MISC 382313

December 31, 2008

Sands, J.


Plaintiffs filed their unverified Complaint on July 30, 2008, appealing, pursuant to the provisions of G. L. c. 40A, § 17, a decision of Defendant Board of Appeals of Swampscott (the "ZBA") which revoked a building permit issued to Plaintiffs by the Building Inspector of Swampscott. [Note 1] On October 15, 2008, the ZBA filed a Motion to Dismiss, together with supporting memorandum and Statement of Material Facts. A Case Management Conference was held on Ocotber 17, 2008, at which the parties waived oral argument on the Motion to Dismiss. On October 22, 2008, Plaintiffs filed their Opposition to Motion to Dismiss.

A defendant may challenge a complaint based on the court's lack of jurisdiction over the subject matter pursuant to Mass. R. Civ. P. 12(b)(1). Ginther v. Comm'r of Ins., 427 Mass. 319 , 322 (1998). "[T]he question of subject matter jurisdiction goes to the power of the court to hear and decide the matter . . . ." Id. at note 6. "In reviewing a dismissal under rule 12(b)(1) . . . we accept the factual allegations in the plaintiffs' complaint, as well as any favorable inferences reasonably drawn from them, as true." Id. at 322 (citing Nader v. Citron, 372 Mass. 96 , 98 (1977)). Additionally, "[w]ant of proper service apparent on the record may be raised on such a motion [to dismiss]." Farber v. Lubin, 327 Mass. 128 , 129 (1951); Mass. R. Civ. P. 12(b)(5).

This court finds that the following facts are not in dispute:

1. Plaintiffs own the property located at 53-53A Puritan Road, Swampscott, MA ("Locus").

2. On April 7, 2008, J. Alan Hezekiah, the Inspector of Buildings for the Town of Swampscott, issued a Building Permit (the "Building Permit") to Plaintiffs relative to Locus.

3. Lawrence P. Bithel ("Bithel"), an abutter to Locus, filed an appeal of the issuance of the Building Permit with the ZBA.

4. On May 28, 2008, the ZBA held a public hearing and voted to rescind the Building Permit (the "ZBA Decision").

5. The ZBA Decision dated June 25, 2008, was filed with the Swampscott Town Clerk (the "Town Clerk") on July 14, 2008.

6. Plaintiffs filed a Complaint with the Land Court on July 30, 2008, naming the seven members of the ZBA as Defendants. Plaintiffs served all seven members on that date. [Note 2]

7. On August 4, 2008, Plaintiffs filed a Motion to Amend the Complaint, together with Amended Complaint. [Note 3] On August 14, 2008, Plaintiffs again filed the same Motion to Amend the Complaint, together with Amended Complaint. [Note 4]

8. Plaintiffs filed a copy of the Amended Complaint with the Swampscott Building Department (the "Building Department") on August 6, 2008.

9. Susan J. Duplin, Town Clerk, became aware of the filing of the Amended Complaint with the Building Department on August 6, 2008, made a copy of the Amended Complaint, and affixed the Town Clerk's date stamp on the Amended Complaint on August 6, 2008.

10. On August 12, 2008, Plaintiffs filed with this court certified mail receipts for all seven members of the ZBA and return-receipt cards from all members except Daniel Doherty and Damon Seligson. On August 28, 2008, Plaintiffs filed a return-receipt card from Damon Seligson. [Note 5]

11. On September 16, 2008, Plaintiffs filed a Motion to Amend the Amended Complaint, adding a paragraph referencing the State Building Code.

12. On September 23, 2008, attorneys for the ZBA filed a Notice of Appearance.

13. Plaintiffs have not filed a notice of the appeal, or a copy of either the Complaint or the Amended Complaint, with the Town Clerk.


The sole issue before this court is whether Plaintiffs' appeal of the ZBA Decision was timely. G. L. c. 40A, § 17 states, in part:

Any person aggrieved by a decision of the board of appeals . . . whether or not previously a party to the proceeding . . . may appeal to the land court department . . . 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 . . . .

If the complaint is filed by someone other than the original applicant, appellant or petitioner, such original applicant, appellant, or petitioner and all members of the board of appeals or special permit granting authority shall be named as parties defendant with their addresses. 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.

Plaintiffs filed their Complaint with the Land Court on July 30, 2008, sixteen days after the ZBA Decision had been filed with the Town Clerk, and their Amended Complaint with the Land Court on August 4, 2008, twenty-one days after the ZBA Decision had been filed with the Town Clerk. Notice of the action, however, was not given to the Town Clerk within the statutory twenty-day period, nor has such notice been given to date. The Town Clerk, on her own, became aware of the filing of the Complaint and Amended Complaint on August 6, 2008, twenty-three days after the filing of the ZBA Decision with the Town Clerk, and date stamped a copy of the Amended Complaint.

The ZBA argues that Plaintiffs failed to comply with the notice requirements of G. L. c. 40A, § 17, with respect to both the Complaint and the Amended Complaint, and that such filing requirements are strictly enforced. Even though the Complaint was timely filed, Plaintiffs have not to date filed notice of the appeal with the Town Clerk, and the Town Clerk did not become aware of the filing of the appeal until twenty-three days after the ZBA Decision was filed with the Town Clerk. The ZBA cites Pierce v. Bd. of Appeals of Carver, 369 Mass. 804 (1976), which indicates that timely commencement of an action in court and notice of the commencement of the court action being timely filed with the city or town clerk are critical conditions to maintaining the action. Pierce states that "[p]assing from these dual requirements of the statute, policed in the strongest way, we go to the opposite extreme and find that a number of other lapses from the statute have been dealt with leniently, without the exaction of terms from the offending plaintiff." Id. at 808. See also Konover Mgmt. Corp. v. Planning Bd. of Auburn, 32 Mass. App. Ct. 319 , 324-25 (1992) ("The key element of these decisions relaxing the rigors of strict compliance with the zoning appeal statute 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.").

The rationale for the critical emphasis on the notice to the town clerk was stated as, "[t]his goes on the common sense basis that a record in the clerk's office should be available to furnish 'constructive' notice to interested persons that the decision of the board of appeals has been challenged and may be overturned." Pierce, 369 Mass. at 808. See also Bingham v. City Council of Fitchburg, 52 Mass. App. Ct. 566 , 568 (2001) ("if the required notice was not received within twenty days, the appeal should be dismissed"); Konover, 32 Mass. App. Ct. at 322-23 ("[w]e recognize that receipt 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,' and given 'strict enforcement.'"). [Note 6]

Plaintiffs argue that G. L. c. 40A, § 17 provides an alternative process for judicial review where the party bringing the action (Plaintiffs) is not the original applicant before the ZBA (Bithel), and that this alternative process does not require a filing of notice of the action with the Town Clerk. Plaintiffs' argument fails. The second paragraph of G. L. c. 40A, § 17 deals with alternative service of process, and not an alternative requirement for filing of notice with the town clerk. Mass. R. Civ. P. 4 establishes service of process requirements for filing an appeal, and personal service is covered by section (d), which begins: "The summons and a copy of the complaint shall be served together. The plaintiff shall furnish the person making service with such copies as are necessary. Service shall be made as follows:" Subsection (d)(5) continues:

Upon an authority, board, committee, or similar entity, subject to suit under a common name, by delivering a copy of the summons and of the complaint to the chairman or other chief executive officer; or by leaving such copies at the office of the said entity with the person then in charge thereof; or by mailing such copies to such officer by registered or certified mail.

The second paragraph of G. L. c. 40A, § 17 provides "[t]o avoid delay in the proceedings, instead of the usual service of process," for service to be made by serving all defendants, including the individual board members, within fourteen days of the filing of the complaint instead of the ninety days allowed by Mass. R. Civ. P. 4(j). This alternate service of process described in the second paragraph of G. L. c. 40A, § 17 does not supplant the mandatory statutory requirement that notice of the complaint be timely filed with the Town Clerk so as to give notice to the world. As a result, I find that Plaintiffs did not meet such mandatory statutory requirement.

If Plaintiffs had provided proper notice to the Town Clerk, this court would next review the procedural defects in Plaintiffs' service and "consider how far they have interfered with the accomplishment of the purposes implicit in the statutory scheme and to what extent the other side can justifiably claim prejudice." Pierce, 369 Mass. at 805 (citing Shulte v. Dir. of the Div. of Employment Sec., 369 Mass. 74 , 79-80 (1975)). "After such an assessment, the judge is to decide whether the appeal should go forward without more, or on terms, or fail altogether." Id. Here, Plaintiffs have failed to follow the requirements of the statute relative to the amended service of process in two respects. First, the statute requires service upon the original applicant (Bithel), which did not occur within the fourteen days required by the statute. [Note 7] Second, the statute requires that Plaintiffs file with this court an affidavit that proper notice has been given to all defendants within twenty-one days after entry of the Complaint, and states that "[i]f no such affidavit is filed within such time the complaint shall be dismissed." [Note 8] Plaintiffs have not to date filed the required affidavit. [Note 9] However, because Plaintiffs failed to notify the Town Clerk of their lawsuit within twenty days, this court need not investigate whether Plaintiffs' procedural errors warrant dismissal of this matter.

As a result of the foregoing, I ALLOW the ZBA's Motion to Dismiss Plaintiffs' Complaint.

Judgment to enter accordingly.

Alexander H. Sands, III


Dated: December 31, 2008


[Note 1] Plaintiffs filed a Motion to Amend Complaint on August 4, 2008, and the same motion was filed again on August 14, 2008. This motion was never acted on by this court but is allowed as of right. Plaintiffs filed a Motion to Amend the Amended Complaint on September 16, 2008, which motion was opposed by the ZBA on October 15, 2008, and by Bithel (hereinafter defined) on October 17, 2008. This motion has not been acted upon. Plaintiffs also filed a Motion to Add One Defendant, namely Peter C. McCarriston (the Swampscott Plumbing and Gas Inspector), and a Motion to Strike Appearance of Counsel (for Bithel), on October 15, 2008. On October 17, 2008, Bithel filed an Opposition to the motion to dismiss the appearance of Bithel's attorney, and on October 23, 2008, the ZBA filed an opposition to the motion to add McCarriston as a Defendant. Neither of these motions have been acted upon.

[Note 2] The Complaint defined Linda Paster (Secretary of the ZBA) and Lawrence P. Bithel (abutter) as parties in the body of the Complaint but they were not listed in the caption and were not served. On October 9, 2008, an attorney for Bithel filed a Notice of Appearance. On October 22, 2008, Bithel filed a Motion to Confirm that Lawrence P. Bithel is a Party Defendant. Lawrence P. Bithel was incorrectly named in the Complaint as Lawrence P. Bethell.

[Note 3] This motion was filed under the wrong case number.

[Note 4] The Amended Complaint added information relative to developments in the evolution of heating processes (relating to a 1970 Final Decree relative to Locus issued by the Essex Superior Court).

[Note 5] By letter dated August 12, 2008, and filed with this court on August 14, 2008, Plaintiffs stated that "the original Complaint . . . had been served upon all the Defendants in accordance with the statute, Sec 17 of Chap. [40A] m.g.l".

[Note 6] The ZBA also argues that the new paragraphs of the Amended Complaint be dismissed because they seek the removal of a permit restriction on Locus which was established by a 1970 order of the Essex Superior Court, which is beyond the jurisdiction of the Land Court. Based on the outcome of this decision, this court need not address this issue.

[Note 7] In fact, to this date, Plaintiffs still argue that Bithel, even though named as a Defendant in the Complaint, should not be a party to this action.

[Note 8] Despite this warning, the failure to file an affidavit is not necessarily a fatal error. Shaughnessy v. Bd. of Appeals of Lexington, 357 Mass. 9 , 14 (1970) (concluding that dismissal is appropriate if the failure to file the affidavit results in prejudice).

[Note 9] Plaintiffs filed a letter with this court dated August 14, 2008, stating that service required by the statute was made, but the letter was not in affidavit form and incorrectly stated that proper service was made when it was not (Bithel had not been served).