MISC 09-413762

December 29, 2009

ESSEX, ss.

Piper, J.


In this case, filed pursuant to G. L. c. 40A, §§ 15 and 17, plaintiff MetroPCS of Massachusetts, LLC (“MetroPCS”) challenges the Notice of Constructive Approval, filed by defendant Lizetta Fennessey (“Fennessey”) on September 21, 2009, concerning her appeal to the Zoning Board of Appeals of North Andover (“Board”), whose members are defendants.

On November 5, 2009, MetroPCS filed its Motion for Judgment on the Pleadings. The municipal defendants filed their own Motion for Judgment on the Pleadings on November 13, 2009. On November 16, 2009, at a scheduled case management conference, counsel for all parties were present and agreed then to hold argument on the pending motions. Counsel did so subject to the stipulation that Fennessey’s written opposition (not yet due or filed) would be filed with the court to review and consider before taking the motions under advisement. On November 23, 2009, Fennessey filed her written opposition, and the case was taken under advisement. Having reviewed all of the parties’ submissions and arguments, I now decide the pending motions.

All parties agree on the timing of the relevant events; they dispute only the legal significance of the actions taken and the dates involved. The matter this is one proper for disposition on the pending motions for judgment on the pleadings. Mass. R. Civ. P. 12(c).

On May 18, 2009, the Building Commissioner of the Town of North Andover granted Building Permit No. 628 to MetroPCS, allowing MetroPCS to construct a wireless communication facility. On May 28, 2009, Fennessey appealed to the Board the Commissioner’s issuance of the building permit. The Board held a hearing on Fennessey’s appeal (“Appeal”) on June 18, 2009 and August 11, 2009. The public hearing closed August 11, 2009. On September 3, 2009, the Board met, and a motion was made that the Board uphold Fennessey’s Appeal. Two members of the Board voted in favor, three against. On September 17, 2009, the Board’s written decision (“Decision”) denying Fennessey’s petition, which had failed to obtain the four votes it needed to prevail, was filed with the Town Clerk. Fennessey filed her notice of constructive approval on September 21, 2009.

Section 15 of G. L. c. 40A provides:

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. . . . 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.

There is no dispute that the vote of the Board (the vote which failed to garner enough votes to sustain Fennessey’s Appeal, and thus turned it down) took place on September 3, 2009, ninety-eight days after Fennessey filed her Appeal. The written Decision was filed with the Town Clerk fourteen days after the vote, or 112 days after the filing of the Appeal.

The Appeals Court held, in Burnham v. Zoning Bd. of Appeals of Hadley, that Section 15 of G. L. c. 40A “allows the board to file its decision within fourteen days following the one hundred day period in which it must act.” 58 Mass. App. Ct. 479 , 483 (2003). The sole issue for decision in the case before me today is whether the vote of the Board that took place on September 3, 2009 was sufficient to qualify as an “act” within the meaning of G. L. c. 40A, § 15. I conclude that it does.

Fennessey argues that the Board, to “act” within the meaning of Section 15, was required to file “any document” with the Town Clerk reporting the Board’s vote. To support her position, Fennessey cites to Board of Alderman of Newton v. Maniace, 429 Mass. 726 (1999) (“Maniace”). In Maniace, the Supreme Judicial Court held that a special permit granting authority satisfied the “final action” requirement of G. L. c 40A, § 9 by filing with the Town Clerk a writing stating the outcome of the vote, but not “setting forth clearly the reason for its decision. . . .” 429 Mass. at 732. From this appellate decision on a different issue, and which relies on a different statute written differently by the Legislature, Fennessey argues that the “filing of the board’s decision in the office of the municipal clerk” is required to satisfy the “act” requirement of Section 15. This is not so.

Maniace dealt with an application for a special permit, and the relevant statutory language is found in G. L. c. 40A, § 9. The case at bar involves an administrative appeal to the Board brought pursuant to G.L. c. 40A, §8, the procedural framework and timetable of which is dealt with in G. L. c. 40A, § 15. The language of the two sections is different: Section 9 requires “final action” and Section 15 requires only that the Board “act.” This difference was explained in O’Kane v. Board of Appeals of Hingham, “Section 15 stands in contrast to Section 9. It does not speak of final action within the [prescribed period] but of a board acting (i.e., deciding) within that period, and then having a further period for filing.” 20 Mass. App. Ct. 162 , 165 (1985). The difference between the two sections was again subject to analysis in Burhham, 58 Mass. App. Ct. at 481-82, where the Appeals Court concluded that

The Legislature did not conform [Section] 15 with the “finality” requirements contained in [Section 9]. Rather, it chose to retain [Section] 15’s seeming two-step process for handling zoning applications: first, the board must decide (“act”); then, second, it must reduce its decision to final written form and file it with the town clerk. “Finality” provisions that appear in some sections should not be implied or read into another section where they do not appear.

Id., at 482.

The holding in Burnham controls my decision on the pending motions. Fennessey’s attempt to overcome the rule in Burnham by pointing to the decision in Maniace ignores both the marked distinction between the two cases, and the obvious fact that Maniace predated Burnham by several years. There is nothing in the language of Section 15, or in the case law interpreting it, that even suggests the Board in this case needed to do more than conduct a vote before the expiration of 100 days to avoid a constructive approval (provided a written decision then was filed within fourteen days of the vote, as took place here).

The Board “acted” for the purposes of Section 15 when it held a vote on September 3, 2009, which was within 100 days of the filing of Fennessey’s appeal. The Board then timely filed its Decision with the Town Clerk within fourteen days of the date on which it acted. Fennessey’s appeal was turned down when the Board acted by voting on September 3, and the Decision of the Board, timely filed on September 17, accurately reflects the Board’s denial of Fennessey’s appeal. For the forgoing reasons, the motions for judgment on the pleadings filed by plaintiff and the municipal defendants are granted.

Judgment accordingly.

Gordon H. Piper


Dated: December 29, 2009.