Hall v. Zoning Board of Appeals

General Laws c. 40A, § 16, as inserted by St. 1975, c. 808, § 3, provides, in relevant part, that “[njo . . . application . . . which has been unfavorably and finally acted upon . . . shall be acted favorably upon within two [919] years after the date of final unfavorable action unless . . . [the board] finds ... by a vote of four members . . . specific and material changes in the conditions upon which the previous unfavorable action was based . . . .” The zoning by-law essentially tracks the statute. The plaintiffs make no argument before us concerning the finality of the board’s decision of May 13, 1992, and instead take the position that the two-year moratorium was inapplicable because the grant of their application with conditions was a favorable rather than unfavorable decision. Philip E. Magnuson for the plaintiffs. Ronald H. Rappaport, Town Counsel, for the defendants. There are significant considerations which disprove the plaintiffs’ position. First, there is the plain meaning of the word “unfavorable,” which, according to Webster’s Third New Inti. Dictionary 2495 (1966), includes “tending to retard, discourage, or make more difficult.” The condition prevented the plaintiffs from breaking ground until the board, within the requisite time, was satisfied that financing for the project was solidly in place and lifted the condition. Sometimes a condition of a special permit is so burdensome that the grant of an application with conditions is a decision from which an appeal can be taken pursuant to G. L. c. 40A, § 17. See Planning Bd. of Falmouth v. Board of Appeals of Falmouth, 5 Mass. App. Ct. 324, 327-328 (1977); Klein v. Planning Bd. of Wrentham, 31 Mass. App. Ct. 777, 778 (1992). Moreover, as noted by the Superior Court judge, the plaintiffs’ reasoning would allow a “disappointed applicant . . . [to] evade the manifest statutory purposes as well as the exclusivity provisions of c. 40A, § 17, by seeking to shed a disagreeable condition through repetitive applications at frequent intervals.” Whether the conditions in fact disappointed the plaintiffs is irrelevant. Cf. Dodge v. Prudential Ins. Co., 343 Mass. 375, 381 (1961). The manifest purpose or “policy which underlies statutory texts such as § 16 [is] to give finality to administrative proceedings and to spare affected property owners from having to go repeatedly to the barricades on the same issue.” Ranney v. Board of Appeals of Nantucket, 11 Mass. App. Ct. 112, 115 (1981). We conclude that the two-year waiting period set out in c. 40A and the Edgartown zoning by-law was applicable to the plaintiffs, who did not receive the requisite number of votes to overcome that bar. Our conclusion makes it unnecessary to consider the plaintiffs’ remaining contentions, which, in any event, warrant no discussion beyond that set out in the comprehensive decision of the Superior Court judge and the brief of the defendants. Judgment affirmed.