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.
