Sixth Realty Trust (the trust) appeals from a Land Court summary judgment dismissing with prejudice the trust's complaint for mandamus and declaratory relief. The sole issue on appeal, as framed by the trust, is whether it is entitled to a certificate of constructive approval, under G. L. c. 40A, § 15, of its 2016 request that the zoning board of appeals of Wilmington (ZBA) modify what the trust characterizes as a "variance" the ZBA had issued in 2008 regarding the trust's property known as 12 Polk Street in Wilmington (town). We agree with the judge that the trust is not entitled to such a certificate and therefore affirm, with one minor modification.
Background. We base our recitation of the pertinent facts largely on the summary judgment decision. The town has an "official map" under G. L. c. 41, § 81E, which affects the issuance of building permits. The trust wished to build on its property at 12 Polk Street,4 but that street does not appear on the official map. In 2008, the trust, through its trustee, applied to the ZBA, among other things, for relief under G. L. c. 41, § 81Y, from compliance with the official map requirement.
The ZBA received an opinion from town counsel on August 12, 2008, concluding that even if the ZBA granted such relief, no building permit could issue until a way providing frontage for 12 Polk Street was constructed with the approval of the town planning board under G. L. c. 41, § 81G.5 Town counsel cited a Land Court decision from 2000 in which the town and the ZBA were defendants, and in which a judge concluded that the ZBA's grant of relief under § 81Y"does not obviate compliance with [§ ]81G." On August 13, 2008, the ZBA issued a decision that, among other things, granted the trust relief from the official map under § 81Y, with the understanding "that the applicant must still comply with the requirements of [§ ]81G, as described in Town Counsel's Advisory Opinion."6
The trustee appealed other aspects of the ZBA's decision, but not the inclusion of the § 81G provision, to the Land Court. In 2011, a judge affirmed the ZBA decision and, on the trustee's appeal, a panel of this court affirmed the judgment in an unpublished memorandum and order issued pursuant to our rule 1:28. Nelson v. Wilmington, 81 Mass. App. Ct. 1133 (2012).
On June 30, 2016, the trust, through its trustee, filed with the ZBA an application requesting, among other things, to "remove [the § ]81G restriction from [the] variance granted [in] 2008." The following day, the secretary to the ZBA returned the application and the filing fee to the trustee, stating that "[§ ]81G is not [within] the jurisdiction of the [ZBA]."
After 100 days had passed, the trustee filed with the town clerk, on October 14, 2016, a notice of constructive approval under G. L. c. 40A, § 15.7 On November 2, 2016, the town clerk notified the trustee that no constructive approval had occurred because the application was not within the ZBA's jurisdiction and had never been accepted for filing. Nevertheless, on November 22, 2016, the trustee submitted to the town clerk a certificate of constructive approval with a request that it be executed and returned to the trustee.
The town clerk evidently did not execute or return the certificate, because the trust then filed suit in the Land Court seeking mandamus and declaratory relief aimed at compelling her to do so. The judge ordered summary judgment dismissing the complaint, and this appeal followed.
Discussion. We agree, albeit on grounds different from those cited by the judge, that no constructive approval occurred under G. L. c. 40A, § 15. Quite simply, there was never any effective filing so as to trigger the constructive approval mechanism. The trust's filing was not accepted; instead, the ZBA secretary returned the trust's application and filing fee, stating that the ZBA lacked jurisdiction over the application.8
We recognize that the purpose of the constructive approval mechanism is to "[obligate] a board of appeals to act on an appeal within the statutory time period, otherwise the appellant prevails by default." Capone v. Zoning Bd. of Appeals of Fitchburg, 389 Mass. 617, 622 (1983), quoting from Rinaudo v. Zoning Bd. of Appeals of Plymouth, 383 Mass. 885, 885 (1981). Here, however, the trust was informed, within days after filing its application, that the ZBA believed it lacked jurisdiction and was returning the application and filing fee to the trust. This belief, moreover, had a reasonable legal basis, which was known to the trust because of its prior dealings with the ZBA on the issue. The trust could not reasonably have thought that any further action from the ZBA was forthcoming.
If the trust disagreed with the ZBA's position, it could have promptly sought mandamus relief to compel the ZBA to accept the application for filing and could thereby have obtained an early judicial determination of whether the ZBA's position was correct. It is incongruous at best for the trust, instead, to have done nothing for 100 days and then to attempt to take advantage of a statute meant to incentivize ZBAs to make prompt decisions.
Conclusion. Because the application was not constructively approved, the town clerk had no duty to execute any constructive approval certificate; therefore the judgment dismissing the trust's mandamus claim was correct. As to the declaratory judgment claim, "[w]hen an action for declaratory relief is properly brought and relief is denied on the merits, the action should not be dismissed. ... The rights of the parties should be declared." Attorney Gen. v. Kenco Optics, Inc., 369 Mass. 412, 418 (1976). We therefore order that the judgment be modified to include, instead of a dismissal of the declaratory judgment claim (count V of the complaint), a declaration that no constructive approval has occurred of the trust's application to remove the provision regarding G. L. c. 41, § 81G, from the ZBA's 2008 grant of relief under c. 41, § 81Y, and that the trust is not entitled to any certificate of such constructive approval. As so modified, the judgment is affirmed.
So ordered.
As so modified, the judgment is affirmed.