DONALD M. PROUTY v. MARTIN W. COHEN, JOHN P. TAYLOR, JOSEPH J. COSTA, as they constitute the members of the TOWN OF FALMOUTH BOARD OF APPEALS.

The plaintiff brought this action pursuant to G.L. c. 231A, [Note 1] seeking a declaration on only one issue; namely, that his application for a special permit submitted to the defendant Town of Falmouth Board of Appeals (the Board) was constructively granted by the Board's failure to take final action upon the application within the seventy-five day limitation period established by G.L. c. 40A, § 15. The plaintiff has alleged no set of facts in his complaint which bring into question the issue of whether the Board's decision was unreasonable, arbitrary, capricious, or whimsical.

This case was originally filed in the Barnstable Superior Court. The plaintiff filed a motion for summary judgment in that Court.and a Justice of that Court issued a memorandum of decision thereon and denied the motion for summary judgment on the grounds that the motion sought to collaterally attack the validity of the Falmouth by-law at issue, and therefore, that the Superior Court lacked jurisdiction to hear the case. The plaintiff subsequently moved to have the case transferred to the Land Court Department, and that motion was allowed. The plaintiff then brought another motion for summary judgment in this Court, the motion at issue herein, and the Court held a hearing thereon.

Based upon all matters entitled to consideration under Mass. R. Civ. P. 56, I find the following to be the undisputed material facts:

1/ The plaintiff, Donald M. Prouty (Prouty), is the owner of a parcel of land located at Worcester Court, E. Falmouth, Massachusetts.

2/ The defendants Martin Cohen, John P. Taylor, and Joseph J. Costa, Jr. are all members of the Town of Falmouth Board of Appeals (the Board).

3/ On July 31, 1986, Prouty filed with the Town Clerk of Falmouth an application (the application) requesting that he be allowed to extend a pre-existing, nonconforming use by the construction of a building which would contain four single-bedroom apartments. The existing structure contains three single-bedroom apartments and an office space.

4/ The application was submitted on a form entitled "Petition For Special Permit".

5/ On August 25 and September 1, 1986, the Board published a notice of a public hearing on the application.

6/ On September 9, 1986, the Board held a hearing on Prouty's application (the hearing); and, on December 8, 1986, the Board filed a decision dated December 3, 1986 with the Town Clerk (the decision).

7/ The decision of the Board provides that

The Board finds that the site is not adequate in terms of size or suitable for seven multi-family dwellings (sic.) units and an office. The lot is only 15,650 square feet and is a long narrow lot. Four of the proposed multi-family dwelling units were to be located in a new building on the site and the Board finds the addition of four new units to be substantially more detrimental than the existing nonconforming structure/use. The property could be utilized and upgraded in a way so as not to need a special permit and the Board finds seven multi-family dwelling units on this lot substantially more detrimental that what currently exists in view of the density of the property.

Therefore, to grant a special permit would not be in harmony with the purpose and intent of the Falmouth Zoning By-Laws or Section 6, chapter 40A, M.G.L.

8/ Prouty filed a timely appeal from the decision of the Board and requested a judgment of the court pursuant to G.L. c. 231A that the application filed on July 31, 1986, was constructively granted by the failure of the Board to act within 75 days of the time the application was filed.

9/ Section 1222 of the by-law in effect at the time of the hearing provides as follows:

Pre-existing, nonconforming structures or uses may be extending (sic.), altered, or changed only by Special Permit from the Board of Appeals. Any such change, extension or alteration shall not be substantially more detrimental than the existing nonconforming use or structure to the neighborhood. . . .

1. Recognizing the need to provide some guidelines for determining relative detrimentality (sic.), and recognizing there are basic and consistent principles of zoning which are broadly accepted, the following standards shall apply to the granting of a Special Permit:

a. The standards of Section 7350.

. . .

c. Where the proposed use is regulated by other sections of this by-law, the applicable standards of those sections shall also be considered in determining whether the proposal is substantially more detrimental.

The standards of § 7350 are the standards set out in the By-Law for the grant of a special permit.

10/ The existing structure on the locus is a pre-existing, nonconforming structure containing three single-bedroom apartments and an office space.

11/ Section 7330 of the by-law provides, in part, that "Special Permits shall only be issued after a public hearing which must be held within sixty-five days after the effective date of filing of a Special Permit application ." Section 7340 of the by-law provides, in part, that "Special Permit Granting Authorities shall act within ninety days following a public hearing . . . ."

The sole issue before the Court on this motion for summary judgment is whether Prouty's special permit application was constructively granted by the Board's failure to take final action upon it within the seventy-five day limitation period of G.L. c. 40A, § 15. In reviewing the undisputed facts related to that issue, I rule that the plaintiff is not entitled to his requested relief, and that judgment should issue for the defendant. See Community National Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56.

I begin by ruling that the Board took final action upon Prouty's application for a special permit within ninety days of the date of the public hearing on said application, as required by both G.L. c. 40A, § 9 and § 7340 of the by-law. [Note 2] Prouty argues, however, that, pursuant to G.L. c. 40A, § 6, he is not required to obtain a special permit to change, extend or alter a pre-existing, nonconforming structure or use, and therefore, the seventy-five day limitation period for acting upon applications under G.L. c. 40A, § 15 applies. [Note 3] The Board did not act upon Prouty's application within the seventy-five day period provided for under G.L. c. 40A, § 15, and therefore, if Prouty is not required to obtain a special permit to conduct the work contemplated by his application, then his application would be deemed to be constructively granted under the provisions of G.L. c. 40A, § 15. In order to reach the main issue under consideration in this case, I must first determine whether Prouty is required to obtain a special permit under G.L. c. 40A, § 6 to conduct his contemplated improvements.

The parties agree that the work contemplated by Prouty's application falls under G.L. c. 40A, § 6 and under § 1222 of the by-law. The second sentence of G.L. c. 40A, § 6 provides as follows

Pre-existing nonconforming structures or uses may be extended or altered, provided, that no such extension or alteration shall be permitted unless there is a finding by the permit granting authority or by the special permit granting authority designated by ordinance or by-law that such change, extension or alteration shall not be substantially more detrimental than the existing nonconforming use to the neighborhood.

Section 1222 of the by-laws provides, in part, as follows

Pre-existing, nonconforming structures or uses may be extending (sic.), altered, or changed only by Special Perrnit from the Board of Appeals. Any such change, extension or alteration shall not be substantially more detrimental than the existing nonconforming use or structure to the neighborhood. . . . (emphasis added)

The by-law clearly adds the language "only by Special Permit", to the parallel provision in G.L. c. 40A, § 6. As I have noted in a prior case, § 6 does not require that a § 9 special permit be obtained in order for a pre-existing, nonconforming structure or use to be changed, extended or altered, if the permit granting authority makes the proper finding. Public Storage, Inc. v. City of Chelsea, Misc. Land Crt. Case No. 124429, pp. 8-9, nn. 4 & 5.

Because § 6 does not expressly require that a special permit be obtained to change, extend or alter a pre-existing, nonconforming structure or use, it is unclear how a board considering an application coming under the pertinent provision of § 6 should deal with such requests. [Note 4] Many cities and towns have attempted to deal with this ambiguity by using the special permit process for applicants wishing to change, extend or alter a pre-existing, nonconforming structure or use. See e.g. Willard v. Board of Appeals of Orleans, 25 Mass. App. Ct. 15 (1985); Fitzsimonds v. Board of Appeals of Chatham, 21 Mass. App. Ct. 53 , 56 (1985); Sullivan v. Board of Appeals of Harwich, 15 Mass. App. Ct. 286 , 287 (1983).

The Appeals Court has construed § 6 as entitling an applicant to the issuance of a special permit if the appropriate permit granting authority makes the § 6 "finding". Willard, 25 Mass. App. Ct. at 19-22; Fitzsimonds, 21 Mass. App. Ct. at 56. It seems clear that if the Appeals Court is construing § 6 as entitling an applicant to the issuance of a special permit when the appropriate permit granting authority makes the § 6 "finding", then by implication, the Appeals Court is also ruling that the substantive standards associated with the grant of a special permit under § 9 are inapplicable in the § 6 situation. The Appeals Court therefore appears to be construing § 6 as imposing the procedural requirements for the issuance of a special permit in the § 6 situation. I therefore rule that the provision of § 1222 of the by-law which calls for the issuance of a special permit to change, extend or alter a pre-existing, nonconforming structure or use is valid. [Note 5]

I now turn to a consideration of the main issue in the plaintiff's motion: was Prouty's special permit application constructively granted by the Board's failure to take final action upon it within the seventy-five day limitation period of G.L. c.40A, § 15?

The by-law requires that Prouty obtain a special permit to conduct his contemplated work, and moreover, G.L. c. 40A, § 6 has also been construed as entitling an applicant to the issuance of a special permit when the appropriate finding is made. Both c. 40A and the by-law set out the same specific time limitation for boards to act upon special permit applications, and therefore, as to those provisions, the by-law and the General Laws are not in conflict. Moreover, such time limitations are clearly procedural in nature. I therefore rule that the ninety day limitation period set forth in § 7340 of the by-law is a proper and valid exercise of the Town's zoning powers under G.L. c. 40A, and moreover, I rule that § 7340 is applicable to the Board in considering Prouty's application. [Note 6] Because the Board acted upon Prouty's special permit application within the ninety day limitation period, I rule that said application was not constructively granted This ruling disposes of the sole issue in this motion as well as in the plaintiff's complaint, and therefore, judgment shall issue for the defendant.

Judgment accordingly.