Posted by: Patricia Salkin | December 17, 2012

MA Land Court Holds that Board’s Failure to Hold Hearing Within Statutory Timeframe Did Not Constitute Constructive Approval As Town Had Additional Time Within Which to Definitively Act

The Town of Lancaster (Lancaster) initiated the current action seeking to enforce a cease and desist order (Order) against the Town of Clinton (Clinton) relating to the use and operation of a rifle range on property owned by Clinton but located in Lancaster. Clinton appealed the order to the Lancaster Zoning Commission, but when no hearing was scheduled within sixty-five days of the notice of appeal, Clinton filed for summary judgment claiming that the appeal was constructively granted. The court found no constructive grant of the appeal and that Clinton is estopped from challenging the validity of the Order for failing to appeal the Zoning Commission’s final decision on the matter.

The property in question is located in a residential zone in Lancaster. Clinton leased the property to Clinton Fish and Game Protective Association (CFGPA) with Clinton retaining the right to use it for police training and qualification, including firearm shooting. However, Lancaster issued a cease and desist order to CFGPA because the discharge of firearms is prohibited in a residentially zoned area without a permit. CFGPA appealed to the Lancaster zoning board, but after the order was affirmed CFGPA filed an appeal with the Land Court. Clinton, as owner of the property, intervened. Soon thereafter, all parties agreed to voluntarily dismiss this action. However, about a year later, Lancaster issued the Order to Clinton.

The same day the Order was issued Clinton filed its notice of appeal. According to Mass. Gen. Laws Ann., Lancaster had sixty-five days to schedule a hearing from receipt of the notice, but it did not schedule one until ninety-eight days after receipt. When sixty-five days had elapsed, Clinton’s counsel notified the Board that the statutory period for scheduling a hearing had elapsed and that the appeal had therefore been constructively granted. Another letter mailed shortly thereafter indicated that Clinton would not attend the scheduled hearing because any decision would have “no force or effect.” The Board still held the meeting and in Clinton’s absence voted to deny the appeal of the Order, and this decision was then entered with the Town Clerk.

The Land Court was prescribed the duty of interpreting Mass. Gen. Law section 15 which states, in pertinent part:

… The decision of the board shall be made within one hundred days after the date of the filing of an appeal…. The required time limits for a public hearing and said action, may be extended by written agreement between the applicant and the board of appeals…. Failure by the board to act within said one hundred days or extended time, if applicable, shall be deemed to be the grant of the appeal …. (emphasis in original.)

Clinton argued that this section is interpreted to mean that the sixty-five and one-hundred day deadlines are mandatory and the inability to comply with either mandates a constructive grant of its appeal. On the other hand, Lancaster argued that the sixty-five day time period is directory, not mandatory, and that a constructive grant is only issued when a final decision is not made within one-hundred days. The court found Lancaster’s arguments to be more persuasive and held in its favor.

In support of its decision, the court quoted Zuckerman v. Zoning Bd. Of Appeals of Greenfield, 394 Mass. 663, 667 (1985), which stated, “As to a statute imperative in phrase, it has often been held that where it relates only to the time of performance of a duty by a public officer and does not go to the essence of the thing to be done, it is only a regulation for the orderly and convenient conduct of public business and not a condition precedent to the validity of the act done.”

The Land Court has previously held that, in the context of an appeal from a denial of a special permit application, the “essence of the thing to be done … was the arrival at a final decision on the applicant’s request for relief. Accordingly, because Lancaster issued its final decision within the statutory time period, it’s failure to hold the hearing within sixty-five days did not automatically constitute the constructive grant. The court noted that it was the legislature’s intent to not issue the constructive grant unless all deadlines along the administrative route had not been met. Therefore, the remedy of a constructive grant is explicitly available when the municipality fails to act within 100 days, but this remedy is not available for the sixty-five day period.

Gen. Law. C. section 17 provides that a “person aggrieved by a decision of the board of appeals must bring[ ] an action within twenty days after the decision has been filed in the office of the city or town clerk.” To its detriment, Clinton relied on its belief that the appeal was constructive granted and failed to appeal the final decision within those twenty days. Therefore Clinton was not permitted to have the court review the merits of the Board’s decision or the validity of the Order which would, in effect, be the equivalent of an appeal.

Town of Lancaster v. Town Clinton, 2012 WL 5868786 (Mass. Land Ct. 11/20/2012).


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