JOSEPH R. NOE, trustee, vs. BOARD OF APPEALS OF HINGHAM & others. [Note 1]

GRANT, J. The question for decision in this case is whether a "person aggrieved" within the meaning of G. L. c. 40A, Section 17, as amended by St. 1978, c. 478, Section 32, [Note 2] is entitled

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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, Section 15. [Note 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, Section 15, second par.) 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, Sections 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, Section 15, second par.) 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

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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, Section 15, and for injunctive relief with respect to a supposed violation of the side-yard requirement of the zoning by-law. [Note 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, Section 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." [Note 5] That motion was allowed, and the plaintiff appealed from the ensuing judgment. [Note 6]

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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 [Note 7] following the date (May 12, 1980 [Note 8]) when the board constructively granted their petition under the concluding paragraph of c. 40A, Section 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 (1979), the Supreme Judicial Court had noted the apparent distinction between the language of those sentences and that of c. 40A, Section 18, as in effect prior to St. 1975, c. 808, Section 3 (377 Mass. at 69-70) 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. Ct. 929 (1979), reversed a judgment of the Superior Court which had dismissed an appeal to that court on the ground that it had

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not been filed within twenty days of what the judge concluded was a constructive grant of a variance under the new Section 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, Section 21, as in effect prior to St. 1975, c. 808, Section 3. There was no occasion to construe the language of Section 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, 380 Mass. 869, 871 n.4 (1980).

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, Sections 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, Section 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, 383 Mass. 885 (1981). More recently, in Building Inspector of Attleboro v. Attleboro Landfill, Inc., 384 Mass. 109 (1981), it was held that the failure of a planning board which was acting as a special permit granting authority (see c. 40A, Section 1A, inserted by St. 1977, c. 829, Section 3A; c. 40A, Section 9, first par.) 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 Section 9 (as amended by St. 1977, c. 829, Section 3F) resulted in a constructive grant of the application for the permit. [Note 9] In reaching that conclusion the court expressly

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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." 384 Mass. at 110. 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 courthouse 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 Section 17 as one of its reasons for construing the words "final action" in Section 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." 384 Mass. at 111-112.

It is with that insight that we turn to the express language of the appeal provisions found in the present c. 40A, Sections 15 and 17. When we do so, we find in the very sentence of Section 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

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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 Section 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, Section 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, Sections 81U, 81V and 81BB, as now in effect. [Note 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 seventy-five-day period set out in Section 15. Well within the twenty-day period following the date on which the board filed its decision with the town clerk, the plaintiff secured an amendment of his complaint

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so as to attack an express decision which (in effect) confirmed the earlier constructive grant of a variance and belatedly explained the reasons therefor. All the defendants appeared and answered the amended complaint without raising any question as to the manner or timeliness of the service of process. We conclude that in the circumstances of this particular case the Superior Court has jurisdiction to entertain the amended complaint, and we reserve for another day the questions of how and when review can be had in a case in which a board of appeals or a special permit granting authority fails to take any action on a petition or application or, if it does act, fails to file its decision with the city or town clerk. [Note 11]

The judgment is reversed, and the case is to stand for further proceedings in the Superior Court; costs of appeal are not to be awarded to any party.

So ordered.

DREBEN, J. (dissenting). General Laws c. 40A, Section 15, as appearing in St. 1975, c. 808, Section 3, provides that "[f]ailure by the board to act within . . . seventy-five days [after the date of filing] shall be deemed to be the grant of the relief, application or petition sought, subject to an applicable judicial appeal as provided for in this chapter." The provision shows an "intention that inaction . . . within the [seventy-five day] period should result in constructive approval and that a person aggrieved by that result should have a right of [judicial] appeal." Selectmen of Pembroke v. R. & P. Realty Corp., 348 Mass. 120, 126 (1964) (construing G. L. c. 41, Section 81U, as amended through St. 1958, c. 377, Section 1).

The purpose of the statute is to induce a zoning board of appeals to act promptly and, in my view, is a legislative determination that an applicant whose application is not

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acted upon by the board within the requisite period is to be placed on a par with a successful applicant. By not limiting the "applicable judicial appeal" to a definite period where the board not only fails to act but also fails timely to file its "decision" (i.e., a grant of relief through inaction) in the office of a city or town clerk, the majority, it seems to me, emasculate the statute. Unlike the landowner who obtains relief through positive action by the board, one who receives constructive approval cannot safely rely on board inaction, even though, as acknowledged by the majority, the municipality is bound. There is no time period after which he is protected from action by abutters or other parties in interest, even if such persons had notice of the application. Abutters, who have a very limited private action under the statute, see Morganelli v. Building Inspector of Canton, 7 Mass. App. Ct. 475, 481-482, & 485 n.16 (1979), are now accorded, for what may be an unlimited period of time, the ability to cloud the rights of a landowner to use his land. In addition, the majority also neglect the reasoning of the Supreme Judicial Court in Building Inspector of Attleboro v. Attleboro Landfill, Inc., 384 Mass. 109, 112-114 (1981), where the court pointed out that "[s]uch an unlimited appeal period is contrary to our appellate practice generally, . . . and to the legislative mandate in similar matters, G. L. c. 41, Section 81U." Id. at 112.

Although I acknowledge the shortcomings of G. L. c. 40A, Sections 15 and 17, which are pointed out in the majority opinion, I view them in the context of the principles recently reaffirmed in School Comm. of Greenfield v. Greenfield Educ. Assn., 385 Mass. 70 (1982), namely, "[w]here the draftmanship of a statute is faulty or lacks precision, it is our duty to give the statute a reasonable construction." Id. at 79-80. I think it plain that the Legislature intended no "gaps and uncertainties in the specification of a procedure designed to provide definitive rights to accrue . . . within stated times." Selectmen of Pembroke v. R. & P. Realty Corp., supra at 127.

In Attleboro, supra, the words "final action" of G. L. c. 40A, Section 9, were construed to require the board to file its

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decision with a city clerk within the ninety-day period for "final action" even though Section 9 makes no mention of such filing. The reason for the court's decision was that "such filing is necessary to limit the period [in] which appeals may be taken" pursuant to G. L. c. 40A, Section 17. Attleboro, supra at 111. Unlike Section 9, Section 15 specifically imposes on the board the requirement of filing its decision. I see no reason to hold that an appeal period commences under Section 9 where the filing requirement is imposed by judicial construction, but not under Section 15 where the requirement of filing is in the statute itself. Although the majority point out that Attleboro was concerned with the rights of a landowner in relation to the municipal authorities and not with the rights of third persons, I find implicit in Attleboro a requirement that where a permit granting board both fails to act and fails to file its decision, a judicial appeal by a third person must be taken under G. L. c. 40A, Section 17, within twenty days of the ninety-day period. If I am correct, there appears no basis to impose a different rule for a judicial appeal under Section 15 where the board both fails to act and also fails to file its decision within the time mandated by the statute.

I would, accordingly, hold that the period for the "applicable judicial appeal as provided for in this chapter" specified in Section 15 does not depend on when the board files its decision, see Pembroke, supra at 126; Attleboro, supra at 113, but begins to run, in cases involving constructive approval, at the time of the failure of the board to take action [Note Dissent-1] where, as here, the aggrieved person had notice of the application. This construction, in my view, accords with the legislative intent, the reasoning of the Pembroke and Attleboro cases, and is the "one which will cause the least confusion to attorneys and others concerned with the law relating to land use." Attleboro, supra at 113.