Carstensen v. Cambridge Zoning Bd. of Appeals

• Decision Date: 13 February 1981
• Parties: Warren CARSTENSEN v. CAMBRIDGE ZONING BOARD OF APPEALS et al. 1 (and a companion case). 2
• Court: Appeals Court of Massachusetts

Page 522

416 N.E.2d 522

11 Mass.App.Ct. 348

Warren CARSTENSEN v. CAMBRIDGE ZONING BOARD OF APPEALS et al. ¹ (and a companion case). ²

Appeals Court of Massachusetts, Middlesex.

Argued Oct. 15, 1980.

Decided Feb. 13, 1981.

Douglas A. Randall, Quincy, for the Cambridge Planning Board.

Philip M. Cronin, Boston, for Warren Carstensen.

Before BROWN, ROSE and PERRETTA, JJ.

BROWN, Justice.

This appeal is from two final judgments entered in the Land Court. In one the court affirmed a decision of the zoning board of appeals of Cambridge (zoning board) which denied an appeal from the granting of three building permits by the superintendent of buildings of Cambridge. In a companion case, consolidated with the first at trial, the Land Court annulled a decision of the zoning board revoking a fourth building permit which had been granted by the superintendent. The Cambridge planning board (planning board), intervening in both cases at trial, brought this appeal.

The findings of fact of the Land Court were largely undisputed. On July 5, 1977, due to concern over construction by the Massachusetts Bay Transportation Authority, the Cambridge planning board filed a petition with the Cambridge city council requesting it to amend its zoning ordinance. The amendment, if adopted, would have placed a temporary moratorium on development in areas of Cambridge affected by the construction. ³ The planning board held a public hearing on the petition on August 2, 1977, ⁴ and recommended favorable action on the petition to the city council on August 16, 1977. The city council took no action on the petition. On November 10, 1977, Carstensen applied for and received from the superintendent of buildings permits for the construction of four commercial "mini-warehouses." These buildings complied with the zoning ordinances in effect at that time. Following submission of a new petition for a moratorium, the planning board published notice, on December 1, 1977, of a second hearing, which was held on January 3, 1978. The board sent a second favorable recommendation to the city council, which adopted the amendment imposing a moratorium on new construction on March 13, 1978. ⁵

Meanwhile, on January 3, 1978, various neighbors of the proposed warehouse sites had written the superintendent contending that Carstensen's plans violated provisions of the zoning ordinance. After consideration of the matter, the superintendent found that one of the warehouses (Building A) projected into the neighboring "Residence C-1" zone, in which such a structure was prohibited. The superintendent directed Carstensen to submit revised plans which would comply with the ordinance. The revised plans were submitted eight days later and the superintendent took no further action. The neighbors were dissatisfied with the superintendent's actions ⁶ and appealed to the zoning board on February 15, 1978. Their contention was that all the permits were defective when issued and the defects were not cured until after the development moratorium had taken effect. The zoning board accepted this argument only as it pertained to Building A and instructed the superintendent to revoke that permit. Otherwise, it denied the neighbors' appeal. Carstensen appealed the revocation of Building A's permit to the Land Court, ⁷ and the neighbors appealed the remainder of the decision to the Superior Court. On Carstensen's motion, the cases were consolidated in the Land Court. The planning board intervened in both suits. The Land Court, after determining that the neighbors' appeal to the zoning board was seasonably filed, ruled that the decision to revoke the permit for Building A was wrong as matter of law. The court otherwise upheld the decision of the zoning board. The planning board was the only party to file a notice of appeal.

1. The initial question for our consideration is whether the neighbors' appeal was timely filed. General Laws c. 40A, § 15 (as appearing in St. 1975, c. 808, § 3), provides that "(a)ny appeal under section eight to a permit granting authority shall be taken within thirty days from the date of the order or decision which is being appealed." The appeal period for this decision therefore commenced on January 10, 1978, the date on which the superintendent replied to the neighbors' request for enforcement of the zoning ordinance, and expired on February 9, 1978. The neighbors did not file their appeal until February 15, 1978, after the expiration of the thirty-day limit. Normally, strict compliance with the rules for taking appeals is necessary and the failure to pursue such a statutory remedy within the time frame set forth deprives the appeals board of jurisdiction to review actions concerning permits. Cheney v. Dover, 205 Mass. 501, 503, 91 N.E. 1005 (1910). DelGrosso v. Board of Appeals of Revere, 330 Mass. 29, 32, 110 N.E.2d 836 (1953). Kolodny v. Board of Appeals of Brookline, 346 Mass. 285, 288, 191 N.E.2d 689 (1963). Greeley v. Zoning Bd. of Appeals of Framingham, 350 Mass. 549, 552, 215 N.E.2d 791 (1966). However, the expiration date fell during the state of emergency declared on February 7, 1978, because of the blizzard of February 6-7, 1978. See Executive Order No. 142, February 9, 1978. ⁸ By excluding each day that the state of emergency existed in computing the length of time for appeal, the Land Court determined that the appeals were timely filed. We agree.

2. The second question is whether the permits issued on November 10, 1977, after the hearing on the first petition for a development moratorium, but prior to the first published (December 1, 1977) notice of the hearing on the second petition, were subject to the development moratorium adopted in March, 1978. The Land Court ruled that they were not subject to the moratorium because they were granted prior to the first notice of the planning board hearing immediately preceding the action by the city council. The planning board argues, as it did in the Land Court, that if a proposed zoning amendment is eventually adopted despite initial inaction by the city council, it applies to any permits issued after the first official public mention of the amendment.

General Laws c. 40A, § 5 (as appearing in St. 1975, c. 808, § 3), provides that zoning ordinances or by-laws can be adopted only after a public hearing at which interested persons are given the opportunity to be heard and requires that notice of the time and place of the hearing be published once in each of two successive weeks, the first publication to be not less than fourteen days before the hearing. Any permit issued after the first publication of notice of the hearing is subject to the ordinance or by-law considered at the hearing. G. L. c. 40A, § 6 (as appearing in St. 1975, c. 808, § 3). See Doliner v. Planning Bd. of Millis, 343 Mass. 1, 6-7, 175 N.E.2d 919 (1961) (This and the following cases deal with G. L. c. 40A, § 11, as appearing in St. 1954, c. 368, § 2, the predecessor of the present c. 40A, § 6); Ouellette v. Building Insp. of Quincy, 362 Mass. 272, 278-279, 285 N.E.2d 423 (1972); Smith v. Board of Appeals of Brookline, 366 Mass. 197, 202, 316 N.E.2d 501 (1974) (Smith I); Smith v. Building Commr. of Brookline, 367 Mass. 765, 770-771, 328 N.E.2d 866 (1975) (Smith II); Collura v. Arlington, 367 Mass. 881, 888, 329 N.E.2d 733 (1975). ⁹

In the situation before us, however, the city council failed to act on the original planning board recommendation within ninety days of the first hearing. General Laws c. 40A, § 5, provides that if the city council fails to vote to adopt any proposed ordinance within ninety days after the public hearing, "no action shall be taken ... until after a subsequent public hearing is held" ¹⁰ and the notice procedure repeated. ¹¹ A purpose of this provision was to "ensure that the current views of local residents (would) be taken into account by the council when it considers a proposed ordinance." Gricus v. Superintendent & Inspector of Bldgs. of Cambridge, 345 Mass. 687, 691, 189 N.E.2d 209 (1963).

Prior to the recodification of the Zoning Enabling Act by St. 1975, c. 808, § 3, G. L. c. 40A, § 11, provided that a permit issued after publication of the first notice would not be subject to a subsequently enacted zoning ordinance if the procedures for adoption were accompanied by unreasonable delay. G. L. c. 40A, § 11, as in effect prior to St. 1975, c. 808, § 3. See Gricus v. Superintendent & Inspector of Bldgs. of Cambridge, 345 Mass. at 690-691, 189 N.E.2d 209 (ordinance invalid because adopted more than five years after public hearing (prior to enactment of St. 1961, c. 151)); Ouellette v. Building Inspector of Quincy, 362 Mass. at 279-280 n. 12 & 280, 285 N.E.2d 423 (thirteen months would constitute unnecessary delay). See also Collura v. Arlington, 367 Mass. at 888, 329 N.E.2d 733. ¹²

This provision was dropped when § 11 was rewritten in the form of the present § 6 in the 1975 recodification. In the absence of indication to the contrary, we are of the opinion that the provision was deleted, not in order to make zoning changes applicable following their first public mention regardless of the length of the interval until subsequent adoption, but rather because the provision was unnecessary in light of the subsequently adopted ninety-day requirement for enactment of ordinances. Proposed ordinances under consideration by a city council may undergo substantial changes or be abandoned entirely, see Ouellette v. Building Inspector of Quincy, 362 Mass. at 279, 285 N.E.2d 423, or be adopted several years after first being proposed. See Gricus v. Superintendent & Inspector of Bldgs. of Cambridge, 345 Mass. at 690-691, 189 N.E.2d 209. Thus, in the absence of a specifically delineated time period, the interpretation urged by the planning board could result in long periods of uncertainty when there is indefinite municipal inaction. We therefore hold that a permit issued after the first publication of notice...