DONALD R. GAMACHE & another [Note 1] vs. TOWN OF ACUSHNET & another [Note 2] (and a companion case [Note 3]).

KASS, J. In two consolidated actions the plaintiffs, Donald R. Gamache and Jacqueline Gamache, who have been denied the use of their 6.19 acre lot as a mobile home park, have raised issues about: (1) the composition of the board of appeals of Acushnet, i.e., whether three members of the board could have rendered a decision; (2) insufficient notice of a rehearing; (3) inadequate findings in support of the board's denial of a variance; (4) the invalidity, on constitutional and statutory grounds, of so much of the by-law as prohibits mobile home parks in Acushnet; and (5) the correctness of the trial judge's findings as to whether the plaintiffs had acquired a nonconforming use.

The event which triggered this barrage of claims on appeal occurred in April, 1973. This was the effective date of an amendment to the Acushnet zoning by-law which prohibited mobile home parks, for which purpose the Gamaches had acquired the locus in 1971. [Note 4] There is no dispute that

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when the town amended the zoning by-law there were at least two mobile homes on the Gamache lot, with individual wells and septic systems, and each mobile home was individually taxed. Whether there was a third trailer on site in April, 1973, is disputed. The Gamaches had not, when the zoning law changed, filed a subdivision plan depicting mobile home lots nor had they secured a mobile home park license under G. L. c. 140, Section 32F.

1. Could three members of the board have rendered a decision?

In 1977, the Gamaches applied for a variance to place seventeen additional mobile homes on their site. [Note 5] Perhaps recognizing the difficulty of obtaining a lawful variance, [Note 6]

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the Gamaches also asked the board to find that they had made a nonconforming use of their land as a mobile home park and were, therefore, not affected by the amended zoning by-law. They further asked the board to declare that the by-law proscription against mobile homes was beyond the town's zoning power and unconstitutional.

Acushnet has a board of appeals of five members. [Note 7] Only four members were present at the meeting of July 28, 1977, when the Gamache petition came up for public hearing. After that hearing, and before the board acted on the petition, a member of the board resigned. That left three who had heard the case. Cognizant that a five-member board needed the concurring vote of four members to effect action, the board decided that the Gamache matter would have to be reheard before a full panel. That hearing occurred on September 26, 1977, over the vigorous objection of the Gamaches, one of whom, however, was present and represented by counsel. Before the rehearing convened, counsel for the Gamaches had lodged a complaint under G. L. c. 231A, seeking a declaration that the three members who first heard the case should decide it, as well as a declaration that the prohibition of mobile home parks was

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beyond the authority of the town. The board proceeded with the second hearing and denied relief to the Gamaches.

The judge who heard the Gamaches' appeal correctly decided that the three remaining members of the board who had heard the testimony could not act on the Gamache petition. In the plaintiffs' view, the resignation of one member of the five-member board worked a metamorphosis of the board into one of not more than four members, three of whom could vote on a matter. There is simply no foundation in the governing statute, G. L. c. 40A, Section 19, inserted by St. 1955, c. 349, for this proposition. The statute is quite express that five-member boards can effect action only by a vote of four members and boards of four members or less must act unanimously. Moreover, the town, by Section 5.2 of its protective by-law, had established a board of appeals of five members, and a temporary vacancy did not alter the by-law. It continued to be a board of five members and a decision by the board required the concurring vote of at least four members. Accordingly, the board acted properly in reserving action until at least four members could rehear the case.

2. Sufficiency of notice of the second hearing. The plaintiffs argue -- but do not seriously press -- that they did not receive reasonable notice of the second hearing, conformably with G. L. c. 40A, Section 17, as amended through St. 1973, c. 296, Section 2. It is enough to say that they learned of the hearing because of a published newspaper notice; one of them appeared at the hearing with counsel; and counsel at the hearing represented that he had managed to file an action with the Superior Court protesting the rehearing before it began. There was a defect in notice, but it caused no prejudice. See Clancy v. Wallace, 288 Mass. 557, 564 (1934); Pitman v. Medford, 312 Mass. 618, 623 (1942). The plaintiffs found time to prepare for the hearing. See Kasper v. Board of Appeals of Watertown, 3 Mass. App. Ct. 251, 257-258 (1975); Ranney v. Board of Appeals of Nantucket, 11 Mass. App. Ct. 112, 114-115 (1981), further appellate review denied sub nom. Ranney v. Waine, 383 Mass. 890

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(1981). Compare Rousseau v. Building Inspector of Framingham, 349 Mass. 31, 37 (1965).

3. Adequacy of the board's findings. While the requirements for findings which support the grant of a variance or special permit are rigorous, [Note 8] less is necessary when relief is refused. Cefalo v. Board of Appeal of Boston, 332 Mass. 178, 181 (1955). Ferrante v. Board of Appeals of Northampton, 345 Mass. 158, 162 (1962). In the instant case the board based its decision on the policy against trailer parks expressed in Section 3.4 of the town by-law. To be sure, this is the provision which the Gamaches wanted the board to vary, but the board's stated reason may be taken as an expression that it considered a variance from Section 3.4 to derogate from the intent and purpose of the zoning by-law. See G. L. c. 40A, Section 15, as amended through St. 1958, c. 381. See Planning Bd. of Framingham v. Gargiulo, 11 Mass. App. Ct. 958 (1981). That was sufficient explanation for denial of a variance, especially on a record which falls well short of establishing facts which would have authorized the board to grant a variance. See Ferrante v. Board of Appeals of Northampton, 345 Mass. at 162. See also Hunters Brook Realty Corp. v. Zoning Bd. of Appeals of Bourne, ante 76, 78 n.5, 84 (1982). We are not confronted with a case where denial was based solely upon a legally untenable ground. Nor was the denial whimsical, capricious or arbitrary. Bottomley v. Board of Appeals of Yarmouth, 354 Mass. 474, 476-477 (1968). [Note 9] There is, of course, no legal right to a

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variance. Rose v. Board of Appeals of Wrentham, 352 Mass. 301, 303 (1967). Selectmen of Ayer v. Planning Bd. of Ayer, 3 Mass. App. Ct. 545, 548 (1975).

So far as the convening of a second hearing was concerned, we do not think that the duty of boards of appeals under G. L. c. 40A, Section 18, as amended through St. 1971, c. 1018, to set forth the reasons for its decisions and official actions extends to explaining each event in the procedure. It is sufficient if a record shows, as it did here, that a public meeting was adjourned and a subsequent one held.

The board had relatively little to say about the plaintiffs' claim that they had acquired a nonconforming use as a mobile home park. It based its decision in part on the Gamaches' failure (adverted to in note 9, supra) to possess a mobile home park license. This was some evidence that no mobile home park was operating. Compare Selectmen of Wrentham v. Monson, 355 Mass. 715, 717-718 (1969). The trial judge made an express finding that the nonconforming use asserted by the Gamaches did not exist. That finding had support in the record, which disclosed that no plan of a mobile home park had been filed; those homes had individual wells and septic systems; and each mobile home was individually taxed. Where the evidence establishes facts which justify the decision of the board on a nonconforming use issue, its action will be held to be within its authority although its decision was not, so far as anything said by the board, based on that evidence. Parrish v. Board of Appeal of Sharon, 351 Mass. 561, 568 (1967). See S. Volpe & Co. v. Board of Appeals of Wareham, 4 Mass. App. Ct. 357, 359-360 (1976), which makes the same point in the context of special permits. Even had the Gamaches established the existence of three trailers on the site, a change to a park of nineteen mobile homes on the same land would be an enlargement of nonconforming activity so great as to be different in kind in its effect on the neighborhood. Medford v. Marinucci Bros., 344 Mass. 50, 60 (1962). Brady v. Board of Appeals of Westport, 348 Mass. 515, 523 (1965). See Powers v. Building Inspector of Barnstable, 363 Mass. 648, 653-658 (1973); Selectmen

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of Blackstone v. Tellestone, 4 Mass. App. Ct. 311, 313-314 (1976).

The Gamaches also attack the board's findings on the ground that the chairman of the board improperly considered evidence not before it because before the rehearing the board's chairman visited the locus and examined town tax records concerning the locus. As to the site visit, it is a common practice for members of boards of appeals to look over property as to which they are to make a zoning decision. 3 Anderson, American Law of Zoning Section 20.38 (2d ed. 1977). Zoning is a local matter and courts assume a board of appeals is familiar with local conditions. Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555, 557 (1954). One of the ways to achieve this familiarity is by looking at the land in question. As to the tax record of the property, this again is a matter of local information available for public inspection. The knowledge gained from the tax records, that no tax for a mobile home park had been collected with respect to the locus from the Gamaches, was set forth in the minutes of the rehearing. See Anderson, supra Section 20.39.

4. Challenge to the validity of the by-law. In both of their actions, i.e., the complaint for a declaratory judgment and the appeal of the board's decision under G. L. c. 40A, Section 21, as amended by St. 1974, c. 78, Section 1, the plaintiffs urge that the total prohibition of mobile home parks has no rational foundation and is, therefore, unconstitutional or beyond the authority of the town under G. L. c. 40A. Without intimating that there is any merit in those contentions, we decline to reach them because each challenge to the validity of the by-law fails procedurally.

(a) The declaratory judgment action. Owners of land may seek a determination of the validity of zoning regulations through the declaratory procedures contained in G. L. c. 231A if an actual controversy exists. Woods v. Newton, 349 Mass. 373, 376-378 (1965). See Rayco Inv. Corp. v. Selectmen of Raynham, 368 Mass. 385, 386 (1975). Contrast Sisters of the Holy Cross v. Brookline, 347 Mass. 486, 490-492 (1964), which now stands for the proposition that judicial

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review of the validity of a zoning regulation in the Land Court under G. L. c. 185, Section 1(j1/2), and G. L. c. 240, Section 14A, is the exclusive remedy for landowners only where there is no actual controversy. Woods v. Newton, 349 Mass. at 376-377. If the party seeks to involve a question of constitutionality in the declaratory judgment proceeding, "the attorney general shall also be notified of the proceeding." G. L. c. 231A, Section 8, inserted by St. 1945, c. 582, Section 1. Nothing in the record suggests that the Gamaches notified the Attorney General. The constitutional challenge to the by-law, therefore, falls out of the case. Court St. Parking Co. v. Boston, 336 Mass. 224, 226, appeal dismissed sub nom. Rosengard v. Boston, 355 U.S. 272 (1957). Springfield Preservation Trust, Inc. v. Roman Catholic Bishop, 7 Mass. App. Ct. 895 (1979). See Woods v. Newton, supra at 380 n.4.

(b) The appeal from denial of the variance. In this action the attack on the restrictive by-law is that it "is beyond the zoning authority of the Town of Acushnet." The underlying action is an appeal under G. L. c. 40A, Section 21, [Note 10] from the decision of the board adverse to the Gamaches. A board of appeal is not a proper forum for raising questions as to the validity of a municipal zoning regulation because the powers of such a board "do not include the power to nullify acts of the local legislative body . . . ." Bearce v. Zoning Bd. of Appeals of Brockton, 351 Mass. 316, 319 (1966). On appeal in the Superior Court, it follows that the board could not be taxed with having failed to make a determination of invalidity which it lacked the power to make.

We are not unmindful of cases antedating Bearce in which the validity of a zoning by-law or ordinance was reviewed by a court in the context of an appeal under G. L. c. 40A, Section 21. See e.g., Gem Properties, Inc. v. Board of Appeals of Milton, 341 Mass. 99, 105 (1960); O'Connell v. Brockton Bd. of Appeals, 344 Mass. 208, 209-212 (1962). Cf. Cross v. Planning Bd. of Chelmsford, 345 Mass. 618 (1963), in which

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the court determined the invalidity of a zoning by-law in the context of an appeal under G. L. c. 41, Section 81BB, from a disapproval of a subdivision plan by a planning board. We find implicit recognition, consistent with Bearce, of the exclusion of questions of the validity of zoning regulations from proceedings under G. L. c. 40A, Section 21, in Hallenborg v. Town Clerk of Billerica, 360 Mass. 513, 516-517 n.4 (1971), M. DeMatteo Constr. Co. v. Board of Appeals of Hingham, 3 Mass. App. Ct. 446, 455-456 n.10 (1975), and Healy, Massachusetts Zoning Practice Under the Amended Zoning Enabling Act, 64 Mass. L. Rev. 157, 163 (1979). See also Neuhaus v. Building Inspector of Marlborough, 11 Mass. App. Ct. 230, 231 n.5 (1981), in which we left undecided whether the validity of a zoning ordinance or by-law is to be raised under the "new" zoning enabling act pursuant to G. L. c. 40A, Sections 7, 8 and 17, as appearing in St. 1975, c. 808, Section 3. As we observed in the M. DeMatteo Constr. Co. case, supra at n.10, under the rules of civil procedure it is a simple enough matter to add to a complaint seeking review of a decision of a board of appeals allegations concerning the validity of the zoning regulation in question and a prayer for a declaration as to its validity.

The judgments are substantively correct. In the case of the declaratory judgment action, the judgment, however, should not be in the form of a dismissal of the action, but is to be modified so as to declare that: the board acted within its authority in convening a second hearing so that it might act by at least four members; the notice of the second hearing was sufficient; and no nonconforming use existed. See MacKeen v. Canton, 379 Mass. 514, 516 n.3 (1980). The judgment in the appeal under G. L. c. 40A, Section 21, is affirmed.

So ordered.