 16, 1981, the Capones filed a complaint in the District Court of Fitchburg pursuant to the judicial review provisions of G.L. c. 40A, § 17. The complaint sought to annul the board's decision. The Capones alleged that the relief requested in the original petition was constructively granted because the board had failed to file its decision with the city clerk within seventy-five days of the day the petition was filed. After the board entered an appearance in the case, the Capones moved for summary judgment on the ground that the board had failed to act in a timely fashion as required by statute.

On March 26, 1981, Dennis and Joan Syriopoulos (Syriopouloses), whose property abuts the Capones' property, filed a motion to intervene, which was allowed with the consent of all parties. On June 4, 1981, the District Court granted the Capones' motion for summary judgment and judgment was entered for them. Both the board and the Syriopouloses claimed a report to the Appellate Division of the District Courts, which affirmed the judgment of the District Court and ordered the report dismissed. The Syriopouloses appealed to this court from that decision.

In addition, on June 25, 1981, following the entry of judgment for the Capones in the District Court, the Syriopouloses filed a complaint in the District Court against the board and the Capones. This complaint purported to be an appeal under the provisions of G.L. c. 40A, § 17. The Syriopouloses alleged that following the entry of summary judgment by the District Court on June 4, 1981, they became "person[s] aggrieved," under G.L. c. 40A, § 17, with the right to judicial review. The board then claimed a trial of the appeal in the Superior Court pursuant to § 17, and the case was removed to that court. The Capones filed a motion for summary judgment and a motion to dismiss alleging that the Syriopouloses' "appeal" under G.L. c. 40A, § 17, was not timely because it had been filed more than twenty days after the board had constructively granted their petition and thus the "appeal" failed to conform to the requirements of § 17. The Superior Court denied the Capones' motions and the "appeal" was submitted to the court on a statement of agreed facts. The court entered judgment for the Syriopouloses ruling that the Capones' use of their premises for a landscaping business violated the Fitchburg zoning ordinance. The Capones appealed from this judgment.

1. The first question is whether the board's failure to file its written decision in a timely manner as mandated by § 15 resulted in a constructive grant of the relief sought. In pertinent part, G.L. c. 40A, § 15, as appearing in St.1975, c. 808, § 3, states: "All hearings of the board of appeals shall be open to the public. The decision of the board shall be made within seventy-five days after the date of the filing of an appeal, application or petition .... Failure by the board to act within said seventy-five days shall be deemed to be the grant of the relief, application or petition sought, subject to an applicable judicial appeal as provided for in this chapter. The board shall cause to be made a detailed record of its proceedings ... setting forth clearly the reason or reasons for its decision and of its official actions, copies of all of which shall be filed within fourteen days in the office of the city or town clerk and shall be a public record; and notice of the decision shall be mailed forthwith to the petitioner, applicant or appellant, [and] to the parties in interest designated in section eleven .... Each notice shall specify that appeals, if any, shall be made pursuant to section seventeen and shall be filed within twenty days after the date of filing of such notice in the office of city or town clerk" (emphasis added). The Capones contend that the statute requires the board not only to make its decision but also to file its decision with the city clerk in order to prevent a petition from being constructively granted.

The addition of G.L. c. 40A, § 15, to the zoning law by St.1975, c. 808, § 3, changed prior law. We previously had interpreted the predecessor section to G.L. c. 40A, § 15, G.L. c. 40A, § 18, as amended through St.1971, c. 1018 (which had stated that "[t]he decision of the board shall be made within sixty days after the date of the filing of an appeal, application or petition"), as establishing only a directory procedure rather than a mandatory one. See Cullen v. Building Inspector of N. Attleborough, 353 Mass. 671, 679, 234 N.E.2d 727 (1968). However, as we stated in Casasanta v. Zoning Bd. of Appeals of Milford, 377 Mass. 67, 70, 384 N.E.2d 1218 (1979), when the Legislature passed § 15 of the current law, it both extended the statutory time period for the board to make a decision and removed the "softening influence of the Cullen case." The intent of the Legislature, as we recognized in Rinaudo v. Zoning Bd. of Appeals of Plymouth, 383 Mass. 885, ---, 421 N.E.2d 439 (1981), Mass.Adv.Sh. (1981) 1244, 1244, was to "[obligate] a board of appeals to act on an appeal within the statutory time period, otherwise the appellant prevails by default." Id.

The Rinaudo decision focused on that portion of the statute which requires the board "to act" within said seventy-five days and concluded that the board's failure to comply with that part of the statute resulted in a constructive grant of the petition. In this case, we must determine whether the same sanction applies when a board of appeals makes a decision within seventy-five days but fails to comply with the statutory requirement that it file its decision "within fourteen days." We conclude that the same result is required. ⁷

We recognize that this part of the statute is ambiguous. In our construction of the statute, though, we are guided by the principle that, "[w]here the draftsmanship of a statute is faulty or lacks precision, it is our duty to give the statute a reasonable construction." School Comm. of Greenfield v. Greenfield Educ. Ass'n, 385 Mass. 70, 79-80, 431 N.E.2d 180 (1982). Additionally, we must construe the statute "in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated." Industrial Fin. Corp. v. State Tax Comm'n, 367 Mass. 360, 364, 326 N.E.2d 1 (1975), quoting from Hanlon v. Rollins, 286 Mass. 444, 447, 190 N.E. 606 (1934). We conclude that the board's failure to perform all of the statutorily required actions will result in the constructive grant of the relief sought. The purpose of this portion of the statute, together with its requirement that the board make its decision within seventy-five days, is to induce the board to act promptly. See Noe v. Board of Appeals of Hingham, 13 Mass.App. 103, 110, 430 N.E.2d 853 (1982) (Dreben, J., dissenting).

The conclusion is buttressed by consideration of the judicial review provisions of G.L. c. 40A, § 17, as amended by St.1978, c. 478, § 32. This section directs a person aggrieved by a decision of the board of appeals to bring an action in the proper court "within twenty days after the decision has been filed in the office of the city or town clerk" (emphasis added). Therefore, the filing of the decision is necessary to limit the period in which appeals may be taken under § 17....