Opinion
14-P-775
06-23-2015
INA BROTHER, trustee v. ZONING BOARD OF APPEALS OF BROOKLINE & 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
After the defendant zoning board of appeals of Brookline (board) granted a special permit to the operators of a daycare business, the plaintiff trust (which owns abutting property) appealed. A judge of the Superior Court dismissed the complaint and denied the plaintiff's motion to amend the complaint. The plaintiff appeals, and we affirm.
The defendants Jay Salvia and Steven Geller (the defendants), who operate a daycare business, sought permission to build a ramp from the ground level to the second story of a building located at 138 Harvard Street. The building commissioner denied the application and the defendants appealed to the board. On September 13, 2013, in a written decision filed with the town clerk, the board reversed the building commissioner and granted the defendants a special permit to build the ramp. On October 3, 2013, the plaintiff filed its complaint in the Superior Court.
The zoning board of appeals of Brookline did not file a brief.
Also on October 3, 2013, the plaintiff sent to the town clerk letter notification, pursuant to G. L. c. 40A, §§ 8 and 15, of its appeal from a September 9, 2013, decision by the building commissioner issuing two building permits for the purpose of changing the use of the property. The letter contained a reference to the September 13 zoning decision, "currently the subject of a zoning appeal brought by NJB Realty Trust in the Norfolk Superior Court pursuant to [G. L. c. ] 40A, § 17."
The complaint stated that the board had filed its written decision with the town clerk on September 13, 2013; attached to the complaint was a certified copy of that decision. On October 4, 2013, the day after the complaint was filed, the plaintiff served on the town clerk a copy of the complaint, along with a certified copy of the board's decision. The complaint named only three of the six members of the board.
On October 29, 2013, the defendants filed a motion to dismiss, asserting that the court lacked jurisdiction because the plaintiff had failed to comply with the statutory notice requirements of G. L. c. 40A, § 17, by notifying the town clerk of the complaint within twenty days of the board's decision. Attached to the motion was an affidavit from the town clerk, stating under the pains and penalties of perjury that the town clerk's office was "not served with notice of the [plaintiff's Superior Court action] nor was [it] served with a copy of plaintiff's [c]omplaint within twenty days of September 13, 2013."
General Laws c. 40A, § 17, provides in pertinent part: "Any person aggrieved by a decision of the board of appeals . . . may appeal to the . . . superior court department in which the land concerned is situated . . . by bringing an action within twenty days after the decision has been filed in the office of the city or town clerk. . . . Notice of the action with a copy of the complaint shall be given to such city or town clerk so as to be received within such twenty days. . . . To avoid delay in the proceedings, instead of the usual service of process, the plaintiff shall within fourteen days after the filing of the complaint, send written notice thereof, with a copy of the complaint, by delivery or certified mail to all defendants, including the members of the board of appeals or special permit granting authority and shall within twenty-one days after the entry of the complaint file with the clerk of the court an affidavit that such notice has been given. If no such affidavit is filed within such time the complaint shall be dismissed." (Emphases added.)
In addition, the defendants alleged that the plaintiff had failed to name all of the members of the board in its complaint. On January 16, 2014, more than ninety days after filing the complaint, the plaintiff filed a motion to amend it by adding the previously unnamed board members. After a hearing on both motions, the judge allowed the motion to dismiss and denied the plaintiff's motion to amend the complaint.
"We review the allowance of a motion to dismiss de novo, accepting as true all well-pleaded facts in the complaint and favorable inferences drawn therefrom. We also may take into account the materials attached thereto." Cook v. Patient Edu, LLC, 465 Mass. 548, 549 (2013). "[R]eceipt of notice by the town clerk is a jurisdictional requisite for an action under G. L. c. 40A, § 17, which the courts have 'policed in the strongest way.'" Konover Mgmt. Corp. v. Planning Bd. of Auburn, 32 Mass. App. Ct. 319, 322-323 (1992), quoting from Pierce v. Board of Appeals of Carver, 369 Mass. 804, 808 (1976) (citation omitted). The timely notice of appeal is an essential condition, serving the statutory purpose of providing "interested third persons at least constructive notice of the appeal." Konover, supra at 323-324, quoting from Costello v. Board of Appeals of Lexington, 3 Mass. App. Ct. 441, 443 (1975).
In Konover, the court explained that the requirements for providing notice of such an action have been treated less rigidly over time. However, the key element of statutory compliance is "that within the mandatory twenty-day period the clerk is actually notified that an appeal -- i.e., a complaint has in fact been timely filed." Konover, supra at 324-325, quoting from Carr v. Board of Appeals of Saugus, 361 Mass. 361, 363 (1972). See Uxbridge v. Griff, 68 Mass. App. Ct. 174, 175 n.3 (2007) ("[The plaintiff] failed to file a notice of the action with the town clerk as required by G. L. c. 40A, § 17. Failure to comply with this jurisdictional requirement means that the Superior Court lacked jurisdiction over the zoning appeal"). Here, simply, the clerk did not receive notice within the required period.
The plaintiff claims that its October 3 letter notifying the town clerk of its appeal of the building commissioner's September 9, 2013, decision, pursuant to G. L. c. 40A, §§ 8 and 15, served as its written § 17 notice of the board's decision. We disagree. Both in caption and in substance, that letter addressed a different appeal to a different body (the board) of a different decision made by a different party (the building commissioner). The reference to the present action is, as the defendants argue, fleeting, and cannot be said to serve as sufficient notice of it to the town clerk. In addition, the cases cited by the plaintiff "are easily distinguished, as the plaintiffs in those cases had met the jurisdictional prerequisite by filing a notice with the town or city clerk." Uxbridge, supra.
On the second page of the letter, it states, "Furthermore, because the [b]oard of [a]ppeals' decision of September 13th is currently the subject of a zoning appeal brought by NJB Realty Trust in the Norfolk Superior Court pursuant to M.G.L. ch.40A, § 17 the [b]uilding [c]ommissioner should not have issued BP-2013-1339."
The plaintiff's argument that it was not provided with timely notice of the board's decision is contradicted by the fact that it filed its complaint in Superior Court, appealing the decision, within the requisite time period. The plaintiff also admits that its counsel knew of the board's decision no later than September 20, 2013.
Accordingly, accepting as true the factual allegations in the plaintiff's complaint, as we must, we agree that the Superior Court lacked jurisdiction over the plaintiff's appeal of the board's decision and that the complaint was properly dismissed. See Sullivan v. Chief Justice for Admin. & Mgmt. of the Trial Ct., 448 Mass. 15, 20 (2006). Nor did the judge abuse his discretion in denying the plaintiff's motion to amend the complaint, as he had no jurisdiction to hear it.
For this reason, we need not reach the issue whether the plaintiff's failure to serve three of the board's six members until more than ninety days after the board's decision would have been, by itself, fatal to its case.
We have carefully considered the remaining issues raised in the plaintiff's brief and find them to be without merit.
Judgment affirmed.
Order denying motion to amend complaint affirmed.
By the Court (Katzmann, Hanlon & Maldonado, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: June 23, 2015.