377 Mass. 67

November 6, 1978 - January 9, 1979

Worcester County


Under the framework of a new zoning act, G. L. c. 40A, as inserted by St. 1975, c. 808, Section 3, zoning ordinances and by-laws in operation on January 1, 1976, were to continue to be "governed by" the preceding zoning law until municipal acceptance of the new act, but no later than June 30, 1978, and the application of the provisions of the new act about procedure or administration was postponed, equally with its substantive provisions, as far as existing ordinances and by-laws were concerned; upon appeal from a summary judgment annulling the decision of the board of appeals of a town denying the plaintiffs' application, filed May 2, 1977, for a variance from the minimum lot area requirement of the long-standing zoning by-law, and declaring that the application was deemed granted due to the board's failure to make its decision within the seventy-five-day period specified in the new act, this court ordered the summary judgment vacated and the case remanded for further proceedings. [69-75]

The emergency declaration accompanying the Governor's approval of a new zoning act, which contained no emergency preamble in its text and would not of itself have gone into effect before the ninetieth day after his approval, but which stated that some of its provisions should become effective before the ninety days, was advisable as assuring immediate implementation of the legislative design. [73-74]

CIVIL ACTION commenced in the Superior Court on August 11, 1977.

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The case was heard by Beaudreau, J., on a motion for summary judgment.

The Supreme Judicial Court granted a request for direct appellate review.

Alix Smullin for the plaintiffs.

Edward P. Doherty, Town Counsel (Ernest P. Pettinari, Assistant Town Counsel, with him) for the defendant.

KAPLAN, J. The plaintiffs Casasanta and Bedrosian, coowners of lot 213 of a subdivision in the town of Milford, applied to the defendant zoning board of appeals on May 2, 1977, for a variance which would permit them to build a single-family house on the lot although the minimum lot area requirement of 15,000 square feet, established by a long-standing by-law, was not met. The board held a public hearing on the matter on June 23, 1977, pursuant to notice, and at a meeting of the board on June 28 the members voted unanimously to deny the petition. A written decision with a full statement of reasons, dated July 20, 1977, was filed with the town clerk on July 22, 1977 (eighty-one days after the application). Notice of the decision was then promptly mailed to the plaintiffs and others.

Aggrieved, the plaintiffs on August 11, 1977, commenced the present action in the Superior Court to annul the board's decision. The complaint charged: First, the variance must be taken to have been granted as matter of law--"constructively" granted--because of the failure of the board to act within seventy-five days of the application for the variance, in accordance with G. L. c. 40A, Section 15, a provision of the new zoning law enacted in its entirety by Section 3 of St. 1975, c. 808, approved by the Governor on December 22, 1975. Second, the denial of the variance was erroneous and illegal on the merits. Relief was prayed in the form of an annulment of the board's decision with a corresponding declaration of rights. After the defendant's appearance in the action, the plaintiffs moved for summary judgment in their favor advancing only the first ground of their complaint. The affidavits

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supporting and opposing the motion did little more than recount the chronology set out above, and the question as put to the judge reduced to whether it was new Section 15 that controlled, or, as contended by the defendant, Section 18 of the predecessor c. 40A, under which the decision of the board would not fail of effect. The judge granted summary judgment for the plaintiffs. The defendant appealed to the Appeals Court. We granted an application for direct appellate review. [Note 2] We reverse.

We shall note the changes introduced by the new law regarding the period for action by boards of appeals on an application for a variance, and regarding the consequences of inaction. Then we shall look to the new law to discover the date when boards of appeals were bound to begin to comply with these changes of practice.

Section 18 of the old law stated that "[t]he decision of the board shall be made within sixty days after the date of the filing of an appeal, application or petition"; but this court held in Cullen v. Building Inspector of N. Attleborough, 353 Mass. 671, 679 (1968), that the period mentioned in that section was ordinarily to be taken as directory rather than mandatory. Under that dispensation, the board's decision herein would be held not invalidated through lack of timeliness. See also Shuman v. Aldermen of Newton, 361 Mass. 758, 764 n.9 (1972); Scott v. Board of Appeal of Wellesley, 356 Mass. 159, 162 (1969); Crosby v. Board of Appeals of Weston, 3 Mass. App. Ct. 713 (1975). [Note 3] Under Section 15 of the new law, "[t]he decision of the

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board shall be made within seventy-five days after the date of the filing of an appeal, application or petition except in regard to special permits .... Failure by the board to act within said seventy-five days shall be deemed to be the grant of the relief, application or petition sought, subject to an applicable judicial appeal as provided for in this chapter." [Note 4] Thus the stated period was extended, but it would appear that the softening influence of the Cullen case was removed.

We have next to consider the text of St. 1975, c. 808, Section 5, second paragraph, and Section 7, setting forth the effective dates of the new zoning statute to provide transition from the old to the new. The former provision was reconstituted for purposes of clarity as part of Section 7 by St. 1977, c. 829, Sections 3G, 4. [Note 5] Section 7 provides:

"This act shall take effect on [January 1, 1976] as to zoning ordinances and by-laws and amendments, other than zoning map amendments, adopted after said date.

"Zoning ordinances and by-laws in effect on said date shall continue to be governed by the provisions of [G. L. c. 40A] in effect prior to said date until this act is accepted by each respective city or town, provided that no later than [June 30, 1978] all zoning ordinances and by-laws

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shall be brought into conformity with the provisions of this chapter and shall be governed hereby, and thereafter no provisions of [c. 40A] in effect prior to [January 1, 1976] shall govern zoning ordinances and by-laws."

Statute 1975, c. 808, contains no emergency preamble, but the Governor on the date of his approval, December 22, 1975, filed with the Secretary of the Commonwealth a declaration that the chapter was an emergency law and should take effect forthwith (1975 Acts and Resolves at 1132-1133).

Under Section 7 there seems no doubt that the new law as a whole was to take effect "as to" municipal ordinances, by-laws, and amendments (other than map changes), adopted after January 1, 1976, on the respective dates of their adoption. But ordinances and by-laws in operation on January 1, 1976, were to continue to be "governed by" the provisions of the old law until the new law was accepted by the particular municipality; [Note 6] failing such acceptance, then to the extent these ordinances and by-laws were not earlier brought into conformity with the new law, they would be finally governed by the new law on June 30, 1978.

The plaintiffs suggest that in referring to ordinances and by-laws operative on January 1, 1976, and to their delayed supersession by the new law, the Legislature was pointing to the substantive content of both the municipal provisions and the provisions of the new law, and was not addressing itself to matters of procedure or administration. As to the latter, the plaintiffs argue the new law went into effect immediately pursuant to the Governor's emergency declaration. [Note 7]

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There may be some plausibility in reading the second paragraph of Section 7 as concerned only with substance (the "brought into conformity" may have such a ring), but that interpretation has only a surface appeal, as it would seem to limit artificially and improperly both the expression "the provisions" (of the old law) and the words "governed by" (or variant) appearing in that paragraph. So we think the application of the provisions of the new law about procedure or administration was postponed, equally with the substantive provisions, as far as existing zoning ordinances and by-laws were concerned. If a doubt remained on the score of the meaning of the language, one would be entitled to consider the functional suitability of the competing interpretations, and here the plaintiffs' interpretation would be deeply undesirable. Any attempt to distinguish in actual day to day operations between substance, on the one hand, and procedure or administration, on the other, with effective dates differing as to the two categories, would encounter the difficulties notoriously met in myriad contexts in efforts to separate substantive from adjective law. See City Council of Waltham v. Vinciullo, 364 Mass. 624, 626-627 (1974). [Note 8] The point was made convincingly by Armstrong, J., writing in a case similar to the present, Shalbey v. Board of Appeal of Norwood, 6 Mass. App. Ct. 521 (1978), [Note 9] decided by the Appeals Court while the present appeal was pending. [Note 10]

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We need not add to his remarks. [Note 11] We observe, too, that a number of the phases of the new law that could be called procedural or administrative were more onerous than their earlier counterparts, so the need for a breathing space to allow the officials and the public to accommodate to them might be thought apparent to a legislative draftsman. [Note 12]

It may be objected that our conclusion leaves nothing on which the Governor's emergency declaration could operate, but the supposed embarrassment is quite unreal. The new law, in the absence of an emergency preamble in its text, would not of itself have gone into effect before

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the ninetieth day after its approval by the Governor. See art. 48 of the Amendments to the Constitution of the Commonwealth, The Referendum, I. But the law stated that some of its provisions should become effective before the ninety days. In this situation, it was advisable for the Governor to make an emergency declaration to assure that the legislative design would be achieved. [Note 13]

Finally, we note that counsel for the plaintiffs refer to a memorandum, without date, stated to be from the zoning subcommittee of the House Committee on Urban Affairs to the Massachusetts Federation of Planning Boards. This indicated that "procedural actions" should be in accordance with various enumerated sections of new c. 40A, including Section 15, "unless your community's ordinance or by-law specifically contains a different provision." Literally this proposition would favor the plaintiffs, but it does not appear compatible with Section 7. By its enumeration of sections of the new law presumably believed to be procedural, the memorandum demonstrates dramatically the difficulty of the substance-procedure distinction. [Note 14]

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The summary judgment should be vacated and the case remanded to the Superior Court for further proceedings. [Note 15]

So ordered.


[Note 1] Mikael Bedrosian.

[Note 2] There was a cross appeal by the plaintiffs from a feature of the judgment under review. The cross appeal was also taken for direct appellate review, but in the view we adopt in this opinion that appeal need not be separately considered. See note 15 infra.

[Note 3] There have been suggestions in the cases that where delay was excessive and unjustified or prejudice could be shown Section 18 might be read in a more drastic way, see Shuman v. Aldermen of Newton, 361 Mass. 758, 764 n.9 (1972); Burwick v. Zoning Bd. of Appeals of Worcester, 1 Mass. App. Ct. 739, 745 (1974), but no such factor was present here. In the view that Section 18 thus would be considered merely directory, we need not analyze whether a board's vote could constitute a "decision" within Section 18 or whether something more, in writing, would be required for the purpose. Cf. Cullen v. Building Inspector of N. Attleborough, 353 Mass. 671, 679 (1968); Crosby v. Board of Appeals of Weston, 3 Mass. App. Ct. 713 (1975).

[Note 4] Following the words of Section 15 quoted in our text, that section goes on to provide: "The board shall cause to be made a detailed record of its proceedings, indicating the vote of each member upon each question, ... and setting forth clearly the reason or reasons for its decision and of its official actions, copies of all of which shall be filed within fourteen days in the office of the city or town clerk and shall be a public record; and notice of the decision shall be mailed forthwith to the petitioner, applicant or appellant, [and others enumerated]."

The judge below evidently held that the "deemed" language of Section 15 applied. We are not required to define "act" as it appears in Section 15 or otherwise to explicate that section. See note 15 infra.

[Note 5] Regarding this restatement of Section 7, see Shalbey v. Board of Appeal of Norwood, 6 Mass. App. Ct. 521, 524 n.1 (1978).

[Note 6] The town of Milford did not "accept" the new zoning law until March 27, 1978.

[Note 7] That is to say, the effective date of the provisions of the new law regarding matters of procedure or administration would not be regulated by Section 7, and so might, according to the argument, be dealt with in the Governor's declaration. We take a quite different position as to that declaration; see the text below.

[Note 8] It is true that our interpretation might result in a lack of procedural or administrative uniformity during the interim period as between existing and new municipal zoning enactments in the several towns. But we think such a situation less awkward than that consequent on the plaintiffs' view.

[Note 9] We denied further appellate review of this decision at 376 Mass. 936 (1978).

[Note 10] Shalbey involved the question of the effective date of new c. 40A, Section 16, which provides that no reapplication for a permit or variance once denied shall be entertained within two years unless there is a finding of "specific and material changes in the conditions upon which the previous unfavorable action was based." The old law, Section 20, was not so stringent. The plaintiffs, intending to operate a Burger King restaurant, were denied a special permit on March 23, 1976; they reapplied and were granted the permit seven months later. 6 Mass. App. Ct. at 523 (1978). Shalbey held the old law governed.

[Note 11] "[P]rovisions of the new act regulating the content of zoning ordinances and by-laws are closely interwoven with provisions relating to the administration and enforcement of such ordinances and by-laws. Provisions falling on both sides of the effective date dividing line suggested by the plaintiffs are often found within the same section, paragraph, or sentence. Confusing matters further are various provisions which could be difficult to classify, because by their form they relate to content, requiring cities and towns to include various detailed procedural provisions in their zoning ordinances or by-laws, but in substance doubtless set out requirements of general applicability whether or not the ordinance or by-law so provides. Any attempt to sort out the portions of the new c. 40A which bear on the content of zoning ordinances and by-laws from those which do not; and to assign different effective dates accordingly, would produce bizarre results and effect a substantial loss of the chapter's integrity until all portions should have become effective." (Footnotes omitted.) Shalbey, supra at 525-526. Sections 6, 9, and 11 of the new law are cited in Shalbey, id. at 831 nn. 3-6, as mixtures of substantive and procedural law. Other examples are new c. 40A, Sections 7, 13.

[Note 12] Town counsel made this point in argument, citing particularly the more burdensome notice requirements of new c. 40A, Section 11 (defining parties in interest to include every landowner within 300 feet of the property for which special permit or variance is under consideration). One commentator has noted that the seventy-five-day period in new Section 15 is too short, given the customary schedules of zoning boards. McLaughlin, The Obligation of the State Legislature to Amend the New Zoning Act, 63 Mass. L. Rev. 149, 150 (1978). Cf. Sacks & Curran, Administrative Law, 1954 Ann. Survey Mass. Law 126, 127.

[Note 13] The question of the relation of a Governor's declaration to an effective date specified in legislation without an emergency preamble (but subject to referendum under art. 48 of the Amendments to the Constitution of the Commonwealth, The Referendum, I) was left open in Opinion of the Justices, 368 Mass. 889, 897 (1975); see also Prescott v. Secretary of the Commonwealth, 299 Mass. 191, 198-199 (1938); G. L. c. 4, Section 1. The case of Sears v. Secretary of the Commonwealth, 369 Mass. 392, 403-405 (1975), and Opinion of the Justices, supra, support the remark made in our text, as does the analysis by Stewart, The Law of Initiative Referendum in Massachusetts, 12 New England L. Rev. 455, 515-519 (1977).

There are special problems about gubernatorial declarations in connection with legislation not subject to referendum, such as legislation relating to the powers of courts, see Stewart, supra at 519-523, and the Chief Justice of the District Courts may possibly have been venturing in this field when he issued a bulletin saying that the abolition of District Court jurisdiction by reason of new c. 40A, Section 17 (only a minor part of the law) became effective with the Governor's declaration of December 22, 1975.

[Note 14] Neither can we attach much importance to remarks favorable to the defendant's position in a letter from William G. Flynn, Secretary of the Executive Office of Communities and Development, Department of Community Affairs, appearing in a pamphlet entitled "The Zoning Act," published by the agency in August, 1976. Commentators have not faced the question of effective dates squarely but do suggest that the grace period was intended to allow time to conform with all provisions of the new act. Bok & White, The New Zoning Act, 20 B.B.J. 11, 17 (1976); Huber, Zoning and Land Use, 1976 Ann. Survey Mass. Law 449, 449-450.

[Note 15] We have found it unnecessary to deal in detail with the defendant board's contention that its actions in the denial of the variance conformed to new Section 15. Cf. note 4 supra. The plaintiffs cross appealed from a provision of the summary judgment requiring them to give notice of the constructive grant of the variance, so that those aggrieved might duly seek review in the Superior Court. Under our foregoing opinion the cross appeal does not require separate attention.

We leave open the question whether actions as to existing municipal enactments taken during the interim period in compliance with new c. 40A when, in strictness, old c. 40A governed but was not complied with, should be held valid where the actions were taken in good faith and prejudice is not shown. In reserving the question we reflect the fact that there could be conscientious difference of opinion about which regime should obtain during that period.