Noe v. Board of Appeals of Hingham

Decision Date27 January 1982
Citation13 Mass.App.Ct. 103,430 N.E.2d 853
PartiesJoseph R. NOE, trustee, v. BOARD OF APPEALS OF HINGHAM et al. 1
CourtAppeals Court of Massachusetts

Robert J. Baum, Boston, for plaintiff.

David H. Drohan, Hingham, for William H. Wilson, Jr., & another.

Chester A. Janiak, Boston, for Board of Appeals of Hingham.

Before GRANT, GREANEY and DREBEN, JJ.

GRANT, Justice.

The question for decision in this case is whether a "person aggrieved" within the meaning of G.L. c. 40A, § 17, as amended by St.1978, c. 478, § 32, 2 is entitled to judicial review of a decision of a board of appeals by which it expressly grants a petition for a variance if that person files a complaint for such review within twenty days of the date when the board files a copy of its decision with the city or town clerk but more than twenty days after the date when the board has constructively granted the petition by reason of its failure to act thereon within the seventy-five-day period set out in the concluding paragraph of G.L. c. 40A, § 15. 3 We hold that the plaintiff in this particular case is entitled to judicial review.

The jurisdictional facts are not in dispute. On February 27, 1980, the owners of the locus filed with the town clerk of Hingham (see c. 40A, § 15, second para.) a petition for a minuscular variance from the applicable side-yard requirement of the town's zoning by-law in order to accommodate an industrial building which had recently been constructed. See c. 40A, §§ 10 and 14(3). For some reason which does not appear in the record but which is immaterial for present purposes, the town clerk failed to transmit a copy of the petition to the board of appeals (see c. 40A, § 15, second para.) until the latter part of April. The board held a public hearing on the petition on May 15 but took no action at that time. On July 24 the plaintiff, who is an abutter of the locus, brought a complaint in the Superior Court against the board and the owners of the locus in which he prayed for an order requiring the board to render and file a decision, for a determination of the invalidity of any variance that might have been constructively granted under c. 40A, § 15, and for injunctive relief with respect to a supposed violation of the side-yard requirement of the zoning by-law. 4 At some point during the last week in July the board rendered a written decision in which it expressly granted the requested variance. A copy of that decision was filed with the town clerk on August 5. On the following day the town clerk, apparently acting in behalf of the clerk of the board, mailed the written notices of the decision which are required by c. 40A, § 15.

On August 21, pursuant to leave first obtained, the plaintiff filed an amended complaint in the Superior Court in which he sought to annul the written decision of the board (a certified copy of which was attached) and again sought injunctive relief with respect to a supposed violation of the by-law. The owners and the board appeared and answered the amended complaint. The owners (but not the board) filed a motion to dismiss the action as "untimely." 5 That motion was allowed, and the plaintiff appealed from the ensuing judgment. 6

We deal first with the owners' contention that the action was properly dismissed because the plaintiff failed to file a complaint for judicial review within twenty days 7 following the date (May 12, 1980 8) when the board constructively granted their petition under the concluding paragraph of c. 40A, § 15 (note 3, supra). At the time this case was before the Superior Court neither of our appellate courts had had occasion to determine the meaning or effect of the second and third sentences of that paragraph. In Casasanta v. Zoning Bd. of Appeals of Milford, 377 Mass. 67, 384 N.E.2d 1218 (1979), the Supreme Judicial Court had noted the apparent distinction between the language of those sentences and that of c. 40A, § 18, as in effect prior to St.1975, c. 808, § 3 (377 Mass. at 69-70, 384 N.E.2d 1218) but had found it unnecessary to construe the new language in the case then before it. Not long after the decision in the Casasanta case this court, in Brown v. Board of Appeals of Manchester, 8 Mass.App. 929, Mass.App.Adv.Sh. (1979) 2311, 396 N.E.2d 1014, reversed a judgment of the Superior Court which had dismissed an appeal to that court on the ground that it had not been filed within twenty days of what the judge concluded was a constructive grant of a variance under the new § 15; however, we did so on the grounds that the new section had not yet taken effect and that the appeal was governed by the provisions of c. 40A, § 21, as in effect prior to St.1975, c. 808, § 3. There was no occasion to construe the language of § 15. The language of that section had again been noted but left for another day in Fitchburg Housing Authy. v. Board of Zoning Appeals of Fitchburg, --- Mass. ---, --- n.4, Mass.Adv.Sh. (1980) 1465, 1467 n.4, 406 N.E.2d 1006.

Following the entry of the judgment in the present case the Supreme Judicial Court, in a case which had come to a board of appeals by way of an appeal under c. 40A, §§ 8, 14(1) and 15 (first para.), held that "(t)he language of (the second and third sentences of the concluding paragraph of) c. 40A, § 15, obligates a board of appeals to act on an appeal within the statutory time period, otherwise the appellant prevails by default." Rinaudo v. Zoning Bd. of Appeals of Plymouth, --- Mass. ---, ---, Mass.Adv.Sh. (1981) 1244, 1244, 421 N.E.2d 439. More recently, in Building Inspector of Attleboro v. Attleboro Landfill, Inc., --- Mass. ---, Mass.Adv.Sh. (1981) 1653, 423 N.E.2d 1009, it was held that the failure of a planning board which was acting as a special permit granting authority (see c. 40A, § 1A, inserted by St.1977, c. 829, § 3A; c. 40A, § 9, first para.) to file a copy of its written decision on an application for a special permit with the city clerk within the ninety-day period set out in the seventh paragraph of § 9 (as amended by St.1977, c. 829, § 3F) resulted in a constructive grant of the application for the permit. 9 In reaching that conclusion the court expressly relied on the portions of the Casasanta and Rinaudo cases already referred to as support for the proposition that "(i)t is ... mandatory that the board act within the statutory period, otherwise the applicant prevails by default." --- Mass. at --- - ---, Mass.Adv.Sh. (1981) at 1654-1655, 423 N.E.2d 1009. We conclude, therefore, that as between the owners and the board of appeals in the present case, the latter must be taken to have constructively granted the petition for a variance as early as May 13, 1980.

It does not follow from the foregoing, as the owners argue and the judge apparently believed, that one in the position of the present plaintiff is precluded from securing judicial review of a constructive grant of a petition for a variance or of a subsequently filed written decision which expressly grants a variance merely because he fails to run off to an appropriate court house within twenty days of the date of the constructive grant. It must be recognized that the Casasanta, Rinaudo and Attleboro cases were all concerned with the rights and duties of a landowner in relation to the municipal authorities and that none of those cases was concerned with the rights of someone else (such as the present plaintiff) who might be aggrieved by the constructive grant of a variance or a special permit. It must also be recognized that in the Attleboro case the court gave the need for certainty as to when the appeal period would start running under § 17 as one of its reasons for construing the words "final action" in § 9 (note 9, supra) to include the filing of a board's decision with a city or town clerk. Indeed, the court specifically said that "unless the board's decision is filed with the clerk, there would be no commencement of the statutory time within which appeals may be taken." --- Mass. at --- - ---, Mass.Adv.Sh. (1981) at 1655-1656, 423 N.E.2d 1009.

It is with that insight that we turn to the express language of the appeal provisions found in the present c. 40A, §§ 15 and 17. When we do so, we find in the very sentence of § 15 which provides for the constructive grant of a variance that such a grant is "subject to an applicable judicial appeal as provided for in this chapter" (note 3, supra); we also find in the ultimate sentence of that section that the notice which is to be given to the petitioner (among others) of the decision which is to be filed with the city or town clerk "shall specify that appeals ... shall be made pursuant to section seventeen and shall be filed within twenty days after the date of filing of such notice (sic) in the office of (the) city or town clerk." In the first paragraph of § 17, both in its original form and as now in effect, we find the sole grant of jurisdiction to any court to entertain an appeal from and to review a decision of a board of appeals or a special permit granting authority. That paragraph is explicit that an appeal by a "person aggrieved" is to be taken by "bringing an action within twenty days after the decision has been filed in the office of the city or town clerk" and that "(t)here shall be attached to the complaint a copy of the decision appealed from, bearing the date of filing thereof, certified by the city or town clerk with whom the decision was filed" (note 7, supra). Unlike the cognate provisions of the Subdivision Control Law, § 17 contains no provision authorizing or requiring the taking of an appeal within twenty days of a constructive approval. See and contrast G.L. c. 41, §§ 81U, 81V and 81BB, as now in effect. 10

In the case before us the plaintiff's original complaint sought to attack the constructive grant of the petition for a variance which arose out of the board's failure to take any action on the petition within the...

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