WALTHAM DEVELOPMENT TRUST and COLEBROOK-WALTHAM, INC. vs. CITY OF WALTHAM and CITY COUNCIL OF THE CITY OF WALTHAM.

On June 24, 1988, the Plaintiffs filed their complaint herein appealing from a decision of the Defendant City Council denying the Plaintiffs' application for a special permit under G.L. c. 40A , §17 and seeking a determination under G.L. c. 231A as to whether or not the special permit was constructively granted by failure of the Defendant City Council's failure to take "final action" during the statutory period established by c. 40A , §9 and seeking the resolution of various other matters.

The Plaintiffs have moved for partial summary judgment on the issue as to whether or not the Defendant City Council, in its capacity as special permit granting authority, failed to take final action within the meaning of G.L. c. 40A, §9 on the Plaintiffs' application for a special permit within ninety days of the hearing thereon; and if so, the consequences thereof.

This cause came on to be heard on November 11, 1988. Affidavits, including depositions, arguments of counsel and various documents have been considered. I find and rule that as to the issue raised herein, there are no genuine issues of material fact and therefore the case is ripe for partial summary judgment pursuant to Mass. R. Civ. P. 56, Community National Bank v. Dawes, 369 Mass. 550 (1976).

The following facts are pertinent and undisputed:

1. The Plaintiff Colebrook-Waltham, Inc. ("Colebrook") is the owner of several acres of land at Second Avenue and Route 128 in Waltham ("Locus").

2. On February 12, 1988, the Plaintiff Waltham Development Trust, on its own behalf and as agent for Colebrook, properly filed under the Waltham Zoning Ordinance a petition for special permit to construct an office building on Locus.

3. The City Council, as special permit granting authority, held a public hearing on the petition March 14, 1988.

4. The ninetieth day from March 14 was June 12, a Sunday. Under G.L. c. 4, §9, the Council had until the end of the following day, June 13th, to take final action.

5. On the evening of June 13, 1988, the Council met, discussed and at about 11:30 P.M. voted to deny the petition. The City Clerk was present at the Council meeting and recorded the vote.

6. The City Clerk remained in the Council Chamber at least until midnight, 12:00 P.M., at which time the meeting adjourned. At some time after 11:30 P.M. and prior to adjournment, the Clerk was handed the order denying the petition, signed by the Council president and Acting Mayor. The Clerk placed the order with the Council records in his personal possession. The Order was not filed in the Clerk's office until after 12:00 P.M., June 13th, i.e., sometime on June 14th. Council records are kept both in the Clerk's office in the Council Chamber.

The pivotal matter to be decided is whether the "in person" delivery to the City Clerk was sufficient or whether the filing must be made at the office of the City Clerk to comply with the statute.

Both parties agree that final action, to avoid approval by default, was required by June 13, 1988.

I find and rule that the "in person" delivery to the City Clerk did not comply with the statute.

Both parties cite the following language of Reed v. Acton, 120 Mass. 130 (1876) in support of their positions:

A document may properly be said to be filed with a town clerk when it is placed in his official custody and is deposited in the place where his official records and papers are usually kept.

Assuming that the signed order was placed in the Clerk's official custody on June 13th, by his own admission it was not "deposited in the place where his official records and papers are usually kept" until sometime on the 14th.

When a cut-off date is established by statute, it must be strictly adhered to, a proposition with which neither party disagrees. The required action, however, is that the document not only be placed in the Clerk's official custody, (which probably does not require it to be delivered to him personally) but that it also be deposited in the place where such records are usually kept. Clearly the reason for this is that a person should know with some certainty where he may obtain notice and the record of an action which concerns him and in which he may have an appeal, or an interest in the expiration of an appropriate appeal period. To hold the personal possession of the Clerk to be sufficient without more, would conceivably allow him to pocket the order and remain away from his office and presumably the petitioner, for an unspecified time during which the appeal period would be running. While council documents are apparently also kept in the Council Chamber, this does not appear to be the place where the City Clerk's official records are kept.

It it therefore

ADJUDGED and ORDERED that the City Council of the City of Waltham, in its capacity as special permit granting authority, failed to take final action within the meaning of G.L. c. 40A, §9, on the Plaintiffs' application for a special permit within ninety days of the special hearing thereon and accordingly, the special permit is deemed granted; and it is further

ADJUDGED and ORDERED that the Plaintiffs have complied with all provisions of G.L. c.40A, §9 for the perfection of the special permit and no one has appealed therefrom; and it is further

ADJUDGED and ORDERED that the Plaintiffs are entitled to receive from the Waltham City Clerk a certificate of approval for the special permit.

By the Court