Daily Development for Tuesday, July 30, 2002

By: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

ZONING AND LAND USE; PROCEDURE; DECISION: A zoning board member need not be part of the board at the time a decision is finally approved and signed if that member did participate in the hearing and deliberations over the issue.

Cameron v. DiVirgilio 768 N.E.2d 1094 (Mass.App.Ct. 2002).

On September 26, 1998, Bruce DiViriglio ("Appellee") applied for a special permit to build a supplemental apartment onto his single family house. All the three members of the Board visited the site and presided at a public hearing held on January 7, 1999 (the "Hearing"). The Board voted unanimously to approve the special permit on the condition that the house be owner occupied. Subsequently, the Board's administrative assistant drafted a zoning permit and a decision based upon the decision rendered at the Hearing. Two of the Board members signed the decision, while the third, Susan Woglom, authorized the administrative assistant by phone to sign it on her behalf. The decision was then filed on February 1, 1999.

Neighbors of the DeViriglio ("Appellants") appealed the Board's decision to the district court claiming that (i) the special permit was invalid because of "Susan Woglom related concerns" [unspecified], and (ii) the grant of a special permit would cause increased vehicular traffic and would cause a decrease in the neighborhood's property values.

Appellants argued that the special permit was faulty because Woglom was not a member of the Board when the decision was filed with the town clerk on February 1, 1999. On December 28, 1998, Susan Woglom informed the town that she would be out of the country January 1999 through January 2000, and requested the appointment of a temporary replacement for her on the Board. On January 11, a "temporary Alternate Member of the Zoning Board of Appeals" was appointed, beginning on January 11, 1999 and expiring on January 1, 2000.

The trial judge rejected the claims. On the issue of Woglon's participation, the court found that Woglom was in fact a member [on February 1, 1999] "who had been granted a temporary leave from her duties." The neighbors appealed.

The appeals court affirmed, but found the trial court's reasoning to be beside the point. The court stated that the relevant date for determining the validity of the permit was the date when the Board approved the permit at the Hearing, which was January 7, 1999. On that date, Woglom's status as a member of the board was "unquestioned." The court explained that it was the public deliberation and decision making that was essential, whereas the filing of the decision, if it reflects the result voted upon at a valid meeting, was "a necessary but ministerial act simply memorializing the action taken at the meeting."

Appellants further asserted that the clerk's certificate was illegal because it was signed by the Board's administrative assistant for Woglom rather than by Woglom herself. The appeals court called this argument "without merit" and noted it was particularly so because there was no statutory requirement that all the Board members sign a decision.

Comment: The editor concurs that this is a common sense interpretation of the facts. But does the court's approach prove too much. What if Woglom's participation was necessary to make a quorum as required by the zoning ordinance. Since it appears that the procedure required the order to be approved at a meeting, then technically speaking the Board was in a position to revise the order at that time. What if it had done so?

Would the court have come out the same way? Can one argue that Woglom's failure to participate in the decision to leave the order alone also deprived the parties to the dispute of the participation of a duly constituted board with respect to all relevant aspects of the process? (Of course, this is not likely to be a problem when only one member is missing, but the opinion, by extension, could apply when other members are also missing.)

WORDS AND PHRASES; "GROSS FLOOR AREA:" The construction of a zoning bylaw to define gross floor area as not including staircases and attics is a "reasonable construction" of the term.

Cameron v. DiVirgilio 768 N.E.2d 1094 (Mass.App.Ct. 2002). , discussed under the heading: "Zoning and Land Use; Procedure; Decision."

The Appellants' final claim was that the special permit conflicted with the Town of Amherst's zoning by-laws because the gross floor area ("GFA") of the supplemental apartment would exceed the 600 foot maximum, if it the calculation thereof were to include, as the Appellants urged should have been the case, either the square footage of the staircase or of the attic. The Amherst zoning by-laws did not define "GFA", and the Board interpreted GFA to mean habitable space, thus not requiring the inclusion of attic or staircase square footage in any calculations. The appeals court noted that "the reasonable construction that a zoning board of appeals gives to the by-laws it is charged with implementing is entitled to deference," and found that the Board's interpretation in the case at hand was "entirely reasonable." The appeals court affirmed the judgment of the lower court.

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 1‑6, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Maria Tabor at the ABA. (312) 988 5590 or mtabor@staff.abanet.org

Items reported here and in the ABA publications are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. The same is true of all commentary provided by contributors to the DIRT list. Accuracy of data and opinions expressed are the sole responsibility of the DIRT editor and are in no sense the publication of the ABA.

Parties posting messages to DIRT are posting to a source that is readily accessible by members of the general public, and should take that fact into account in evaluating confidentiality issues.

ABOUT DIRT:

DIRT is an Internet discussion group for serious real estate professionals. Message volume varies, but commonly runs 5 ‑ 10 messages per workday.

Daily Developments are posted every workday.

To subscribe to Dirt, send an e-mail to:

To:	ListServ@listserv.umkc.edu
Subject:	[Does not matter]
Text in body of message	Subscribe Dirt [your name]

To cancel your subscription to Dirt, send an e-mail to:

To:	ListServ@listserv.umkc.edu
Subject:	[Does not matter]
Text in body of message	Signoff Dirt

For information on other commands, send the message Help to the listserv address.

DIRT has an alternate, more extensive coverage that includes not only commercial and general real estate matters but also focuses specifically upon residential real estate matters. Because real estate brokers generally find this service more valuable, it is named "Brokerdirt." But residential specialist attorneys, title insurers, lenders and others interested in the residential market will want to subscribe to this alternative list. If you subscribe to Brokerdirt, it is not necessary also to subscribe to DIRT, as Brokerdirt carries all DIRT traffic in addition to the residential discussions.

To subscribe to Brokerdirt, send an e-mail to:

To:	ListServ@listserv.umkc.edu
Subject:	[Does not matter]
Text in body of message	Subscribe Brokerdirt [your name]

To cancel your subscription to Brokerdirt, send an e-mail to:

To:	ListServ@listserv.umkc.edu
Subject:	[Does not matter]
Text in body of message	Signoff Brokerdirt

DIRT is a service of the American Bar Association Section on Real Property, Probate & Trust Law and the University of Missouri, Kansas City, School of Law. Daily Developments are copyrighted by Patrick A. Randolph, Jr., Professor of Law, UMKC School of Law, but Professor Randolph grants permission for copying or distribution of Daily Developments for educational purposes, including professional continuing education, provided that no charge is imposed for such distribution and that appropriate credit is given to Professor Randolph, DIRT, and its sponsors.

DIRT has a WebPage at: http://www.umkc.edu/dirt/