TOWN OF LANCASTER, by and through its Building Commissioner v. TOWN OF CLINTON; CLINTON FISH AND GAME PROTECTIVE ASSOCIATION, INC.; SCOTT MILLER, ROBERT MARSHALL, EUGENE CHRISTOPH, DAVID STADTHERR, SARAH GULLIVER, JEANNE RICH, JOHN PARSONS, AND FRANCIS SULLIVAN, as they are members of the ZONING BOARD OF APPEALS for the TOWN OF LANCASTER

Plaintiff Town of Lancaster (Lancaster) initiated this action on March 2, 2010, by filing a complaint seeking enforcement of a cease and desist order (Order) issued to Defendant Town of Clinton (Clinton) by the Lancaster Zoning Commissioner in connection with Clinton’s use of a rifle range operated on property Clinton owns in Lancaster (the “Property” or “Rifle Range”). Lancaster also is challenging an alleged constructive grant by the Zoning Board of Appeals for the Town of Lancaster (Board) of Clinton’s appeal of the Order, pursuant to G.L. c. 40A, § 17 (Section 17). Clinton maintains that its appeal was constructively granted when the Board failed to hold a hearing on the appeal within sixty-five days of the Board’s receipt of Clinton’s notice of appeal, as required by G. L. c. 40A, § 15 (Section 15). Lancaster claims that no such constructive grant occurred as a matter of law.

Clinton filed a motion for summary judgment and supportive filings on September 29, 2011, seeking judgment in its favor that: 1) as a result of Lancaster’s failure to hold a timely hearing the Order is invalid; 2) the Board’s decision made on February 4, 2010, and filed February 12, 2010, purporting to deny Clinton’s appeal (Decision) is invalid; and 3) Clinton’s appeal was constructively granted by the Board. Lancaster filed its opposition to Clinton’s motion for summary judgment, which is essentially a cross-motion, and supportive filings on November 8, 2011, seeking a judgment in its favor. Specifically, Lancaster seeks: 1) a declaration that the Board did not constructively grant Clinton’s appeal; 2) the Decision was valid and effective; and 3) Clinton is bound by the Order. A hearing on the cross-motions was held on February 8, 2012, and they were taken under advisement. On August 30, 2012, Defendant Clinton Fish and Game Protective Association (CF&GPA) filed a motion seeking leave of the court to file a motion for summary judgment as if timely filed. CF&GPA’s motion was denied on October 10, 2012, and is not the subject of this decision.

The facts material to the cross-motions for summary judgment are not in dispute.

1. The Property is located in the southerly corner of Lancaster, within Lancaster’s Residential Zoning District under Chapter 220 (Zoning) of the Lancaster General Code (Zoning Bylaw).

2. Beginning on or about April 25, 2007, Clinton leased the Property to CF&GPA, with Clinton retaining the right to use it for training and qualification of its police officers.

3. On or about June 7, 2007, Lancaster issued a cease and desist order to the CF& GPA (CF&GPA Order) for alleged violation of the Zoning Bylaw, which prohibit the discharge of any firearm in a residentially zoned area without a special permit.

4. CF&GPA appealed the CF&GPA Order to the Board, asserting that the Rifle Range constituted a prior nonconforming use, and that use was therefore 7permitted without zoning relief.

5. The Board affirmed the CF&GPA Order and CF&GPA filed an appeal in the Land Court (First Land Court Action).

6. Clinton, in its capacity as the owner of the Property, subsequently intervened as a party in the First Land Court Action.

7. On or about October 2, 2008, Lancaster and Clinton voluntarily dismissed the First Land Court Action with respect to Clinton’s claims through a stipulation of dismissal. Clinton waived its right to contest the Board’s finding that the discharge of firearms for a recreational purpose on the Property required a special permit. Lancaster agreed that the dismissal did not constitute a waiver by Clinton of any rights and remedies it may have had in connection with use of the Rifle Range on the Property by the Clinton Police Department.

8. Shortly thereafter, Lancaster and CF&GPA filed a stipulation of dismissal dismissing CF&GPA’s claims in the First Land Court Action with prejudice.

9. On or about September 29, 2009, Lancaster issued the Order to Clinton.

10. On October 29, 2009, Clinton timely filed with the Lancaster Town Clerk its statutory notice of appeal to the Board asserting several grounds.

11. On or about December 16, 2009, the Board contacted Clinton regarding a possible extension of the statutory sixty-five day period to hold its hearing, seeking a written agreement to schedule the appeal hearing for January 28, 2010. The Board and Clinton never came to an agreement regarding scheduling and the Board scheduled a hearing for February 4, 2010 (ninety-eight days after the notice of appeal had been filed).

12. In a letter dated January 15, 2010, addressed to the Board, Clinton’s counsel stated that as of October 29, 2009, the Board had failed to hold a timely appeal hearing as required by Section 15, and that the appeal had therefore been constructively granted.

13. After the notice of the February 4, 2010 hearing was published, Clinton’s counsel sent another letter dated January 25, 2010, to the Board. This letter stated that due to the Board’s failure to hold a timely appeal hearing, any action taken in connection with the hearing to be held on February 4th would be “of no force and effect” and therefore Clinton would not attend the hearing.

14. On February 4, 2010, the Board held the hearing and voted to deny Clinton’s appeal of the Order.

15. In a letter dated February 11, 2010, addressed to the Town of Lancaster Town Clerk, Clinton’s counsel stated that the letter was to serve as notice, pursuant to Section 15, that its appeal had been constructively granted by the Board when it failed to hold the hearing within the statutory sixty-five day period and therefore it was Clinton’s position that the action taken by the Board at the February 4th hearing was invalid.

16. On February 12, 2010, Lancaster issued its decision (Decision) and filed notice of it with the Town Clerk.

17. Clinton did not appeal the Decision under G. L. c. 40A, § 17.

* * * * * *

“Rule 56 (c) of the Massachusetts Rules of Civil Procedure… provides that a judge shall grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Att’y Gen. v. Bailey, 386 Mass. 367 , 370–71 (1982) (internal quotations omitted). In this action, the court is tasked with interpreting the language of Section 15 and applying it to the agreed facts. The case is therefore ripe for summary judgment.

Section 15 provides in relevant part:

The board of appeals shall hold a hearing on any appeal… within sixty-five days from the receipt of notice by the board of such appeal…

…The decision of the board shall be made within one hundred days after the date of the filing of an appeal…. The required time limits for a public hearing and said action, may be extended by written agreement between the applicant and the board of appeals…. 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…. (emphasis added.)

Clinton alleges that summary judgment should be granted in its favor because the Board’s failure to hold a hearing on its appeal of the Order within sixty-five days of the Board’s receipt of Clinton’s notice of appeal, as directed by Section 15, mandates a constructive grant of its appeal. Clinton argues that an applicant is entitled to a constructive grant for either a board’s failure to comply with the statutory directive to hold a hearing within sixty-five days or the directive for a board to “act” within one hundred days. It argues that both deadlines are mandatory. Otherwise, it asserts, the sixty-five day requirement would be “inoperative and superfluous,” a result to be avoided under the rules of statutory construction.

Lancaster claims that it is entitled to summary judgment because Clinton’s claim of a constructive grant of its appeal is based upon an erroneous reading of Section 15. Lancaster contends that, read properly, Section 15’s requirement that the board of appeals hold a hearing within sixty-five days of the filing of the notice of appeal is directory and not mandatory. Further, Section 15 only imposes constructive approval or grant where the board of appeals fails to make a decision within 100 days of the filing of the notice of appeal. Lancaster also argues that Clinton is estopped from contesting the Order or the validity of the Decision due to Clinton’s failure to seek judicial review of the Decision in accordance with G. L. c. 40A, § 17.

Based on the language of Section 15, and the facts established by the summary judgment record, the court is persuaded by Lancaster’s arguments. Consequently, the court holds that there has been no constructive grant of Clinton’s appeal for the reasons set forth below. Further, based on the summary judgment record, Clinton is now estopped from contesting the validity of the Order and the Decision due to its failure to appeal from the Board’s final action.

I. Constructive Approval Under Section 15

“As to a statute imperative in phrase, it has often been held that where it relates only to the time of performance of a duty by a public officer and does not go to the essence of the thing to be done, it is only a regulation for the orderly and convenient conduct of public business and not a condition precedent to the validity of the act done.” Zuckerman v. Zoning Bd. of Appeals of Greenfield, 394 Mass. 663 , 667 (1985) (quoting Cheney v. Coughlin, 201 Mass. 204 , 211 (1909)).

The language of Section 15 is strikingly similar to the language of G. L. c. 40A, § 9, where the Land Court has held that the “essence of the thing to be done” in the context of an appeal from the denial of a special permit application was the arrival at a final decision on the applicant’s request for relief. Town of Scituate v. Bjorklund, 13 LCR 395 (2005). In so finding, the court held that so long as the decision of the board was made and filed well within the time allowed by the statute, the failure of the board to hold its public hearing did not give rise to a constructive grant of the special permit. This analysis is fully supported by the language of G. L. c. 40A, § 9, in the context of a special permit decision, and it is equally applicable where, as here, the statute at issue is Section 15. In both situations, the statutory language reflects a legislative determination that the “potent” remedy of constructive grant is limited to those situations where a municipal board fails to act within the statutorily mandated deadline, but is not available when a deadline along the administrative route is not met. Town of Scituate, 13 LCR at 397. In contrast, see Uglietta v. City Clerk of Somerville, 32 Mass. App. Ct. 742 (1992), where the court distinguishes between the stricter approach taken when private parties as opposed to municipalities miss administrative deadlines.

This court concludes that the legislature did not intend to create the remedy of constructive approval for failure to hold a hearing within sixty-five days of the filing of a notice of appeal, provided the Board takes final action within the time prescribed by statute. The remedy of constructive approval is explicitly prescribed for the Board’s failure to act within 100 days, but not for the failure to hold a timely hearing. That omission from the text of Section 15 is significant. See Zuckerman, 394 Mass. at 666. The deadlines enumerated in Section 15 are to ensure prompt action by the board and secure the rights of persons aggrieved by the decisions of the board to seek judicial review under Section 17. See Capone v. Zoning Bd. of Appeals of Fitchburg, 389 Mass. 617 , 622-24 (1983). Failure to hold a hearing within sixty-five days does not have the effect of potentially eliminating or extending indefinitely the period for appeal under Section 17, as would failure to timely file the decision. See Zuckerman, 394 Mass. at 666–67. Constructive approval is a heavy penalty to impose on a board of appeals, Cardwell v. Bd. of Appeals of Woburn, 61 Mass. App. Ct. 118 , 122–23 (2004) (quoting Aldermen of Newton v. Maniace, 429 Mass. 726 , 731 (1999)), and as such should not be read into parts of Section 15 in which it is not explicitly prescribed.

Though Clinton argues otherwise, the sixty-five day hearing requirement is not rendered inoperative or superfluous if read in this manner. The requirement exists to “promote method, system and uniformity in the modes of proceeding” of boards of appeal. Cheney v. Coughlin, 201 Mass. 204 , 212 (1909) (quoting Torrey v. Milbury, 38 Mass. 64 , 67 (1838)).

II. Failure to Exhaust Statutory Remedies

G. L. c. 40A, § 17 states that a “person aggrieved by a decision of the board of appeals” must “bring[] an action within twenty days after the decision has been filed in the office of the city or town clerk.” Section 17 also states that this remedy is “exclusive.” Relying on its position that its appeal had been constructively granted, Clinton never sought judicial review of the Decision under Section 17. It may not now seek to have the court review the merits of the Decision or the validity of the underlying Order in what would be the equivalent of an appeal. See Town of Eastham v. Chaves, 69 Mass. App. Ct. 1118 (2007) (unpublished order issued pursuant to Appeals Court Rule 1:28); Ferruzzi v. E.Z. Disposal Serv., No. 99-2045E, 2000 Mass. Super. LEXIS 165, at *20 (Mass. Super. Ct. Feb. 17, 2000).

For the reasons stated above, the court finds that Clinton’s appeal of the Order was not constructively granted as a result of the Board’s failure to hold its public hearing within sixty-five days where the Board reached a timely decision and filed it timely with the Town Clerk. Further, Clinton is barred from disputing the merits of the Board’s Decision or the validity of the Order in this action because it did not appeal the Decision of the Board.

The parties have until January 11, 2013, to advise the court in writing as to whether this case is ready for judgment, as the court notes that CF&GPA remains a named defendant, although it is not clear what relief is sought against it.