Board of Appeals v. Lambergs

677 N.E.2d 270, 42 Mass. App. Ct. 411, 1997 Mass. App. LEXIS 61
CourtMassachusetts Appeals Court
DecidedMarch 28, 1997
DocketNo. 96-P-384
StatusPublished
Cited by5 cases

This text of 677 N.E.2d 270 (Board of Appeals v. Lambergs) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Board of Appeals v. Lambergs, 677 N.E.2d 270, 42 Mass. App. Ct. 411, 1997 Mass. App. LEXIS 61 (Mass. Ct. App. 1997).

Opinion

Warner, C.J.

This is an appeal by the board of appeals of Westwood (board), from a judgment of the Norfolk Superior Court determining that the defendants, Aristids and Dzidra Lambergs, were entitled to a constructive grant of a variance from the lot frontage requirements of the Westwood zoning by-law.

The facts may be summarized as follows. In a letter dated September 14, 1993, the Lambergs requested a written determination from the Westwood building commissioner as to whether a vacant lot they owned was buildable under the [412]*412Westwood zoning by-law. The commissioner replied, in a letter dated September 20, 1993, that he recollected the frontage of the parcel to be approximately ninety-four feet, short of the 125-foot frontage required by § 14(b) of the zoning bylaw for the district in which the lot was located.

On November 23, 1993, the Lambergs filed an application with the board for a variance from the lot width and frontage regulations set forth in §§ 14(a)(width) and 14(b)(frontage) of the Westwood zoning by-law. The application included a request for a variance from § 14(a) because at the time the Lambergs were unsure whether their lot complied with the dimensional requirements of that section. They subsequently determined that they could meet the § 14(a) requirements.

In a letter to the board, the building commissioner confirmed that a home could be constructed on the subject lot in compliance with the § 14(a) lot width requirement, but that the lot fell short of the § 14(b) frontage requirement.2 The commissioner suggested that the board make a decision as to both §§ 14(a) and 14(b).

A hearing was held on the Lambergses’ application on December 9, 1993. It focused on their request for a variance from the § 14(b) frontage requirement. At the hearing, the Lambergses’ attorney stated that the frontage shortage was the only area of nonconformity with the zoning by-law. On January 27, 1994, the board held a second hearing on the Lambergses’ variance application. On February 3, 1994, the board rendered its decision. It was filed with the town clerk on the same date. The decision stated that the board had voted to deny the Lambergses’ request for a variance from § 14(a) of the Westwood zoning by-law. No reference was made to § 14(b).

On March 15, 1994, 112 days after their application had been filed, the Lambergses filed with the town clerk a request for a certificate stating that they had been granted a constructive variance from the requirements of § 14(b) pursuant to G. L. c. 40A, § 15, as amended by St. 1987, c. 498, § 3. Section Í5 provides, in pertinent part: “The decision of the board shall be made within one hundred days after the date of the filing of an appeal, application or petition .... Failure by [413]*413the board to act within said one hundred days or extended time, if applicable, shall be deemed to be the grant of the appeal, application or petition.”

On March 25, 1994, the board filed a second decision regarding the Lambergses’ application, terming it an amended decision. That same day the board filed a “Notice of Amended Decision” which stated that the purpose of the second deci-son was to correct an inadvertent omission in the original decision of February 3, 1994. The second decision denied the Lambergses’ request for a variance from both §§ 14(a) and 14(b) of the zoning by-law.

On April 1, 1994, the board filed an appeal in the Norfolk Superior Court pursuant to G. L. c. 40A, § 17,3 seeking a determination that it had acted within the time constraints set forth in G. L. c. 40A, § 15, and requesting that the court deny the defendants’ request for approval of a variance. The board contended that its failure to refer to § 14(b) in its original decision had been an inadvertent clerical error which its amended decision had corrected. It asserted that the amended decision did not change the result of the original decision or grant relief different from that originally granted. The Lam-bergses moved for summary judgment on September 22, 1995, seeking a determination that they were entitled to a constructive grant of a variance from § 14(b). After a hearing, the Superior Court judge allowed the Lambergses’ motion for summary judgment. She determined that the Lambergses were entitled to the constructive grant because the board had failed to take timely action on their application for a variance from the § 14(b) frontage requirements. She ordered the town clerk to issue a certificate to that effect.

The board here makes the same argument it made in the Superior Court. It contends that it acted within the required [414]*414statutory period, but made a clerical error which it should be permitted to correct. It further contends that when the Lam-bergses received the original decision, they knew or should have known that there was an error, since all the testimony at the hearing had centered around the § 14(b) frontage issue. Thus, asserts the board, the Lambergses should have sought a clarification or filed an appeal from the decision within the twenty-day statutory appeal period provided by G. L. c. 40A, § 17.4 We affirm.

General Laws c. 40A, § 15, directs the board to make its decision within one hundred days after the date an application is filed and provides that the board’s failure to do so will result in a constructive grant to the applicant. See Capone v. Zoning Bd. of Appeals of Fitchburg, 389 Mass. 617, 621-622 (1983).5 Section 15, as inserted by St. 1975, c. 808, § 3, further provides that the decision must include “a detailed record of [the board’s] proceedings, indicating the vote of each member upon each question. . . .” The Lambergses’ application required the board to decide two distinct questions: whether the applicants were entitled to a variance from § 14(a) requirements for lot width and whether they were entitled to a variance from § 14(b) requirements for frontage. The board’s original decision failed to address one of the two questions before it within the required one hundred days after the Lambergses had filed their application.

The second decision, which addressed both §§ 14(a) and 14(b), was filed 122 days after the Lambergses’ application had been filed. The board’s failure to act on the request for a variance from the § 14(b) frontage requirement within one hundred days after the Lambergses had filed their application entitled them to a constructive variance regarding § 14(b). [415]*415See Rinaudo v. Zoning Bd. of Appeals of Plymouth, 383 Mass. 885, 885 (1981).6

This result furthers the legislative policy underlying the statutory provision entitling an applicant to a constructive grant if the board fails to act in a timely manner. The Legislature imposed the time constraint in order “to induce the board to act promptly.” Capone v. Zoning Bd. of Appeals of Fitchburg, 389 Mass. at 623. Moreover, by specifying that the board must provide a detailed record of its proceedings as well as each member’s vote on each question, the Legislature required the board to be thorough as well as prompt. As the court held in Capone, the board’s failure to perform “all” of the actions required by the statute will result in constructive relief. Ibid.

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Bluebook (online)
677 N.E.2d 270, 42 Mass. App. Ct. 411, 1997 Mass. App. LEXIS 61, Counsel Stack Legal Research, https://law.counselstack.com/opinion/board-of-appeals-v-lambergs-massappct-1997.