CARLO COMPAGNONE, JR. v. BARBARA RANDO, JOHN SERGI, MARK A. HICKERNELL, GLENNA GELINEAU, and GORDON LaSANE, as they are members and associate members of the WALTHAM ZONING BOARD OF APPEALS, and not individually.

In response to the housing emergency created by the return of veterans of World War II, the Legislature in 1946 passed an emergency special act permitting cities and towns to grant variances to residential owners allowing them to add additional living units to their buildings. The City of Waltham’s Zoning Board of Appeals granted such a variance to Mildred E. Burke, the predecessor in title to plaintiff Carlo Compagnone, Jr., allowing her to add a third apartment to her two-family building, notwithstanding that the property was, and still is, located in a residential zone limited to one or two-family buildings. This 1946 variance provided that the third unit could only be rented to veterans and, most crucially, would lapse after seven years. No one ever sought to extend the variance, either in 1953 or after, and Mr. Compagnone purchased the property in 1996 believing it was a lawful three-family house. When the building inspector informed Mr. Compagnone in 2012 that the variance had indeed lapsed nearly sixty years earlier, he sought a renewal of the variance from the Waltham Zoning Board of Appeals. The ZBA denied his application, and this appeal follows. Because the ZBA denied the application solely on the erroneous grounds that it lacked the authority to extend the variance, this case shall be remanded to the ZBA so that it can consider the application on its merits.

Procedural History

The plaintiff Carlo Compagnone, Jr. filed his complaint on May 9, 2013, naming as defendants the members of the Waltham Zoning Board of Appeals (ZBA). The case management conference was held on June 26, 2013. The plaintiff filed his First Amended Complaint (amended complaint) on July 1, 2013. The amended complaint is an appeal from the ZBA’s April 22, 2013, decision, which denied Compagnone’s application to reestablish a 1946 variance on his property at 162-164 Brown Street, Waltham. The amended complaint has four counts. Count I is an appeal under G.L. c. 40A, § 17. Count II seeks a declaration pursuant to G.L. c. 231A, § 1, that the ZBA is authorized to remove the conditions of the 1946 variance. Count III seeks a declaration pursuant to G.L. c. 231A, § 1, that the conditions of the 1946 variance are unenforceable and null and void. Count IV is a claim for equitable estoppel.

The ZBA filed Defendants’, Members of the Waltham Zoning Board of Appeals, Motion for Summary Judgment (summary judgment motion), along with the Memorandum of Law in Support of the Waltham Zoning Board of Appeals’ Motion for Summary Judgment, and Appendix on August 2, 2013. On September 27, 2013, Compagnone filed Plaintiff Carlo Compagnone, Jr.’s Cross-Motion for Summary Judgment and Opposition to Defendants’ Motion for Summary Judgment (cross-motion for summary judgment), Plaintiff Carlo Compagnone, Jr.’s Memorandum in Support of His Cross-Motion for Summary Judgment and Opposition to Defendants’ Motion for Summary Judgment, Plaintiff Carlo Compagnone, Jr.’s Response to Defendants’ Undisputed Material Facts and Statement of Additional Material Facts, the Affidavit of Carlo Compagnone, Jr. (Compagnone Affidavit), and the Affidavit of Kate Moran Carter, Esq. (Moran Affidavit). On October 11, 2013, the ZBA filed Defendants’, Members of the Waltham Zoning Board of Appeals, Reply to Plaintiff’s Opposition to Summary Judgment and Cross-Motion for Summary Judgment, Memorandum of Law in Support of Defendants’ Motion to Strike Plaintiff’s Additional Statement of Facts, and Memorandum of Law in Support of Defendants’ Motion to Strike Counsel’s Affidavit. On October 15, 2013, Compagnone filed Plaintiff Carlo Compagnone, Jr.’s Reply to Defendants’ Opposition to Plaintiff’s Cross-Motion for Summary Judgment and Plaintiff Carlo Compagnone, Jr.’s Opposition to Defendants’ Memoranda to Strike Portions of Counsel’s Affidavit and of Plaintiff’s Additional Statement of Facts.

The court heard the summary judgment motion, the cross-motion for summary judgment, the ZBA’s two motions to strike on October 17, 2013. The motions to strike were denied. The summary judgment motion and the cross-motion for summary judgment were taken under advisement. This order follows.

Summary Judgment Standard

Summary judgment may be entered if the “pleadings, depositions, answers to interrogatories, and responses to requests for admission . . . together with affidavits . . . show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Mass. R. Civ. P. 56(c). In viewing the factual record presented as part of the motion, I am to draw “all logically permissible inferences” from the facts in favor of the non-moving party. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). “Summary judgment is appropriate when, ‘viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.’” Regis Coll. v. Town of Weston, 462 Mass. 280 , 284 (2012), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991). Where the non-moving party bears the burden of proof, the “burden on the moving party may be discharged by showing that there is an absence of evidence to support the non-moving party’s case.” Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 711 (1991); see Regis Coll., 462 Mass. at 291-292.

Undisputed Facts

The following facts are undisputed.

1. Plaintiff Carlo Compagnone, Jr. and his father Carlo Compagnone, Sr. own the property located at 162-164 Brown Street, Waltham, Massachusetts, by a foreclosure deed dated March 1, 1996, and recorded in the Middlesex South Registry of Deeds at Book 26263, Page 223 (Property). The Property is improved by a three-story dwelling, constructed in 1900. ZBA’s Statement of Agreed Facts ¶ 5 (ZBA Facts); First Amended Compl., ¶ 11.

2. At all relevant times, the Property has been located in a Residence B zoning district. Under Waltham’s zoning ordinance, both single and two-family detached dwellings are allowed by right within the Residence B zoning district. Multi-family dwellings housing three or more families are not allowed within the Residence B zoning district. First Amended Compl., ¶ 12; Affidavit of Kate Moran Carter, Esq., Exh. B (Carter Aff.).

3. In 1944, Congress enacted the Servicemen’s Readjustment Act (the G. I. Bill) as a comprehensive program to aid returning World War II veterans in readjusting to civilian life. Consistent with this act, between 1945 and 1955 the Waltham ZBA granted variances to owners of two-family homes located in the Residence B zoning district to convert the third floor of two-family dwellings into a separate third unit. ZBA Facts ¶ 1.

4. On or about June 10, 1946, the prior owner of the Property, Mrs. Mildred E. Burke, applied to the ZBA for a variance allowing her to convert the third floor of the building into an apartment to be used by her son or another war veteran. First Amended Compl., ¶ 14. At this time, the property was also located in the Residence B district. First Amended Compl., ¶ 15. On June 29, 1946, after a public hearing, the ZBA granted Mrs. Burke her requested variance “for a period of 7 years”, allowing her to convert the third floor into another dwelling unit “to be used for housing returned veterans” (the 1946 variance). Compl. Exh. B; Carter Aff. Exh. A.

5. On June 14, 1946, two weeks before the ZBA granted Mrs. Burke the 1946 variance, the Legislature enacted the “Emergency Act to Facilitate and Encourage the Providing of Homes,” allowing boards of appeal to grant variances to accommodate returning veterans. The Waltham City Council accepted the Act on July 21, 1946. St. 1946, c. 592, §§ 2, 5; ZBA Facts ¶ 3 & Exh. A.

6. Between 1945 and 1955, the ZBA granted ten variances to increase the number of dwelling units subject to the conditions that the variance was granted for seven years and the dwelling unit or units could only be let to returning veterans. During that same period, the ZBA granted 22 such variances that imposed the veterans-only condition but did not have time limits. Carter Aff. ¶¶ 6-8 & Exhs. C, D & E.

7. Neither Mrs. Burke nor a subsequent owner of the Property ever filed a request for an extension of the 1946 variance before the seven year expiration date of June 29, 1953, or afterward, prior to Mr. Compagnone’s application. ZBA Facts ¶ 4.

8. At lease since 1996, the City of Waltham has assessed and taxed the Property as a three-family building. Affidavit of Carlo Compagnone, Jr. ¶ ¶ 10, 11 (Compagnone Aff.).

9. After seeing an advertisement in the Boston Globe, Mr. Compagnone and his father purchased the Property at a foreclosure auction on March 1, 1996. The Boston Globe advertisement described the Property as a three-family dwelling. ZBA Facts ¶ 5; Compagnone Aff. ¶¶ 2-3 & Exh. A.

10. Before closing, the Waltham Fire Department conducted a smoke detector check on the Property. The resulting Certificate of Compliance for Smoke Detectors issued by the Fire Department described the Property as a three-family building. Compagnone Aff. ¶ 6 & Exh. B.

11. In October 1996, Mr. Compagnone received a permit from the Waltham Wire Department to add a fourth electrical meter, serving as a public meter. Compagnone Aff. ¶ 8 & Exh. C.

12. In 1997, Mr. Compagnone received a building permit to replace the existing porch on 162-164 Brown Street. Compagnone Aff. ¶ 12.

13. Mr. Compagnone was informed in late 2012 by the Waltham Building Inspector that he would need approval from the Board to “continue using the building as a three-family” residence. ZBA Facts ¶ 6.

14. In late 2012, the Building Inspector informed Mr. Compagnone of the 1946 variance and its conditions, and told him that he would need ZBA approval to continue to use the Property as a three-family building. ZBA Facts ¶ 6; Compagnone Aff. ¶ 13.

15. Mr. Compagnone applied to the ZBA on November 14, 2012 requesting a variance to continue renting the building as three separate units. ZBA Facts ¶ 7 & Exh. D.

16. There are neighboring buildings located in the Residence B zoning district that received similar variances to house veterans and are still recognized as multi-family homes today. Carter Aff., Exhs. D, I.

17. The ZBA held hearings on March 5, 2013 and April 9, 2013 after due public notice. On April 9, 2013, the Board denied the request. On April 22, 2013 the ZBA filed its Notice of Decision with the Waltham City Clerk as No. 2013-02 (Decision). First Amended Compl., ¶ 9 & Exh. A; ZBA Facts ¶ 8.

18. On May 9, 2013, Mr. Compagnone filed this action, appealing the Decision.

Discussion

An appeal of a zoning board of appeals decision is de novo; that is, in an action under § 17 the “court shall hear all the evidence pertinent to the authority of the board . . . and determine the facts, and, upon the facts as so determined, annul such decision if found to exceed the authority of such board . . . or make such other decree as justice and equity may require.” G.L. c. 40A, § 17. Thus, under § 17, review of a local board’s decision involves a "'peculiar' combination of de novo and deferential analyses." Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374 , 381 (2009). The court is obliged to find facts de novo and may not give any weight to those facts found by the local board. G.L. c. 40A, § 17; Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 72 (2003) (noting "[i]n exercising its power of review, the court must find the facts de novo and give no weight to those the board has found"); Kitras v. Eccher, 21 LCR 565 , 570 (2013) (noting the court must “review the factual record without deference to the board's findings.”). The court, however, must give deference to the local board’s decision and may only overturn a decision if "based on a legally untenable ground or is unreasonable, whimsical, capricious or arbitrary." MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 639 (1970); Britton, 59 Mass. App. Ct. at 72; Kitras, 21 LCR at 570.

In this action, Mr. Compagnone has appealed the ZBA’s Decision denying his variance request. Because no one has a right to a variance, “[r]arely can a court order the granting of a variance when the board has denied the petition.” Ferrante v. Board of Appeals of Northampton, 345 Mass. 158 , 161 (1962); see Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555 , 559 (1954). The burden for overturning a denial of a variance request is therefore very high: the plaintiff must prove that the variance was denied solely on a legally untenable ground or that the decision was arbitrary or capricious. DiGiovanni v. Board of Appeals of Rockport, 19 Mass. App. Ct. 339 , 349-350 (1985); Geryk v. Zoning Appeals Bd. of Easthampton, 8 Mass. App. Ct. 683 , 684 (1979); see Pendergast, 331 Mass. at 559-560. The Court does not concern itself with the wisdom of the denial, but only with whether any of the grounds for denial had any legal validity and a substantial basis in fact. DiGiovanni, 19 Mass. App. Ct. at 349; Wolfman v. Board of Appeals of Brookline, 15 Mass. App. Ct. 112 , 119 (1983).

Mr. Compagnone’s variance application to the ZBA indicated that he sought to reinstate and continue the 1946 variance. In the Decision, the ZBA gave three reasons for denying Mr. Compagnone’s application: “1. That the use variance, that was granted in 1946, was granted for seven (7) years. 2. The Board no longer has the authority to grant use variances. 3. It has been used illegally as a three (3) family from 1953 to this date.” The Decision sets forth the facts stated in Mr. Compagnone’s application, but contains no findings. The ZBA’s reasons for its denial are based on a belief that it did not have the authority to reinstate and continue the 1946 variance. As discussed below, because this belief is mistaken, its reasons do not have any legal validity.

The 1946 variance was validly granted under the authority of the G.I. Bill and St. 1946, c. 592, §§ 2, 5. At the time the 1945 variance was issued, there was no obligation to record variances with the registry of deeds. The seven-year time limit, by which the 1946 variance would expire in 1953, was a legally valid condition. The ZBA at the time could reasonably have found that the housing emergency that prompted the G.I. Bill and St. 1946, c. 592, was temporary, so that the relief from the City’s use restrictions afforded by the variance should be temporary as well. See Huntington v. Zoning Bd. of Appeals of Hadley, 12 Mass. App. Ct. 710 , 715-716 (1981) (duration restriction in variance must relate to use of land, not be tied to lifetime and ownership of a particular individual).

The 1946 variance expired in 1953; no one sought to extend the variance before it expired. Indeed, no extension of the 1946 variance was ever sought until Mr. Compagnone’s 2012 application. Instead, the City treated the Property as a three-family house. As discussed, the ZBA found that the expiration of the 1946 variance, the Property’s continued use as a three-family house after expiration, and the ZBA’s lack of authority to grant use variances under the current zoning ordinance required denial of Mr. Compagnone’s application.

General Laws c. 40A, § 10, explicitly provides that use variances “granted prior to [January 1, 1976] but limited in time, may be extended on the same terms and conditions that were in effect for such variance upon said effective date.” G.L. c. 40A, § 10. This provision would seem to apply to the 1946 variance, as it was a use variance limited in time. The Decision makes clear that the ZBA did not believe that this provision of § 10 applied to Mr. Compagnone’s application because the 1946 variance expired before the application. That belief is incorrect. This provision of § 10 does not require the variance holder to apply for an extension of a pre-1976 variance before its time limit runs. Such a requirement appears later in § 10, where the statute requires a variance to be exercised within one year of its granting or lapse, but provides that the grantee may apply for an extension “provided . . . that the application for such extension is filed . . . prior to the expiration of the one year period.” Id. “[W]here the Legislature has employed specific language in one paragraph, but not another, the language should not be implied where it is not present.” Beeler v. Downey, 387 Mass. 609 , 616 (1982). Thus, that the Legislature, within the same section, required an extension application of the one-year time limit to be filed before expiration but placed no such restriction on extension requests for pre-1976 variances indicates that the lack of such restriction for pre-1976 variances was intentional. As a general rule, unless otherwise barred by statute, a zoning authority may consider requests to extend a lapsed special permit or variance. See Patricia E. Salkin, 2 American Law of Zoning § 13.41 (5th ed. 2013). [Note 1]

Because the ZBA based its denial solely on the erroneous grounds that it did not have the authority to consider Mr. Compagnone’s request for extension of the 1946 variance, it never considered the merits of whether the 1946 variance should be extended. Therefore, this matter must be remanded to the ZBA. Upon remand, the ZBA shall consider whether the 1946 variance should be extended on its same terms and conditions. In doing so, the ZBA shall be guided by the following considerations. First, under § 10, the ZBA “may” extend the 1946 variance, G.L. c. 40A, § 10, meaning that it is not required to do so. Second, although § 10 speaks of extending pre-1976 variances “on the same terms and conditions,” id., the condition of the 1946 variance that the third housing unit “be used for housing returned veterans” is unenforceable, and shall no longer be part of any renewed or extended variance. Third, notwithstanding § 10’s direction that the variance may be extended on the same terms and conditions, the ZBA has the inherent authority, and indeed the obligation, to modify conditions of the 1946 variance if it finds that "circumstances affecting the property have changed since the variance was granted.” Zamperini v. Plymouth Zoning Bd. of Appeals, 21 LCR 331 , 335 (2013); see Wendy’s Old Fashioned Hamburgers of N.Y., Inc., 454 Mass. at 384-385. Finally, as with any other variance application, the ZBA should consider Mr. Compagnone’s application in a public hearing and issue a decision setting forth its reasons. Id. at 380.

Conclusion

For the foregoing reasons, it is hereby ORDERED that this case is remanded to the City of Waltham Zoning Board of Appeals (ZBA) so that the plaintiff Carlo Compagnone, Jr. may submit to the ZBA a petition, in the form of a remand zoning petition, requesting from the ZBA the extension of a variance to allow the use of the property owned by Mr. Compagnone at 162- 164 Brown Street, Waltham, Middlesex County, Massachusetts (the Property) as a three-unit residential building (the Remand Petition).

The ZBA shall schedule a public hearing on the Remand Petition as soon as possible and no later than 65 days after the filing of the Remand Petition. Notice of the public hearing shall be provided pursuant to G.L. c. 40A, § 11 and sent to all parties in interest. Any costs of advertising the public hearing shall be borne by Mr. Compagnone. No new application fee shall be charged to Mr. Compagnone for the Remand Petition.

In considering the Remand Petition, the ZBA shall reconsider the evidence presented in the proceedings on the original petition that is the subject of this action along with the Remand Petition and any new evidence presented as part of the Remand Petition. At the public hearing, Mr. Compagnone may present evidence and testimony pertaining to the Remand Petition and the zoning relief requested in the Remand Petition. After the close of the public hearing, the ZBA shall consider all the evidence, including but not limited to the evidence presented as part of the proceedings of the original petition, the Remand Petition, and evidence presented during the public hearing. After consideration of all the evidence, the ZBA shall issue a written decision on the Remand Petition, with findings supported by the evidence, in accordance with the City of Waltham Zoning Ordinance, G.L. c. 40A, § 10, and this Order (the Remand Decision). The ZBA shall issue and file the Remand Decision with the Waltham City Clerk as soon as possible and no later than 90 days after the close of the public hearing.

The court shall retain jurisdiction of this matter for all purposes, including, but not limited to: (1) enforcing the terms and conditions of this Order of Remand, and (2) hearing any subsequent appeals. Mr. Compagnone shall be entitled to appeal the Remand Decision pursuant to G.L. c. 40A, § 17. Any such appeal shall comply with the requirements of § 17, shall be filed as a Complaint after Remand, and shall be docketed as part of this action.

The parties shall jointly report to the court on the status of the Remand Petition no later than February 9, 2015.

SO ORDERED