DiGiovanni v. Board of Appeals of Rockport

• Decision Date: 01 April 1985
• Parties: Joseph P. DiGIOVANNI et al. 1 v. BOARD OF APPEALS OF ROCKPORT et al. 2
• Court: Appeals Court of Massachusetts

Page 198

474 N.E.2d 198

19 Mass.App.Ct. 339

Joseph P. DiGIOVANNI et al. ¹ v. BOARD OF APPEALS OF ROCKPORT et al. ²

Appeals Court of Massachusetts Essex.

Argued Sept. 13, 1984.

Decided Feb. 13, 1985.

Further Appellate Review Denied April 1, 1985.

David Lee Turner, Boston, for defendants.

Walter H. McLaughlin, Jr., Boston, for plaintiffs.

Before WARNER, KAPLAN and ROSE, JJ.

ROSE, Justice.

The board of appeals of Rockport (board) appeals from the judgment of the District Court (denominated "Findings of the Court") annulling the board's decision that partially denied DiGiovanni's petition for a variance. ³ The board also contests the order of the District Court judge purporting to reinstate DiGiovanni's building permits. In the District Court, DiGiovanni successfully argued that a petition he submitted to the board on February 12, 1982, was constructively granted because the board did not act upon it within the statutory time limit. The judge also accepted his alternative argument that the board acted arbitrarily in denying him all the relief requested in a second, March 5, 1982, petition.

The relevant facts may be summarized as follows. In 1978, DiGiovanni obtained a variance from the board to construct a cluster development on Rowe Point in Rockport. This variance was granted for a development "as shown by the plans submitted to (and on file with) this Board." At subsequent meetings, DiGiovanni asserts, he showed the board plans ("1980 plans") that disclosed modifications of the 1978 plans, including, among other things changes in the location, orientation and design of the buildings. DiGiovanni concedes, however, that he never specifically called these modifications to the board's attention. Later, the Rockport building inspector issued foundation and building permits on the basis of the 1980 plans.

After DiGiovanni had poured eighteen foundations and substantially completed four units, the building inspector issued a stop work order. The building inspector's letter explained that the order was issued because construction was not in accordance with DiGiovanni's 1978 plans. It went on to state that DiGiovanni could request a modification of the 1978 variance or appeal the stop work order to the board pursuant to G.L. c. 40A, § 15. ⁴

The form the board provides for zoning-related matters contains four "boxes." Applicants mark a box to indicate whether they are seeking a special permit or a variance or are taking an appeal from an attached decision. For the uncertain, a fourth box, marked "and such other and further relief as the Board deems appropriate," is provided. On February 12, 1982, DiGiovanni filed with the town clerk a form that requested "and such other and further relief as the Board deems appropriate." Specifically, he asked that the board grant "further relief from the plans that are on file with the Board of Appeals" concerning "Knowlton's Field." ⁵ He did not attach the building inspector's stop work order to the form (as is required for "appeals"), nor did he specify what "further relief" he wanted.

On February 23, 1982, DiGiovanni met informally with the board. The substance of the discussion, as reflected by the minutes, was that DiGiovanni felt he was in substantial compliance with the 1978 plans. The board, however, apparently felt that a public hearing and modification of the variance would be required before he could continue construction.

On March 5, 1982, DiGiovanni filed a second application with the town clerk. Although he checked none of the boxes on this application, he specified therein that this version was a "[p]etition ... for modification of [a] variance ... so that the building configurations and placements can be as shown on the [modified] plan ... attached hereto."

What subsequently became of the February 12 application was the subject of conflicting testimony at trial. The town clerk recalled that he had returned the application to DiGiovanni on March 5. DiGiovanni had no such recollection. The board's secretary testified that her files contained no February 12 form. The town clerk testified that the log he kept of zoning-related applications contained no record of the February 12 application. He further stated that no copy of the form remained in his office after he returned the February 12 application to DiGiovanni. The clerk admitted that he did not usually return such documents to applicants. DiGiovanni had two copies of the February 12 application in his possession. One bore the clerk's "original" stamp, the other was a photocopy. The town clerk could not remember whether DiGiovanni had submitted two copies and had both stamped or whether there was only one stamped copy of which a photocopy was made for DiGiovanni's records. ⁶

On March 30, 1982, the board held a hearing on DiGiovanni's March 5 application. In the course of that meeting DiGiovanni's lawyer stated that "[w]e have appealed the decision of the Building Inspector." Later, the lawyer asserted, "We are asking for relief. We did miscalculate. There's no question about it." The board's decision, filed May 12, 1982, treated DiGiovanni's application as a petition for modification of the 1978 variance. The board granted some relief but denied several of DiGiovanni's requests.

Pursuant to G.L. c. 40A, § 17, DiGiovanni appealed to the District Court. The trial judge found, in substance, that DiGiovanni's February 12 application was an appeal of the stop work order, and was constructively granted because the board failed to act upon it within the time limit specified by G.L. c. 40A, § 15. He found that the board's secretary picked up applications once a week on Friday and that DiGiovanni's February 12 application was found in a board file folder. The judge further found that even if the February 12 application had been a request for modification of the 1978 variance, DiGiovanni was entitled to the variance as a matter of right. He also found that the 1978 plans were not made a part of the 1978 variance, that DiGiovanni was not bound to follow the 1978 plans exactly, and that Rockport was "estopped" to contest changes in setback that resulted from the requirements of the town's conservation commission. The judge found that changes in the orientation of the buildings were not substantial or significant deviations from the 1978 variance and that the changes were in any event available for the board's consideration, if not impliedly approved, in 1980.

Based on these findings, the trial judge ruled that the building inspector's stop work order should not have been issued because it was not based "on any substantial evidence"; that the March 5 application was unnecessary and a "nullity"; and that the board's May 12 decision was "arbitrary and not supported by fact or law." The judge, in effect, ordered the building inspector to reissue building permits and ordered vacated "any order, decision, condition, or requirement" of the town of Rockport subsequent to the stop work order.

We review the trial judge's findings and conclusions under Mass.R.Civ.P. 52(a), 365 Mass. 816 (1974). Findings of fact will not be set aside unless they are clearly erroneous, that is, when there is no evidence to support them or when, "although there is evidence to support [them], the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, 160-161, 360 N.E.2d 1051 (1977), quoting from United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). The judge's conclusions of law are not binding on this court. Newburyport Soc. for the Relief of Aged Women v. Noyes, 287 Mass. 530, 532-533, 192 N.E. 54 (1934).

1. Order Reinstating Building Permits.

It is well settled in Massachusetts that a "court hearing an appeal from the grant or denial of a variance or a special permit is without administrative discretion.... [A court may not substitute] forms of relief different from those originally asked for...." Geryk v. Zoning Appeals Bd. of Easthampton, 8 Mass.App. 683, 684-685, 396 N.E.2d 733 (1979). The only relief DiGiovanni requested from the board was a modification of his 1978 variance. The trial judge's characterization of DiGiovanni's February 12 application as an appeal from the building inspector's stop work order is erroneous. If a somewhat ambiguously worded document is understood by all concerned to be a request for a specific form of relief, the notice requirements of G.L. c. 40A, § 15, are satisfied. We do not exalt form over substance in such a case. See Dion v. Board of Appeals of Waltham, 344 Mass. 547, 553-554, 183 N.E.2d 479 (1962); Spalke v. Board of Appeals of Plymouth, 7 Mass.App. 683, 685, 389 N.E.2d 788 (1979). Here, however, DiGiovanni's February 12 application cannot be construed as an appeal founded on the theory that the building inspector's stop work order was wrong as matter of law. ⁷ The form of relief he requested was "and such other and further relief as the Board deems appropriate," and "further relief from the plans that are on file with the Board of Appeals." No "relief" from the previously filed plans would have been needed if DiGiovanni had intended to assert that his present construction was in substantial compliance with the 1978 variance and that the building inspector had erroneously revoked his permit.

The statutory requirement that § 15 appeals from the decisions of building inspectors "specify[ ] the grounds thereof" we understand as mandatory rather than directory. Generally, boards of appeals are without power to act upon appeals in the absence of public hearings of which the public has been previously notified. ⁸ The board cannot undertake to notify the public of a hearing unless the board itself has adequate notice of the form of relief petitioners request. ⁹ Because neither the February 12 nor the March 5 petition...