Blog Archive

Friday, January 11, 2013

THERE IS NO CONSTRUCTIVE APPROVAL FOR FAILURE OF A BOARD OF APPEALS TO HOLD A PUBLIC HEARING WITHIN 65 DAYS.


Can you imagine anything more entertaining than a case where two municipalities are adversaries in a zoning matter pertaining to a cease and desist order regarding a rifle range? It was a shame that somebody had to lose. See Town of Lancaster ex rel. its Bldg. Com'r v. Town of Clinton, 10 MISC 423804 KFS, 2012 WL 5868786 (Mass. Land Ct. Nov. 20, 2012) for the details, but here is a synopsis:

Apparently the Town of Clinton owns a rifle range located in the Town of Lancaster. Lancaster’s Zoning Commissioner issued a cease and desist order to Clinton for violating the Zoning By-law that prohibits the discharge of a firearm in a residential district. Clinton appealed the order to the Lancaster Zoning Board. MGL Chapter 40A, Sec 15 says “The board of appeals shall hold a hearing on any appeal, application or petition within sixty-five days from the receipt of notice by the board of such appeal, application or petition.” Mass. Gen. Laws Ann. ch. 40A, § 15 (West).

The parties corresponded did not reach an agreement extending the time for the hearing. A hearing was eventually held,  but 98 days after the appeal had been filed. “After the notice of the February 4, 2010 hearing was published, Clinton's counsel sent another letter dated January 25, 2010, to the Board. This letter stated that due to the Board's failure to hold a timely appeal hearing, any action taken in connection with the hearing to be held on February 4th would be ‘of no force and effect’ and therefore Clinton would not attend the hearing.”

Section 15 further states that “The decision of the board shall be made within one hundred days after the date of the filing of an appeal, application or petition, except in regard to special permits, as provided for in section nine.” Mass. Gen. Laws Ann. ch. 40A, § 15 (West)

“Clinton alleges that summary judgment should be granted in its favor because the Board's failure to hold a hearing on its appeal of the Order within sixty-five days of the Board's receipt of Clinton's notice of appeal, as directed by Section 15, mandates a constructive grant of its appeal. Clinton argues that an applicant is entitled to a constructive grant for either a board's failure to comply with the statutory directive to hold a hearing within sixty-five days or the directive for a board to ‘act’ within one hundred days. It argues that both deadlines are mandatory. Otherwise, it asserts, the sixty-five day requirement would be ‘inoperative and superfluous,’ a result to be avoided under the rules of statutory construction.”

Chief Justice Scheier found that constructive approval under Section 15 is only available where a Board failed to act within 100 days. The statute says “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, application or petition. “  The statute does not specifically say that constructive approval will occur if the hearing is not held within 65 days.  

Having lost that argument, because Clinton did not bring an action in court within twenty days of the final decision of the Board, it failed to exhaust its administrative remedies and the decision of the Zoning Board denying Lancaster’s appeal became final.  Why can’t we just all get along?

PAUL F. ALPHEN, ESQUIRE

BALAS, ALPHEN & SANTOS, P.C.


 

No comments:

Post a Comment