O'Kane v. Board of Appeals of Hingham
Decision Date | 03 June 1985 |
Citation | 478 N.E.2d 962,20 Mass.App.Ct. 162 |
Parties | Ida C. O'KANE v. BOARD OF APPEALS OF HINGHAM. |
Court | Appeals Court of Massachusetts |
Chester A. Janiak, Boston, for defendant.
Douglas A. Randall, Quincy, for plaintiff.
Before GREANEY, C.J., and KAPLAN and BROWN, JJ.
The notoriously confused text of G.L. c. 40A, § 15, fifth par., as appearing in St. 1975, c. 808, § 3 ( ) presents yet another difficulty, and we seek to find the more satisfactory solution.
On July 6, 1983, the plaintiff Ida C. O'Kane filed her application for a variance in the office of Hingham's town clerk. The defendant board of appeals conducted a public hearing on the application on August 16, 1983, forty-one days after the application, and on the same day the board voted (orally) to deny it. The written decision of the board, assigning reasons, was filed in the town clerk's office on September 20, 1983, thirty-five days after the oral decision and seventy-six days after the application. O'Kane took her "appeal" to the Superior Court under G.L. c. 40A, § 17, on October 5, 1983, within the twenty days allowed. Upon stipulated facts, in substance as just narrated, a judge of the Superior Court ruled, agreeing with the plaintiff, that the variance must be held to have been "constructively" granted because of the failure of the board to file its written decision in the town clerk's office within fourteen days following its action in rendering the oral decision. The board appeals to this court. We reverse.
The judge argued, plausibly, that the fourteen-day provision was "mandatory," but the later opinion in Zuckerman v. Zoning Bd. of Appeals of Greenfield, 394 Mass. 663, 665-667, 477 N.E.2d 132 (1985), establishes the contrary: the provision is "directory." Hence, in Zuckerman, where the appropriate writing was filed more than fourteen days following decision, but within the seventy-five days after application, 2 a "constructive" grant of the application was averted and an appeal of the decision to the Superior Court, had it been timely taken, could reach the substance. 3
The present case is a variant on Zuckerman. Here the writing was filed more than fourteen days after the decision, and seventy-six days after the application. And so we have the question, posed but not answered in Zuckerman, whether filing must at all events occur within the seventy-five days, or may be effectively made within a fourteen-day interval following the expiration of the seventy-five days. As indicated in Zuckerman, at 665, 477 N.E.2d 132, these appear to be the only commonsensical alternatives; and we think the latter position accommodates better to the text and scheme of § 15, such as they are. In the second sentence, the "[f]ailure by the board to act within said seventy-five days" refers to "the decision of the board" mentioned in the preceding sentence; and the "within fourteen days" of the third sentence, being directory, allows not less than that period after the decision is made for memorializing and filing it. Suppose a decision on the seventy-fifth day; it would be hard to deny that the board had a further fourteen days in which to file it. 4 That terminus, we think, should apply even where the decision was made at an earlier point in the period of seventy-five days.
In Zuckerman, at 666 n. 2, 477 N.E.2d 132, the court said, "We express no view on the situation where the board makes its decision within seventy-five days, but files its decision within fourteen days after the seventy-five day period has elapsed." The court then, after the sign "Cf.," cites two special-permit cases 5 where the statute, G.L. c. 40A, § 9, as appearing in St. 1975, c. 808, § 3, states that "[f]ailure ... to take final action upon an application for a special permit within ... ninety days following the date of public hearing shall be deemed to be a grant of the permit applied for." Of these cited cases the court goes on to say, "where statute requires final action within ninety days, decision must be made and filed within that period of time" (emphasis in original). 6 Section 15 stands in contrast to § 9. It does not speak of final action within the seventy-five days but of the board acting (i.e., deciding) within that period, and then having a further period for filing.
Judgment reversed.
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