JOHN H. SHALBEY & another vs. BOARD OF APPEAL OF NORWOOD & another.

ARMSTRONG, J. This is an action seeking the annulment of a decision by which the defendant board granted to the defendant Jan Co., Inc. (the applicant), a special permit for the operation of a fast-food Burger King restaurant in a district zoned for manufacturing. The plaintiffs, who own premises abutting the locus in the same zoning district, appeal from a judgment upholding the decision.

1. The most substantial of the issues raised by the appeal is the plaintiffs' contention that the application for the permit was subject to certain provisions of G. L. c. 40A, as appearing in St. 1975, c. 808, Section 3, rather than to the comparable (but less restrictive) provisions of G. L. c. 40A prior to the 1975 revisions. The provisions in question are those relating to reapplications for a special permit within two years after the denial of an original application. General Laws c. 40A, Section 20, as amended by St. 1969, c. 870, Section 2, provided in material part that ". . . [n]o application for a [special permit] which has been unfavorably acted upon by the board of appeals shall be considered on its merits by said board within two years after the date of such unfavorable action except with the consent of . . . the planning board . . . ." The 1975 act replaced that section with a new c. 40A, Section 16, which is in

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most respects a reenactment of the old Section 20, but which forbids the reconsideration of an application within the two-year period "unless [the board of appeals] finds . . . specific and material changes in the conditions upon which the previous unfavorable action was based, and describes such changes in the record of its proceedings, and unless . . . the planning board consents thereto and after notice is given to parties in interest of the time and place of the proceedings when the question of such consent will be considered."

The procedure followed in the present case was clearly not in compliance with the requirements of the new Section 16. On March 23, 1976, the board of appeal rendered a decision denying the applicant a special permit to operate a Burger King restaurant on the locus. The applicant did not seek judicial review of that decision, but obtained the unanimous consent of the planning board on August 3, 1976, to reapply for a permit within the two-year period. The board of appeal heard the reapplication on its merits on September 21, 1976, and its decision granting the permit was dated October 26 of that year. The decision contained no finding of "specific and material changes" or description of such changes as were required by the new G. L. c. 40A, Section 16, if it was then in effect. And we assume with the plaintiffs that the planning board failed to give them notice of its proceeding on the question of consent, as contemplated by the new section.

The 1975 revision of c. 40A was approved by the Governor on December 22, 1975, at which time he executed and filed with the Secretary of the Commonwealth an emergency declaration. In the absence of a provision to the contrary in the text of the act, the execution and filing of the emergency declaration would have advanced the effective date of the act to December 22, 1975 (Opinion of the Justices, 368 Mass. 889 [1975]), in which case the actions of the board of appeal and planning board would have been subject to the newly imposed restrictions in the 1975 version of c. 40A, Section 16. The question, then, is whether

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the 1975 act contains any provision which postponed the effective date of the new c. 40A, Section 16, as applied to the town of Norwood, to a time later than the actions of the board of appeal and planning board complained of.

The first paragraph of Section 7 of the 1975 act (i.e., St. 1975, c. 808) provides: "This act shall take effect on [January 1, 1976] as to zoning ordinances and by-laws and amendments, other than zoning map amendments, adopted after said date" (emphasis supplied). The second paragraph of that section, as appearing in St. 1977, c. 829, Section 4, [Note 1] provides: "Zoning ordinances and by-laws in effect on said date shall continue to be governed by the provisions of [G. L. c. 40A] in effect prior to said date until this act is accepted by each respective city or town, provided that no later than [June 30, 1978] all zoning ordinances and by-laws shall be brought into conformity with the provisions of this chapter and shall be governed hereby, and thereafter no provisions of [G. L. c. 40A] in effect prior to [January 1, 1976] shall govern zoning ordinances and by-laws" (emphasis supplied). The zoning by-law involved in the present case was adopted well before 1975, and it has been stipulated by the parties that Norwood had not accepted the 1975 act when the special permit was granted.

The plaintiffs contend that Section 7 of the 1975 act has no application to the effective date of G. L. c. 40A, Section 16, as inserted by Section 3 of the act. They base their contention on

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the fact that both paragraphs of Section 7 seem to address themselves to the time when the provisions of municipal zoning ordinances and by-laws must have been brought into compliance with the provisions of the new law and not in terms of the effective date of the new law for other purposes, such as administration, enforcement, and amendment of zoning by-laws and ordinances. The argument, as we understand it, is that the effective date of the newly enacted provisions of c. 40A in a given municipality is specified by Section 7 only insofar as those provisions relate to the content of zoning ordinances and by-laws, that all other provisions of the new c. 40A took effect in all municipalities on December 22, 1975, when the Governor filed the emergency declaration, and that the new G. L. c. 40A, Section 16, as a provision having to do with administration of zoning by-laws and not with the content of such by-laws, falls within the latter category.

What the Legislature may have had in mind when it drafted Section 7 is not entirely clear from the language it employed. [Note 2] The plaintiffs' suggested interpretation is plausible in the abstract. In practice, it would be exceedingly difficult to apply. That is because the provisions of the new act regulating the content of zoning ordinances and by-laws are closely interwoven with provisions relating to the administration and enforcement of such ordinances and by-laws. Provisions falling on both sides of the effective date dividing line suggested by the plaintiffs are often found within the same section, [Note 3] paragraph, [Note 4] or sentence. [Note 5]

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Confusing matters further are various provisions which could be difficult to classify, because by their form they relate to content, requiring cities and towns to include various detailed procedural provisions in their zoning ordinances or by-laws, but in substance doubtless set out requirements of general applicability whether or not the ordinance or by-law so provides. [Note 6] Any attempt to sort out the portions of the new c. 40A which bear on the content of zoning ordinances and by-laws from those which do not, and to assign different effective dates accordingly, would produce bizarre results and effect a substantial loss of the chapter's integrity until all portions should have become effective. We do not think that it was the intention of the Legislature that the new c. 40A should take effect in a given municipality in bits and pieces. Compare Goldman v. Dennis, 375 Mass. 197 , 199 (1978). The more likely purpose was to give a municipality until July 1, 1978, to conform its zoning ordinances or by-laws to the requirements of the new c. 40A and to retain the old c. 40A in effect until that time, subject to two exceptions: first, if the municipality chose to have the new c. 40A take effect before July 1, 1978, it could accept "this act" [Note 7] prior to that time; and, second, any new zoning

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ordinances and by-laws or amendments to zoning ordinances or by-laws adopted prior to July 1, 1978, must be in compliance with the new c. 40A whether the municipality had accepted "this act" or not. This appears to be substantially the interpretation suggested in Bok & White, The New Zoning Act, 20 B.B.J. (No.2) 11, 16 (1976), and is to be preferred to the interpretation suggested by the plaintiffs because it is simple to apply and sensible in result.

We conclude, therefore, that the procedures employed by the planning board and the board of appeal in considering the reapplication were governed not by the new G. L. c. 40A, Section 16, but by the old G. L. c. 40A, Section 20.

2. The plaintiffs also argue that, apart from compliance with the new Section 16, the planning board's action in allowing the applicant to reapply for a special permit was improper in two respects: (a) the board, though required by the old Section 20 to exercise judgment in acting on the applicant's request to reapply, did not do so but merely "rubber-stamped" the application; and (b) the plaintiffs were entitled to notice of the planning board hearing as a matter of Federal and State constitutional law. Neither of those issues is properly before us, as it does not appear from the record that they were ever raised in the Superior Court. Royal Indem. Co. v. Blakeley, 372 Mass. 86 , 87-88 (1977). The contentions are without merit in any event, as there has been no showing that the planning board acted in the mechanical fashion asserted, [Note 8] and as we know of no constitutional

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requirement that opposing parties be given notice of a preliminary administrative action of the type contemplated by Section 20.

3. There is no merit in the plaintiffs' contention that the decision of the board of appeal should be annulled because an associate member of the board appeared at the hearing and spoke in favor of the application as a private citizen, though playing no official role at the hearing or in arriving at the decision. Compare Kiss v. Board of Appeals of Longmeadow, 371 Mass. 147 , 159 (1976). Contrast Selectmen of Barnstable v. Alcoholic Beverages Control Commn., 373 Mass. 708 , 710-714 (1977). The last sentence of G. L. c. 40A, Section 14, as in effect prior to St. 1975, c. 808, Section 3, provided: "No member or associate member of the board of appeals shall represent before such board any party of interest in any matter pending before it." We read that sentence as permitting, by negative implication, the appearance of a member in proceedings before the board so long as the member doing so does not represent any party in interest.

4. The contention that the board of appeal's decision was vitiated by the inclusion therein of supposedly improper conditions was not made in the Superior Court and therefore need not be ruled upon unless it is regarded as going to the jurisdiction of that court. Royal Indem. Co. v. Blakeley, supra. But whether or not it be so regarded, the contention is without merit. The condition numbered 5 in the decision, that "[a]dequate drainage must be provided by the applicant," though imprecise, was not one requiring a further determination of substance by the board or otherwise preventing the decision from taking immediate effect. See Planning Bd. of Falmouth v. Board of Appeals of Falmouth, 5 Mass. App. Ct. 324 , 325-327 (1977). Compare Kiss v. Board of Appeals of Longmeadow, 371 Mass. at 158-159. Contrast Weld v. Board of Appeals of Gloucester, 345 Mass. 376 , 378-379 (1963). The "condition" numbered 7 ("It appears portions of this project may come under the jurisdiction of the Conservation

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Commission under the Hatch Act, [G. L. c. 131, Section 40].") is not really a condition at all. Rather, it is merely a caveat that the applicant might be required to await a decision by the conservation commission before being able to act under the special permit granted by the board. The inclusion of such a caveat in the board's decision cannot be regarded as an attempted delegation by the board of its authority to another agency or as affecting the validity of the board's decision, as the conservation commission derives its jurisdiction from the statute cited above and not from anything the board might say. Contrast Kiss v. Board of Appeals of Longmeadow, supra.

5. The findings of the judge concerning the expected effect of the applicant's proposed restaurant on the neighborhood must stand unless clearly erroneous. See Building Inspector of Lancaster v. Sanderson, 372 Mass. 157 , 159-161 (1977). Taking into consideration (a) the fact that the judge had the benefit of a view of the neighborhood (see Kairis v. Board of Appeal of Cambridge, 337 Mass. 528 , 531 [1958]), (b) his power to fill gaps in the formal proof of some of the matters at issue by the exercise of common sense (see Fritsch v. Korostynski, 4 Mass. App. Ct. 868 [1976]), (c) the testimony that no alcoholic beverages would be served on the locus nor any loitering permitted, and (d) the well recognized principle that the weight to be accorded oral testimony is a matter for the trial judge rather than for this court (see Hamilton v. Planning Bd. of Lexington, 4 Mass. App. Ct. 802 [1976]), we cannot say that the judge's findings are clearly erroneous. In reaching this conclusion, we have borne in mind that the criteria for granting a special permit are less stringent than those for granting a variance, and that the wisdom of granting the permit here is not a proper subject for judicial review. Kiss v. Board of Appeals of Longmeadow, 371 Mass. at 153-154. Caruso v. Pastan, 1 Mass. App. Ct. 28 , 30 (1973).

6. We do not reach the further question whether there was sufficient evidence to warrant the judge's findings to

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the effect that there had previously been a natural watercourse flowing across the locus and that the applicant was entitled to use that watercourse for drainage of surface water. The board made no findings in that regard, but instead, as noted in part 4 of this opinion, conditioned the special permit on the applicant's providing "[a]dequate drainage." Under G. L. c. 40A, Section 21, as in effect prior to St. 1975, c. 808, Section 3, the judge was required to determine only "whether or not upon all the evidence the decision exceed[ed] the authority of the board." It was inappropriate for him to include the findings concerning the alleged watercourse, as its existence was not germane to the validity of the permit, but only to the applicant's ability to comply with one of the conditions to which the permit was made subject. The enforcement of that condition will presumably be the responsibility of the inspector of buildings when the applicant seeks a building permit. We therefore treat those findings as surplusage, but, because they are in no way reflected in the judgment appealed from, we need do no more.

No question has been raised as to the form of that judgment.

Judgment affirmed.