Casasanta v. Zoning Bd. of Appeals of Milford

Decision Date09 January 1979
Citation384 N.E.2d 1218,377 Mass. 67
PartiesVictor G. CASASANTA et al. 1 v. ZONING BOARD OF APPEALS OF MILFORD.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Alix Smullin, Boston, for plaintiffs.

Edward P. Doherty, Town Counsel, Milford, Ernest P. Pettinari, Asst. Town Counsel, Milford, with him, for defendant.

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

KAPLAN, Justice.

The plaintiffs Casasanta and Bedrosian, co-owners of lot 213 of a subdivision in the town of Milford, applied to the defendant zoning board of appeals on May 2, 1977, for a variance which would permit them to build a single-family house on the lot although the minimum lot area requirement of 15,000 square feet, established by a long-standing by-law, was not met. The board held a public hearing on the matter on June 23, 1977, pursuant to notice, and at a meeting of the board on June 28 the members voted unanimously to deny the petition. A written decision with a full statement of reasons, dated July 20, 1977, was filed with the town clerk on July 22, 1977 (eighty-one days after the application). Notice of the decision was then promptly mailed to the plaintiffs and others.

Aggrieved, the plaintiffs on August 11, 1977, commenced the present action in the Superior Court to annul the board's decision. The complaint charged: First, the variance must be taken to have been granted as matter of law "constructively" granted because of the failure of the board to act within seventy-five days of the application for the variance, in accordance with G.L. c. 40A, § 15, a provision of the new zoning law enacted in its entirety by § 3 of St.1975, c. 808, approved by the Governor on December 22, 1975. Second, the denial of the variance was erroneous and illegal on the merits. Relief was prayed in the form of an annulment of the board's decision with a corresponding declaration of rights. After the defendant's appearance in the action, the plaintiffs moved for summary judgment in their favor advancing only the first ground of their complaint. The affidavits supporting and opposing the motion did little more than recount the chronology set out above, and the question as put to the judge reduced to whether it was new § 15 that controlled, or, as contended by the defendant, § 18 of the predecessor c. 40A, under which the decision of the board would not fail of effect. The judge granted summary judgment for the plaintiffs. The defendant appealed to the Appeals Court. We granted an application for direct appellate review. 2 We reverse.

We shall note the changes introduced by the new law regarding the period for action by boards of appeals on an application for a variance, and regarding the consequences of inaction. Then we shall look to the new law to discover the date when boards of appeals were bound to begin to comply with these changes of practice.

Section 18 of the old law 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"; but this court held in Cullen v. Building Inspector of N. Attleborough, 353 Mass. 671, 679, 234 N.E.2d 727 (1968), that the period mentioned in that section was ordinarily to be taken as directory rather than mandatory. Under that dispensation, the board's decision herein would be held not invalidated through lack of timeliness. See also Shuman v. Aldermen of Newton, 361 Mass. 758, 764 n. 9, 282 N.E.2d 653 (1972); Scott v. Board of Appeal of Wellesley, 356 Mass. 159, 162, 248 N.E.2d 281 (1969); Crosby v. Board of Appeals of Weston, 3 Mass.App. 713, ---, 323 N.E.2d 772 (1975). 3 Under § 15 of the new law, "(t)he decision of the board shall be made within seventy-five days after the date of the filing of an appeal, application or petition except in regard to special permits . . .. 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." 4 Thus the stated period was extended, but it would appear that the softening influence of the Cullen case was removed.

We have next to consider the text of St.1975, c. 808, § 5, second paragraph, and § 7, setting forth the effective dates of the new zoning statute to provide transition from the old to the new. The former provision was reconstituted for purposes of clarity as part of § 7 by St.1977, c. 829, §§ 3G, 4. 5 Section 7 provides:

"This act shall take effect on (January 1, 1976) as to zoning ordinances and by-laws and amendments, other than zoning map amendments, adopted after said date.

"Zoning ordinances and by-laws in effect on said date shall continue to be governed by the provisions of (G.L. c. 40A) in effect prior to said date until this act is accepted by each respective city or town, provided that no later than (June 30, 1978) all zoning ordinances and by-laws shall be brought into conformity with the provisions of this chapter and shall be governed hereby, and thereafter no provisions of (c. 40A) in effect prior to (January 1, 1976) shall govern zoning ordinances and by-laws."

Statute 1975, c. 808, contains no emergency preamble, but the Governor on the date of his approval, December 22, 1975, filed with the Secretary of the Commonwealth a declaration that the chapter was an emergency law and should take effect forthwith (1975 Acts and Resolves at 1132-1133).

Under § 7 there seems no doubt that the new law as a whole was to take effect "as to" municipal ordinances, by-laws, and amendments (other than map changes), adopted after January 1, 1976, on the respective dates of their adoption. But ordinances and by-laws in operation on January 1, 1976, were to continue to be "governed by" the provisions of the old law until the new law was accepted by the particular municipality; 6 failing such acceptance, then to the extent these ordinances and by-laws were not earlier brought into conformity with the new law, they would be finally governed by the new law on June 30, 1978.

The plaintiffs suggest that in referring to ordinances and by-laws operative on January 1, 1976, and to their delayed supersession by the new law, the Legislature was pointing to the substantive content of both the municipal provisions and the provisions of the new law, and was not addressing itself to matters of procedure or administration. As to the latter, the plaintiffs argue the new law went into effect immediately pursuant to the Governor's emergency declaration. 7

There may be some plausibility in reading the second paragraph of § 7 as concerned only with substance (the "brought into conformity" may have such a ring), but that interpretation has only a surface appeal, as it would seem to limit artificially and improperly both the expression "the provisions" (of the old law) and the words "governed by" (or variant) appearing in that paragraph. So we think the application of the provisions of the new law about procedure or administration was postponed, equally with the substantive provisions, as far as existing zoning ordinances and by-laws were concerned. If a doubt remained on the score of the meaning of the language, one would be entitled to consider the functional suitability of the competing interpretations, and here the plaintiffs' interpretation would be deeply undesirable. Any attempt to distinguish in actual day to day operations between substance, on the one hand, and procedure or administration, on the other, with effective dates differing as to the two categories, would encounter the difficulties notoriously met in myriad contexts in efforts to separate substantive from adjective law. See City Council of Waltham v. Vinciullo, 364 Mass. 624, 626-627, 307 N.E.2d 316 (1974). 8 The point was made convincingly by Armstrong, J., writing in a case similar to the present, Shalbey v. Board of Appeals of Norwood, 6 Mass.App. --- A, 378 N.E.2d 1001 (1978), 9 decided by the Appeals Court while the present appeal was pending. 10 We need not add to his remarks. 11 We observe, too, that a number of the phases of the new law that could be called procedural or administrative were more onerous than their earlier counterparts, so the need for a breathing space to allow the officials and the public to accommodate to them might be thought apparent to a legislative draftsman. 12

It may be objected that our conclusion leaves nothing on which the Governor's emergency declaration could operate, but the supposed embarrassment is quite unreal. The new law, in the absence of an emergency preamble in its text, would not of itself have gone into effect before the ninetieth day after its approval by the Governor. See art. 48 of the Amendments to the Constitution of the Commonwealth, The Referendum, I. But the law stated that some of its provisions should become effective before the ninety days. In this situation, it was advisable for the Governor to make an emergency declaration to assure that the legislative design would be achieved. 13

Finally, we note that counsel for the plaintiffs refer to a memorandum, without date, stated to be from the zoning subcommittee of the House Committee on Urban Affairs to the Massachusetts Federation of Planning Boards. This indicated that "procedural actions" should be in accordance with various enumerated sections of new c. 40A, including § 15, "unless your community's ordinance or by-law specifically contains a different provision." Literally this proposition would favor the plaintiffs, but it does not appear compatible with § 7. By its enumeration of sections of the new law presumably believed to be procedural, the memorandum demonstrates dramatically the difficulty of the substance-procedure distinction. 14

The summary judgment should be vacated and the case remanded to the Superior Court for further proceedings. 15

So ordered.

1 Mikael Bedrosian.

2 There was a...

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