Hunters Brook Realty Corp. v. Zoning Bd. of Appeals of Bourne

• Citation: 436 N.E.2d 978,14 Mass.App.Ct. 76
• Parties: HUNTERS BROOK REALTY CORPORATION v. ZONING BOARD OF APPEALS OF BOURNE.
• Decision Date: 24 June 1982
• Court: Appeals Court of Massachusetts

Page 978

436 N.E.2d 978

14 Mass.App.Ct. 76

HUNTERS BROOK REALTY CORPORATION v. ZONING BOARD OF APPEALS OF BOURNE.

Appeals Court of Massachusetts, Barnstable.

Argued April 21, 1982.

Decided June 24, 1982.

Robert Sweeney Troy, Buzzards Bay, Town Counsel, for defendant.

Richard C. Anderson, Hyannis, for plaintiff.

Before GREANEY, CUTTER and DREBEN, JJ.

GREANEY, Justice.

The last paragraph of G.L. c. 40A, § 10, as amended by St.1977, c. 829, § 4B, provides that "(i)f the rights authorized by a variance are not exercised within one year of the date of grant of such variance they shall lapse, and may be reestablished only after notice and a new hearing pursuant to this section." The issue in this case is whether the holder of a variance which has lapsed must show anew that he is entitled to the variance in order to reestablish it. We conclude that he must, i.e., that the reestablishment of a lapsed variance requires a new showing which satisfies the criteria for the grant of a variance set out in § 10. ¹ Accordingly, we reverse a decision of the Superior Court which held that the reestablishment of a lapsed variance requires only a showing that conditions relating to the grant of the variance have not changed materially since the date of its approval.

The case was presented on a statement of agreed facts and exhibits, from which we draw the following summary. The plaintiff is the owner of 49.33 acres of land located in the town of Bourne. The plaintiff sought to construct on this land an open space community consisting of a mixture of town houses and cluster homes. The parcel, however, is located partly in a district zoned residential and partly in a district zoned for scenic development. On February 15, 1977, the plaintiff filed with the Zoning Board of Appeals of Bourne (board), see G.L. c. 40A, §§ 8, 10, 15, an application for variances from town by-laws governing the intensity of use and dimensions of the parcel. ² After appropriate notice and hearing, the board granted the requested variances by decision dated August 9, 1977.

Within the statutory appeal period, the planning board of Bourne commenced an action in the Barnstable Superior Court challenging the grant of the variances. The parties ultimately settled that action, and a "(j)udgment by (a)greement" entered on June 30, 1978. That judgment provided (a) that the plaintiff's request to construct 107 units was "deemed denied by withdrawal"; (b) that no new request for variance of the density requirements would be made by the plaintiff for a period of two years; (c) that the variances granted by the board were "upheld"; and (d) that the plaintiff could proceed to develop the project subject to certain enumerated requirements. ³ The rights authorized by the variances were not exercised within one year of the entry of the judgment. ⁴ On July 5, 1979, the plaintiff filed with the board an application which sought to reestablish the variances pursuant to G.L. c. 40A, § 10. On October 9, 1979, after proper notice and hearing, the board filed a decision with the town clerk denying that application. ⁵

The plaintiff next commenced an action in the Superior Court seeking to overturn the board's decision. The case was heard on the same record as is before us. The judge filed a memorandum of decision in which he ruled that "at a hearing to reestablish lapsed rights granted by a previous variance, an applicant is not faced with the burden of again proving compliance with the statutory variance criteria set forth in G.L. (c.) 40A, (s) 10." Based on that ruling, he framed the issue before the board as "whether, since the granting of the variance, there has been a change in zoning ... (requirements or) in the nature or character of the area, or whether other significant conditions or circumstances have developed" (emphasis original), and further ruled that "the decision ... should be based only upon a consideration of such factors." Since the judge found that "(n)o evidence was presented of any such change," he concluded that the board's decision to deny relief was based on "legally untenable grounds" and was "unreasonable and arbitrary." A judgment entered annulling the board's decision as in excess of its authority, and adjudging that "the rights authorized by the variances granted to the plaintiff ... by (the board's initial) decision ... are reestablished. ⁶

The words used in § 10 are to be construed according to their "common and approved usage." See G.L. c. 4, § 6; Commissioners of Pub. Works v. Cities Serv. Oil Co., 308 Mass. 349, 360, 32 N.E.2d 277 (1941); Board of Assessors of Amherst v. State Tax Commn., 357 Mass. 505, 507, 258 N.E.2d 539 (1970). The operative words of the statute provide that variance rights which are not timely exercised "shall lapse, and may be reestablished only after notice and a new hearing pursuant to this section" (emphasis supplied). The word "shall," used with reference to the lapse, ordinarily connotes an imperative obligation, see Johnson v. District Attorney for the No. Dist., 342 Mass. 212, 215, 172 N.E.2d 703 (1961), while the word "may," used with reference to the reestablishment, is customarily a permissive term which imports the existence of discretion, see Brennan v. Board of Election Commrs. of Boston, 310 Mass. 784, 786, 39 N.E.2d 636 (1942); Cline v. Cline, 329 Mass. 649, 652, 110 N.E.2d 123 (1953); Turnpike Amusement Park, Inc. v. Licensing Commn. of Cambridge, 343 Mass. 435, 437, 179 N.E.2d 322 (1962). By ordinary lay definitions, the word "lapse" means "to become void or ineffective," American Heritage Dictionary 737 (1976), or to "lose, forfeit ... (or) nullify." Websters Third New Intl. Dictionary 1272 (1971). Its legal definition signifies a "termination or failure of a right or privilege through neglect to exercise it within some limit of time, or through failure of some contingency." Black's Law Dictionary 792 (5th ed. 1979). In addition, the word "pursuant" is a "restrictive term" which means "in conformance to or agreement with." Id. at 1112. Based on these simple and straightforward definitions, the words used in the last paragraph of § 10, read in context with the rest of the statute, convey the clear impression that variance rights which are not seasonably exercised will automatically become void; that the holder of a lapsed variance who seeks to reestablish his rights must initiate a new proceeding under § 10; that he must therefore make a new showing of the requirements set out in the first paragraph of that statute; and that it is for the board, as before, to decide the matter in the exercise of its discretion. See Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555, 559-560, 120 N.E.2d 916 (1954). We find nothing in the wording of § 10, or elsewhere in G.L. c. 40A, which logically supports an interpretation like that reached below.

Any doubt in the matter is put to rest by an examination of the statute's legislative history. ⁷ See Worcester v. Quinn, 304 Mass. 276, 281, 23 N.E.2d 463 (1939), and cases cited; Aldoupolis v. Commonwealth, 386 Mass. 260, 264, 435 N.E.2d 330 (1982). The new zoning enabling act sought to eliminate problems which had arisen under the old statute by providing "standardized procedures for the administration ... of municipal zoning laws." St.1975, c. 808, § 2A. One such problem had been the lack of any provision in the prior G.L. c. 40A for the loss of variance rights by a failure to exercise them, or by a delay in doing so. The Department of Community Affairs (DCA), which had been designated by the Legislature to investigate the need for a comprehensive revision of G.L. c. 40A, ⁸ and to prepare a proposed revision, see 1970 House Doc. No. 6192; 1972 House Doc. No. 5009 (initial draft report), discussed the importance of this issue in its 1973 report to the House of Representatives. In that report, the DCA sought to curb "the widespread abuse of the variance granting power," see also 1972 House Doc. No. 5009, at 65, through "recommendations (which) reflect a common concern and a common approach," and specifically cited the recommended "provisions for lapse of variances" as an example of that approach. 1973 House Doc. No. 6200, at 9. In a chapter entitled "Limitations on Variance Granting Power," the DCA report "concluded that there should be a time limit in which a (holder) can take advantage of a granted variance ... in order to eliminate to some degree the current confusion regarding status of land within municipalities," and stressed that it was "giving priority" to a change in G.L. c. 40A "to specify conditions under which a variance may lapse." Id. at 20. Based on this view, the report recommended legislation to amend the former § 15 (which stated the requirements for the grant of a variance) to provide that "(i)f a use to which a variance is granted is not established on the premises within three years of such granting, the authorization for such variance shall lapse and become void, and may be reestablished only after another public hearing and notice in accordance with ... (the former § 17)," which stated the procedure therefor. Id. at 45.

The DCA report and recommended legislation were referred to the House Committee on Urban Affairs. See 1972 House Doc. No. 6001; 1973 House Doc. Nos. 6035, 7072. That committee ultimately recommended a bill which included a lapse provision virtually identical to that proposed by the DCA, as quoted above, except that the period triggering a lapse was reduced from three years to one year. See 1974 House Doc. No. 2522, at 23 (third interim report). A subsequent version of the bill deleted the words "and become void" from the prior phrase "shall lapse and become void." 1974 House Doc. No. 5864, at 16. ⁹ That bill also proposed that a lapsed variance be reestablished "only after notice and hearing pursuant to (§§ 7 and 12)" of the proposed legislation. Ibid. Read in light of the specified sections, which...