Milton Commons Associates v. Board of Appeals of Milton

• Decision Date: 30 June 1982
• Citation: 14 Mass.App.Ct. 111,436 N.E.2d 1236
• Parties: MILTON COMMONS ASSOCIATES 1 v. BOARD OF APPEALS OF MILTON. Nor. 81-864
• Court: Appeals Court of Massachusetts

Page 1236

436 N.E.2d 1236

14 Mass.App.Ct. 111

MILTON COMMONS ASSOCIATES ¹ v. BOARD OF APPEALS OF MILTON Nor. 81-864

Appeals Court of Massachusetts, Norfolk.

Argued May 12, 1982.

Decided June 30, 1982.

Robert E. McLaughlin, Boston (Michael Eby, Boston, with him), for plaintiff.

Robert D. O'Leary, Town Counsel, Milton, for defendant.

Before DREBEN, ROSE and KASS, JJ.

KASS, Justice.

Milton Commons Associates (MCA) applied to the Board of Appeals of Milton for a comprehensive permit under G.L. c. 40B, §§ 20 through 23 (popularly known as the anti-snob zoning act), to build low and moderate income housing. Public hearings on MCA's proposal began on July 9, 1980, and continued over twelve separate sessions through December 15, 1980. The preceding sentence assumes the answer to one of the questions raised by the parties: when did the hearing end for purposes of calculating whether a permit was deemed to have issued by reason of the board's failure to act within the time limits prescribed by G.L. c. 40B, § 21? A second question is: what event began the twenty-day period during which persons aggrieved by the issuance of a constructive permit (because of the board's inaction) might file a complaint seeking judicial review?

1. When did the hearing end? Upon the opening of the twelfth session of hearings on December 15, 1980, the chairman of the board made an announcement:

At the outset, with the hope and expectation that we are going to finish tonight, I am going to schedule a deliberative session of the Board for January 21, 1981, here at the school hall at 7:30. This is a somewhat unusual session for the Board because under a recently decided Massachusetts decision, the Board of Appeals is obliged to conduct its deliberations in public. So, Messrs. Connelly, Gans, and I will be discussing at that time all the evidence that has come before us, and we are obliged to come to a decision at this session, and we are obliged to have a vote recorded. Unfortunately none of you can get in on the act, and if you want to come and listen to us argue among ourselves, you are welcome. The law requires us to have this session and we will have it.

At the end of that evening the chairman said: "I take it, ladies and gentlemen, that this concludes the evidential part of our hearing subject to the letter that we are going to get from Mr. York (counsel for MCA) and remains only now for the deliberative public session." If this marked the end of the public hearing on MCA's application, it marked the beginning of a period during which the board had to issue a decision. General Laws, c. 40B, § 21, inserted by St.1969, c. 774, § 1, provides: "The board of appeals shall render a decision, based upon a majority vote of said board, within forty days after the termination of the public hearing .... If ... a decision is not rendered within the time allowed, unless the time has been extended by mutual agreement between the board and the applicant, the application shall be deemed to have been allowed and the comprehensive permit ... shall forthwith issue." It is apparent from the record that at least the chairman and another member of the board thought that the forty-day period did not begin to run until the end of the deliberative session. It is also apparent from the record that counsel for MCA adroitly resisted an invitation from a member of the board to extend the hearing and, thus, the time for decision.

When he opened the meeting of January 21, 1981, the chairman of the board said: "We are having somewhat of an unusual session both for you (referring to the public) and for us. Under the statute, we are required to deliberate in public. So, it has come to the state where now we can no longer accept your views and opinions, but we must debate the matter among ourselves." This was a reference to Yaro v. Board of Appeals of Newburyport, --- Mass.App. ---, --- - ---, Mass.App.Ct.Adv.Sh. (1980) 1839, 1840-1844, 410 N.E.2d 725, in which we said that G.L. c. 39, § 23B (the open meeting law), required a board of appeal to deliberate and decide at a meeting open to the public, although, once a decision was arrived at and announced, its reduction to writing did not need to occur in public view. Yaro, --- Mass. at --- - ---, at 1842-1843, 410 N.E.2d 725, distinguished public hearings required to be held "in the first instance" from the deliberative meeting, at which there would be no participation by the public while the board reached a decision. That distinction the board overlooked in the instant case. The same distinction was made in Building Inspector of Attleboro v. Attleboro Landfill, Inc., --- Mass. ---, --- - ---, Mass.Adv.Sh. (1981) 1653, 1654-1655, 423 N.E.2d 1009, in which the court, considering a similar limitation period running from the date of public hearing, counted from the hearing day, not from the day two months later when the planning board met to decide.

What the elements of a hearing are will vary with the nature of the proceeding. "The term 'hearing' like 'jurisdiction' is 'a verbal coat of too many colors.' " Friendly, Some Kind of Hearing, 123 U.Pa.L.Rev. 1267, 1270 (1975), quoting Justice Frankfurter in United States v. L. A. Tucker Truck Lines, Inc., 344 U.S. 33, 39, 73 S.Ct. 67, 70, 97 L.Ed. 54 (1952) (Frankfurter, J., dissenting). Davis defines a hearing as "any oral proceeding before a tribunal." 1 Davis, Administrative Law Treatise § 7.01, at 407 (1958). Judge Friendly observes that as broad as that definition is, it may not be broad enough, for it fails to take into account written submissions. Friendly, supra at 1270. At the least, however, a hearing must afford the person entitled to it "the right to support his allegations by argument however brief, and, if need be, by proof, however informal." Londoner v. Denver, 210 U.S. 373, 386, 28 S.Ct. 708, 714, 52 L.Ed. 1103 (1908). Many of the cases which consider the elements of a hearing come up in the context of disputes over personal rights such as termination of employment or termination of welfare benefits. Those cases have emphasized trial type public hearings which include an opportunity to confront and cross-examine adverse witnesses, as well as the right to make an affirmative case through the presentation of evidence and oral argument. See Lowry v. Commissioner of Agriculture, 302 Mass. 111, 117, 18 N.E.2d 548 (1939); Goldberg v. Kelly, 397 U.S. 254, 267-268, 90 S.Ct. 1011, 1020-1021, 25 L.Ed.2d 287 (1970); Endicott v. Huddleston, 34 Ill.App.3d 799, 803, 340 N.E.2d 662 (1975). Compare Joint Anit-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 171-172, 71 S.Ct. 624, 648-649, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring). Less is probably required in zoning proceedings, where cross-examination of adverse witnesses, while not proscribed, is not required. But at the least a public hearing in the zoning context "connotes the opportunity for interested persons to appear and express their views pro and con." Willey v. Town Council of Barrington, 106 R.I. 544, 551, 261 A.2d 627 (1970).

That minimal characteristic of a public hearing was absent from the deliberative session of January 21, 1981, at which MCA and interested parties were expressly instructed to keep their lips sealed while the board pondered. Public hearings end when the right of interested parties to present information and argue is cut off. We are of opinion that the board took such a step on December 15, 1980. Requests by members of the board to MCA for specific items of information (what the intentions of MCA were as to night staffing, what floors would be equipped with sprinklers, the quantity of fill to be brought in and off the site) did not extend the hearing; it involved only uncontested facts and presented no opportunity for either party to persuade or contradict. Nor does the record make it appear that MCA agreed in all events to answer the questions put or that it did ever answer them. If asking a question during the course of a hearing in and of itself kept open a hearing which was otherwise concluded, it would be a simple matter to keep hearings open indefinitely and to frustrate the streamlined procedure which the anti-snob zoning act sought to introduce. See part 2 of this opinion. As it was, stretching hearings over six months was something less than a fast track process.

2. The time in which judicial review of a constructive permit must be sought. MCA's complaint had asked for a declaration under G.L. c. 231A that it had secured a constructive comprehensive permit and an order that the board issue a comprehensive permit. In framing a judgment favorable to MCA, the judge added: "All judicial appeals in accordance with G.L. c. 40B, § 21, and G.L. c. 40A, § 17, shall be filed no later than twenty days after the date of filing notice of the Board's granting the comprehensive permit." From that portion of the judgment MCA has appealed, raising in still another context the question of what triggers the commencement of the limitations period for claiming judicial review of a permit or approval deemed to have been issued by the failure of a board of appeal or planning board to act within the prescribed time. See Selectmen of Pembroke v. R. & P. Realty Corp., 348 Mass. 120, 124-127, 202 N.E.2d 409 (1964); Building Inspector of Attleboro v. Attleboro Landfill, Inc., --- Mass. at --- - ---, Mass.Adv.Sh. (1981) at 1655-1658, 423 N.E.2d 1009; Noe v. Board of Appeals of Hingham, 13 Mass.App. 103, 430 N.E.2d 853 (1982).

Section 21 of c. 40 B, as we have seen, provides that if a decision is not rendered within forty days after the end of the public hearing phase, "the application shall be deemed to have been allowed and the comprehensive permit or approval shall forthwith issue. Any person aggrieved by the issuance of a comprehensive permit or approval may appeal to the court as provided in section seventeen of chapter forty A." (Emphasis supplied.) It is the position of MCA...