Opinion
14-P-945
10-15-2015
JAY W. LINGERMAN & another v. 6 MILL ROAD, LLC, & others.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiffs Jay and Janet Lingerman appeal from a Land Court judgment upholding the granting of a special permit by the planning board of the town of Ipswich (planning board) for construction of a barn manager's apartment in an existing barn on the abutting property of the Gosselins which is used for a commercial horse stabling and training operation. The Lingermans seek to annul the planning board's grant of the special permit, asserting the Land Court judge erred in allowing summary judgment for the defendants.
The property is owned by defendant 6 Mill Road, LLC (the LLC), which is in turn owned by Raymond and Linda Gosselin. For convenience we refer to the LLC and defendant Raymond Gosselin together as the Gosselins.
Analysis. Our review of a summary decision is de novo. Richardson v. Board of Appeals of Chilmark, 81 Mass. App. Ct. 912, 912 (2012). "Summary judgment is granted where there are no issues of genuine material fact, and the moving party is entitled to judgment as a matter of law." Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638, 643-644 (2002). "We may consider any ground supporting the judgment." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991).
On appeal the Lingermans claim error in the judge's decision applying the two-year moratorium period in G. L. c. 40A, § 16, and errors by the planning board in the hearing process.
General Laws c. 40A, § 16, inserted by St. 1975, c. 808, § 3, states in relevant part:
"No appeal, application or petition which has been unfavorably and finally acted upon by the special permit granting . . . authority shall be acted favorably upon within two years after the date of final unfavorable action unless said special permit granting authority . . . finds, . . . by a vote of four members of a board of five members . . . , 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 all but one of the members of 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 Lingermans assert that the planning board failed to find that there were "specific and material changes," as required by G. L. c. 40A, § 16, to support its decision to grant the special permit on October 31, 2012, within the moratorium period after the planning board earlier had voted to deny the special permit on June 8, 2011.
It is true that such a finding did not explicitly appear in the planning board's decision, and that the better practice would be for the planning board to make a specific, written finding. Nonetheless, the judge did not err in concluding that the planning board's finding is readily apparent in its decision. As the judge observed, the planning board on June 8, 2011, previously had denied the Gosselins' application for a special permit "because the [z]oning [b]oard at that time found the 1973 variance condition limited use of the property to a single-family dwelling, and a barn manager's apartment could only be accessory to a commercial use." In his review of the record, however, the judge noted the finding made by the zoning board of appeals of Ipswich in a decision filed on August 30, 2012, that "the conditions of a 1973 variance . . . are no longer controlling as to the property." While noting that the planning board's 2012 decision "does not specifically mention the Gosselins' acquisition of [an adjoining parcel known as] [l]ot B and the frontage it supplied, which rendered the 1973 variance no longer controlling," the judge properly concluded that "this was a material change in the conditions on which the [p]lanning [b]oard's June 2011 denial rested."
The planning board decision stated, "An accessory use, such as a barn manager's apartment, is customarily incidental and subordinate to a legally existing principal use. Since the only recognized use of the property by the [zoning board of appeals] is residential, there is nothing in the Zoning Bylaw to support a barn manager's unit as an accessory to a residence."
The Lingermans' separate appeal from the Land Court judgment affirming this decision of the zoning board of appeals is before us in no. 14-P-946, also decided this day.
"Whether the plans or the surrounding conditions have changed sufficiently to justify a reapplication during the moratorium period is principally for the local board to determine." Ranney v. Board of Appeals of Nantucket, 11 Mass. App. Ct. 112, 116 (1981). Moreover, it readily is apparent that the planning board's reconsideration of the application, taken up on motion of a planning board member, was "responsive to [the] ground of refusal mentioned by the board in its rejection of the first application." Id. at 117.
Next, the Lingermans claim errors in the planning board's hearing procedures. The planning board held a public hearing on the application for a special permit on July 5, 2012, and after two continuations voted on the application at its meeting on August 16. With three votes in favor and two opposed, the required supermajority was not reached. At the planning board's meeting on October 25, 2012, a member who voted against approval moved to reconsider, and the vote to approve the application was five to zero. The decision of the planning board was filed with the town clerk on October 31, 2012.
General Laws c. 40A, § 9, inserted by St. 1975, c. 808, § 3, states that a special permit issued by a special permit granting authority "shall require . . . a vote of at least four members of a five member board."
The Lingermans assert that after the failure to reach a supermajority the planning board, without a new application before it and without notice, proceeded to the unanimous vote on October 25, improperly changing or reversing its vote of August 16. However, as the judge properly noted, the planning board never filed the August 16 vote with the town clerk, and therefore had not taken "'final action' on the Gosselins' application." Accordingly, the August 16 vote remained open for reconsideration. Final action of the planning board came when its decision, including the addition of two favorable votes to the three previous favorable votes, was filed with the town clerk on October 31, 2012. "The filing of the board's decision in the office of the municipal clerk constitutes 'final action' as that term is used in [G. L. c. 40A,] § 9." Aldermen of Newton v. Maniace, 429 Mass. 726, 729 (1999). Final action having occurred within ninety days after the close of the public hearing on August 16, 2012, that action was valid under c. 40A, § 9.
Contrary to the Lingermans' assertion regarding lack of notice, the agenda for the October 25, 2012, public hearing included this item: "6 Mill Road, Special Permit for Barn Manager's Unit: Acceptance of denial decision or revote." Plaintiff Jay Lingerman and counsel were present for the hearing.
Finally, we agree with the judge's conclusion that the planning board's decision to issue the special permit complied with c. 40A, § 16, as matter of law.
Judgment affirmed.
By the Court (Cypher, Meade & Massing, JJ.),
The panelists are listed in order of seniority.
Clerk
Entered: October 15, 2015.