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08/01/78 JOHN H. SHALBEY & ANOTHER v. BOARD APPEAL

August 1, 1978

JOHN H. SHALBEY & ANOTHER
v.
BOARD OF APPEAL OF NORWOOD & ANOTHER



Norfolk. Civil action commenced in the Superior Court on December 30, 1976. The case was heard by Brown, J., a District Court Judge sitting under statutory authority.

Hale, C.j., Grant, & Armstrong, JJ.

SYLLABUS BY THE COURT

Zoning, Special permit; Board of appeals: decision.

The opinion of the court was delivered by: Armstrong

The procedures employed by a town's planning board and board of appeal in considering a reapplication for a special permit within two years after the denial of an original application were governed by G. L. c. 40A, § 20, as amended by St. 1969, c. 870, § 2, rather than by the more restrictive provisions of c. 40A, § 16, as appearing in St. 1975, c. 808, § 3, where the town's zoning by-law had been adopted prior to the effective date of St. 1975, c. 808, and the town had not accepted the provisions of the 1975 act prior to considering the reapplication. [522-527]

In an action seeking the annulment of a decision by a town's board of appeal granting the defendant a special permit, there was no merit to the plaintiffs' contentions that the town's planning board merely "rubber-stamped" the applicant's request to reapply within two years after the denial of its original application and that they were constitutionally entitled to notice of the planning board hearing on whether to consent to the reapplication. [527-528]

In an action seeking the annulment of a decision by a town's board of appeal granting a special permit, there was no merit to the contention that the decision should be annulled because an associate member of the board appeared at the hearing and spoke in favor of the application as a private citizen, though playing no official role at the hearing or in arriving at the decision. [528]

In an action seeking the annulment of a decision by a town's board of appeal granting a special permit, there was no merit to the contention that the decision should be annulled because it contained improper conditions. [528-529]

In an action seeking the annulment of a decision by a town's board of appeal granting a special permit for the operation of a restaurant, the Judge's findings concerning the expected effect of the proposed restaurant on the neighborhood were not clearly erroneous. [529]

This is an action seeking the annulment of a decision by which the defendant board granted to the defendant Jan Co., Inc. (the applicant), a special permit for the operation of a fast-food Burger King restaurant in a district zoned for manufacturing. The plaintiffs, who own premises abutting the locus in the same zoning district, appeal from a judgment upholding the decision.

1. The most substantial of the issues raised by the appeal is the plaintiffs' contention that the application for the permit was subject to certain provisions of G. L. c. 40A, as appearing in St. 1975, c. 808, § 3, rather than to the comparable (but less restrictive) provisions of G. L. c. 40A prior to the 1975 revisions. The provisions in question are those relating to reapplications for a special permit within two years after the denial of an original application. General Laws c. 40A, § 20, as amended by St. 1969, c. 870, § 2, provided in material part that ". . . o application for a [special permit] which has been unfavorably acted upon by the board of appeals shall be considered on its merits by said board within two years after the date of such unfavorable action except with the consent of . . . the planning board . . . ." The 1975 act replaced that section with a new c. 40A, § 16, which is in most respects a reenactment of the old § 20, but which forbids the reconsideration of an application within the two-year period "unless [the board of appeals] finds . . . specific and material changes in the conditions upon which the previous unfavorable action was based, and describes such changes in the record of its proceedings, and unless . . . the planning board consents thereto and after notice is given to parties in interest of the time and place of the proceedings when the question of such consent will be considered."

The procedure followed in the present case was clearly not in compliance with the requirements of the new § 16. On March 23, 1976, the board of appeal rendered a decision denying the applicant a special permit to operate a Burger King restaurant on the locus. The applicant did not seek judicial review of that decision, but obtained the unanimous consent of the planning board on August 3, 1976, to reapply for a permit within the two-year period. The board of appeal heard the reapplication on its merits on September 21, 1976, and its decision granting the permit was dated October 26 of that year. The decision contained no finding of "specific and material changes" or description of such changes as were required by the new G. L. c. 40A, § 16, if it was then in effect. And we assume with the plaintiffs that the planning board failed to give them notice of its proceeding on the question of consent, as contemplated by the new section.

The 1975 revision of c. 40A was approved by the Governor on December 22, 1975, at which time he executed and filed with the Secretary of the Commonwealth an emergency declaration. In the absence of a provision to the contrary in the text of the act, the execution and filing of the emergency declaration would have advanced the effective date of the act to December 22, 1975 (Opinion of the Justices, 368 Mass. 889 [1975]), in which case the actions of the board of appeal and planning board would have been subject to the newly imposed restrictions in the 1975 version of c. 40A, § 16. The question, then, is whether the 1975 act contains any provision which postponed the effective date of the new c. 40A, § 16, as applied to the town of Norwood, to a time later than the actions of the board of appeal and planning board complained of.

The first paragraph of § 7 of the 1975 act (i.e., St. 1975, c. 808) 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 " (emphasis supplied). The second paragraph of that section, as appearing in St. 1977, c. 829, § 4, *fn1 provides: " 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 shall be brought into conformity with the provisions of this chapter and shall be governed hereby, and thereafter no provisions of [G. L. c. 40A] in effect prior to [January 1, 1976] shall govern zoning ordinances and by-laws ...


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