Potter v. Board of Appeals of Mansfield
| Decision Date | 07 February 1973 |
| Parties | Kelton O. POTTER, trustee, v. BOARD OF APPEALS OF MANSFIELD. |
| Court | Appeals Court of Massachusetts |
Howard J. Alperin, Boston (Edward I. Modiste, Stoughton, with him), for plaintiff.
Before HALE, C.J., and KEVILLE and GRANT, JJ.
This is an appeal by the board of appeals of the town of Mansfield (hereinafter At the time the petitioner filed the application in question the provisions of §§ II A, III DI and III B7 of the by-law were such that the board, in the exercise of its judgment, could have granted the petitioner a special permit for the construction of a multiple dwelling complex in accordance with the provisions of §§ V FI and V F2 of the by-law. Among the requirements of § V FI was one that an applicant file a properly prepared site pln which would show, among other things, the topography of his land and proposed features of the types referred to in paragraphs 1 through 7 and 10 of Appendix B to this opinion. Section V FI contained further requirements: that the board immediately forward a copy of such plan to the planning board of the town; that both boards consider, among other things, all the features referred to in paragraphs 1 through 10 of Appendix B; that the planning board should report its recommendations in writing to the board of appeals, with such report to become part of the official record of the public hearing to be held by the latter board; that the recommendations of the planning board 'shall not be binding' on the board of appeals; that the board of appeals should either approve or disapprove an application within thirty days of the public hearing: and that '(i)f the application is disapproved, the reasons for disapproval shall be listed with appropriate recommendations for correction of deficiencies.'
sometimes referred to simply as the board) from a judgment of the Superior Court that a writ of mandamus issue commanding further action by the board on the petitioner's application under the provisions of §§ III DI, III B7, V FI and V F2 of the Mansfield zoning by-law as then in effect for a special permit 1 for the construction of a multiple dwelling complex. G.L. c. 213, § 1D, as amended. The case is before us on the reported evidence (which consists of various documents and oral stipulations of counsel), the judge's order, and the writ (which was stayed pending appeal). We decide the case on our own judgment (Iverson v. Building Inspector of Dedham, 354 Mass. 688, 689, 241 N.E.2d 817).
The petitioner's application for a special permit to construct a multiple dwelling complex of sixty-nine units and some form of plan (which is not before us) were filed with the board of appeals on August 3, 1970. That board sent a copy of the plan to the planning board, which, by its written report dated September 14, 1970, recommended that the board of appeals not approve the petitioner's plan. That report stated five respects in which the planning board considered that the plan failed to supply information required by § V F of the by-law and identified eight respects in which it believed that plan should be modified or supplemented. The planning board asked that its comments be incorporated in any decision the board of appeals might make and that it be given an opportunity to review any changes which might be made in the petitioner's plan.
On September 15, 1970, the board of appeals held a public hearing on the petitioner's application which met all the procedural requirements of notice and hearing set out in G.L. c. 40A, §§ 4, 17, and 18, as then in effect. The planning board's report was incorporated into the record of the hearing, and opposition to the application was recorded. On November 3, 1970, the board of appeals rendered the decision which is set out in full in Appendix A to this opinion and under which no permit was issued. 2 A copy of that decision was The petitioner did not appeal to the Superior Court within twenty days or to a District Court within twenty-one days of November 17, 1970, as permitted by G.L. c. 40A, § 21, as amended through St.1969, c. 706. 4
filed with the town clerk on November 17, 1970. 3
On December 1, 1970, which was prior to the expiration of either of the foregoing appeal periods, the board took the action set out in Appendix B to this opinion and which, for the sake of convenience, we shall sometimes refer to as the amended decision. The ten numbered paragraphs of that decision represent a summary of the more salient objections of the planning board as set out in that board's report of September 14, 1970, to the board of appeals. The amended decision was rendered without prior compliance with any of the requirements of notice or hearing then found in G.L. c. 40A, §§ 4, 17, and 18. It does not appear that the amended decision was made part of the record of the hearing held on September 15, 1970. We do not know who was notified of the amended decision, or when (see fn. 3 this opinion), except by the filing of a copy of the decision with the town clerk on January 25, 1971.
On January 25, 1971, the petitioner filed with the board of appeals a revised plan of a multiple dwelling complex which is before us and which the petitioner claims meets all the requirements of the amended decision. At some undisclosed point in time a copy of that plan was transmitted to the planning board. At a town meeting held in February or March of 1971 the town voted to change the zoning of the petitioner's land in such fashion as no longer to permit the use of that land for a multiple dwelling complex. 5 On May 13, 1971, the planning board wrote the board of appeals advising it that the petitioner's revised plan met the technical requirements of the amended decision of the board of appeals and had been approved by the planning board, and calling the attention of the board of appeals to the fact that the revised plan called for the construction of fifty-eight dwelling units rather than the sixty-nine units originally proposed.
At some following point in time the petitioner requested the board of appeals to issue him a special permit in accordance with the amended decision. By letter to the petitioner dated August 20, 1971, the board replied that it had been advised by town counsel to the effect that its original decision of November 3, 1970, was a final and appealable decision, that it had 'lost all jurisdiction of the case' when it filed its original decision on November 17, 1970, and that the 'purported amendment' of December 1, 1970, was of 'no legal force or effect.' The board suggested to the petitioner that he file a new application.
Instead, the petitioner filed the present petition for a writ of mandamus on November 19, 1971. The writ commanded the board 'to determine if the revised plan of We are of opinion that the board's original decision of November 3, 1970, must be construed as a final decision denying the petitioner's application for a special permit, that the petitioner can derive no assistance from the amended decision of December 1, 1970, and that the petitioner is barred from seeking relief by mandamus because of his failure to pursue the exclusive remedy of judicial review accorded him by the provisions of G.L. c. 40A, § 21, as amended.
the petitioner contains the additional information required by the (b) oard's amended decision of December 1, 1970, . . . and . . . on the basis of such a determination, to issue a certificate either granting or denying the requested permit.' 6
1. The public hearing was held and concluded on September 15, 1970, at which time the board took the case under advisement. There is nothing in the original decision (Appendix A) to suggest that the board intended to hold a further public hearing or to keep the proceedings open in any other manner in order to give the petitioner an opportunity to submit a plan which might or might not meet with the approval of the planning board. The board twice referred to its action as a 'decision' and on three occasions employed a variation of the word 'vote' in characterizing the action which it said it took. The filing of the decision with the town clerk was inconsistent with a notion that the decision was to have anything other than present effect as written.
We construe the original decision as a present and unqualified denial of the petitioner's application for a special permit. The board's feeling that 'in order to preserve the purpose and intent of the (by-law), the recommendations of the (p)lanning (b)oard should be met' was intended both as an expression of the board's agreement with the recommendations of the planning board and as the statement of the board's 'reasons' required by G.L. c. 40A, § 18 () for reaching the conclusion that '(r)elief may not be granted without substantial detriment to the public good' which was implemented by the tandem authorization and vote 'to not grant' a permit. 7 Placed as they are in this context, the words 'voted to disapprove the application until revised plans are submitted to the (p)lanning (b)oard and (p)lanning (b)oard recommendations and approval are obtained' are of significance only to the extent that they reflect an effort by the board to comply with the requirement of § V FI of the by-law that '(i)f the application is disapproved, the reasons for disapproval shall be listed with appropriate recommendations for correction of deficiencies.'
To say, as the petitioner almost suggests, that the language just quoted should be read as an expression of present intention to issue a permit subject to a limitation that the planning board approve a revised plan in the future, and without further consideration by the board of appeals, would lead us to either of two improper conclusions: namely, that the board of appeals intended an...
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