413 Mass. 562 | Mass. | 1992
Lead Opinion
The plaintiff owns a 147,000 square foot parcel of land in the city of Newton. On November 2, 1987, the board of aldermen of Newton (aldermen) approved the plaintiff’s site plan and request for a special, permit for the demolition of existing structures and the construction of an
On May 11, 1988, the plaintiff notified the Department of Environmental Protection of oil contamination from underground storage tanks at the site, and thereafter cleanup was undertaken. On June 9, 1988, the Newton fire department notified the plaintiff that the plaintiff’s emergency access plan was not acceptable. The special permit required fire department approval as a prerequisite to the issuance of a building permit. Although the record is not entirely clear, the plaintiff asserts, and the defendants do not dispute, that on March 27, 1990, a basic agreement was reached between the plaintiff and the Newton fire department regarding emergency access issues. In the meanwhile, on October 18, 1988, the Newton commissioner of inspectional services (building inspector) issued the plaintiff a building permit for construction of a foundation, and one week later the foundation work began.
The plaintiff applied for another building permit for construction of “Building D,” on June 8, 1990, and the building inspector issued that permit on August 14, 1990. On August 16, the defendant abutters appealed to the board of appeals of Newton (board) as authorized by G. L. c. 40A, §§ 8 and 14 (1) (1990 ed.), and the board held a hearing the following month.
“1. That construction as required by the Special Permit did not begin prior to the expiration of the one year requirement of the [aldermen’s] Order.
“2. Tolling of the time within which to exercise the Special Permit occurred between June 9, 1988 [when the fire department notified the plaintiff that the emergency access plan was not acceptable] and March 27, 1990 [when the plaintiff and the fire department came to an agreement].
“3. The Partnership [plaintiff] did not proceed with due diligence, after receipt of the waiver Approval [from the Department of Environmental Protection] on May 6, 1989, to commence the cleanup of the contaminated soil until June of 1990 and, therefore, that period of time cannot be counted as tolling the time within which to exercise the Special Permit.”
The plaintiff appealed from the board’s decision to the Land Court pursuant to G. L. c. 40A, § 17 (1990 ed.). The plaintiff’s complaint contains three counts. Count I, characterized therein as a “Procedural Appeal,” asserts that the board “failed to reach a decision and conclusion” because it had not come to a consensus “as to any reason for its revocation of the building permit for Building D” nor had it set forth clearly “the reason for its decision.” Count II, termed “Substantive Appeal under G. L. c. 40A, § 17,” alleged among other things that the board’s decision “exceeds [its] authority” because “[a]s a matter of law, the procurement of, and commencement of work under, the March 1988
The plaintiff moved for summary judgment on Counts I and II. A judge in the Land Court, addressing the motion only as to Count I, allowed the motion. In an explanatory memorandum, the judge focused on the language in G. L. c. 40A, § 15, requiring that “[t]he concurring vote of four members of a board [of appeals] consisting of five members . . . shall be necessary to reverse any order or decision of any administrative official under this chapter.” She focused also on the provision that “[t]he 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 for its decision and of its official actions.” The judge concluded that “the statute clearly requires that the Board set forth the reason for its decision, and this the Newton Board was unable to do since there was no reason on which the four members agreed. Accordingly the Board reached no decision and should have dismissed the appeal.” Based on that reasoning, the Land Court judge annulled the decision of the board and dismissed the defendant abutters’ appeal to the board. The judge neither reached the plaintiff’s contentions with respect to Count II nor a second argument the plaintiff had advanced in reference to Count I, that the board’s decision was fatally flawed because it is apparent that at least one of the board members based his vote on a clearly erroneous ground.
The board and the abutters appealed from the judgment entered in the Land Court and the failure of the Land Court judge to order judgment in their favor. We transferred the appeal here on our own initiative. We now affirm the judgment entered in the Land Court, although our reasoning differs from that of the judge.
Our conclusion, contrary to that of the Land Court judge, that the board satisfied the requirements of G. L. c. 40A, § 15, with respect to concurrence and the setting forth of the board’s reason for its decision, requires us to consider the plaintiffs further argument, in support of its motion for summary judgment on Count I, that the decision reveals that at least one of the four participating board members based his or her vote on a clearly erroneous ground. As the board’s decision reveals, at least one member concluded that the running of the one-year commencement of construction period was tolled between June 9, 1988, when the Newton fire department notified the plaintiff that the plaintiffs emergency access plan was unacceptable, and March 27, 1990, when the plaintiff and the fire department reached an agreement. Subtracting that time, 656 days, from the period from November 24, 1987, when the special permit became effective, until August 16, 1990, when the abutters filed their appeal from the building inspector’s issuance of the building permit for Building D, a total of 996 days, leaves 340 days, which is less than one year. The plaintiff correctly argues that the member or members who concluded that the tolling period was from June 9, 1988 to March 27, 1990, had to have committed a
Judgment affirmed.
The Land Court judge did not reach the question whether the plaintiff was entitled to summary judgment on Count II annulling the board’s decision and dismissing the abutters’ appeal to the board. The parties have limited their arguments on appeal to the propriety of the judgment favorable to the plaintiff on Count I. Therefore, we do not address Count II except to note that there is at least surface appeal to the plaintiff’s argument advanced below that, since a building permit for the construction of a foundation was issued, and construction pursuant to that permit took place, within one calendar year from November, 1987, without regard for tolling periods, the special permit’s requirement that it be “exercised” within one year after it was approved, that is, that construction pursuant to a building permit be commenced within that year, was met.
Concurrence Opinion
(concurring, with whom Liacos, C.J., joins). I join in the court’s conclusion in the second part of its opinion that at least one member of the board based his or her decision on a clearly erroneous ground. I do not agree that “the provision in G. L. c. 40A, § 15, requiring a concurring vote of four members of a board of appeals consisting of five members means only that four members must agree on the result” (emphasis supplied). Ante at 566. I do agree, however, that “four board members must agree on why they have reached a particular result.” Id. In other words § 15 requires concurrence among at least four members of a five-member board in the reason for the board’s decision. The board conceded that no consensus was reached and that none of the various reasons for the approval attracted the necessary four votes. There was some support for the view that the appeal should be granted because construction was not begun
The court says the reason for the board’s action is that the plaintiff did not exercise the special permit by commencing construction within the time required. Ante at 566. This conclusion, it seems to me, overlooks the fact that one or more members agreed with that precise proposition, while others were unable to accept that premise, but believed instead that the appeal should be allowed because the plaintiff did not proceed with due diligence. In such circumstances the record of the board’s proceedings does not demonstrate the reason for its decision.