LEONARD H. GOLDER v. MICHELLE SHOEMAKER, EDWARD TAMUZZER, CHARLES A. BARNEY, BRUCE E. FLETCHER, and JOHN CLAYTON, JR., As They Are Members of the Zoning Board of Appeals of the Town of Stow

Before me is the defendants’ motion to dismiss, based on the failure of the plaintiff to comply with the statutory prerequisites concerning the filing of notice of this judicial zoning appeal. I agree with the defendants’ position, allow their motion, and direct entry of a judgment dismissing this complaint.

This is an action under G.L. c. 40A, §17, appealing from a decision issued by the Zoning Board of Appeals of Stow (“Board”), whose members are, pursuant to that statute, defendants. Plaintiff Leonard H. Golder filed this action in this court on July 3, 2009.

The Board decision from which plaintiff appeals (“Decision”) was filed by the Board in the office of the clerk of the town on June 15, 2009. In the Decision, the Board granted the application by the town’s recreation commission for a variance from the requirements of Section 7.7.4.1 of the municipal zoning bylaw, as they relate to a municipal recreation facility at 60 Old Bolton Road. The Decision varied the bylaw’s requirement for six foot high opaque screening to be installed along Old Bolton Road to screen a parking area from neighboring residential parcels.

The plaintiff filed this judicial appeal within twenty days of the filing of the Decision with the municipal clerk, as the statute requires. G.L. c. 40A, §17 insists that the plaintiff must bring the action “within twenty days of after the [board] decision has been filed in the office of the city of clerk.” He did so.

Defendants’ September 3, 2009 motion to dismiss, however, rests on a different requirement of the statute. The motion shows that plaintiff failed to comply with provision in section 17 that says: “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.” The defendants show that the plaintiff did not give notice of his judicial appeal with a copy of the complaint to the town clerk until August 17, 2009. The record defendants have submitted in support of their dismissal motion shows that no notice of the appeal, and no copy of the complaint filed with this court, was filed with the town clerk within twenty days of the filing there of the Board’s Decision on June 15, 2009.

These facts are uncontested. This issue arose at or before the initial case management conference the court held with counsel for the parties (plaintiff is a lawyer, and represents himself) on August 24, 2009. The court instructed defendants to file a motion to dismiss on this ground, and gave plaintiff an opportunity to respond to the motion to dismiss, and that has been done. At the conference, the court advised counsel that it would decide the motion to dismiss on the papers submitted without further hearing unless ordered otherwise. Plaintiff nowhere in his opposition contends, much less shows, that he filed notice of this appeal or a copy of the complaint in this action any sooner than August 17.

On these undisputed facts, I determine that dismissal is required. The words of the statute, and the cases applying it leave me with no conclusion other than that plaintiff’s failure to file notice of this action with the municipal clerk is a fatal jurisdictional problem for him. “Receipt of notice by a city clerk is a prerequisite for an action under G.L. c. 40A, §17, which the courts have ‘policed in the strongest way’ and given ‘strict enforcement.’ Konover Mgmt. Corp. v. Planning Bd. of Auburn, 32 Mass. App. Ct. 319 , 322-323 (1992). Without doubt, some of the statutory filing and notice requirements may, in certain instances, be complied with out of time without jeopardizing a plaintiff’s fundamental right to appeal. That is true, for example, of the failure to “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,” another step not taken timely by plaintiff in the case now before me. Lapses of that sort, having to do with completion of service on board members and the provision of an affidavit of that fact, can, on appropriate showing of lack of prejudice, be overcome without there being, as a jurisdictional matter, a loss of the court’s ability to hear the appeal. See, e.g., Pierce v. Board of Appeals of Carver, 369 Mass. 804 (1976). If that were the only type of untimeliness on plaintiff’s part, further proceedings would be had by the court to deal with the question.

But the fundamental requirement of filing notice of the action and a copy of the complaint with the clerk is of a higher order. It is a jurisdictional predicate to going forward with appeal. It cannot be waived. It cannot be relaxed because it resulted in no prejudice, or because the timing of it came reasonably close to the statute’s deadline. It is the court’s duty to dismiss actions over which it lacks this sort of jurisdiction whenever that fact is made to appear. Mass. R. Civ. P. 12(h)(3). This obligation exists no matter how meritorious the plaintiff’s appeal might be.

In Uxbridge v. Griff, 68 Mass. App. Ct. 174 , 175 at n. 3 (2007), the Appeals Court said:

Griff 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 [trial court] lacked jurisdiction over the zoning appeal. ... Decisions cited by Griff are easily distinguished, as the plaintiffs in those cases had met the jurisdictional prerequisite by filing a notice with the town or city clerk. ... The issues addressed in those cases related to other procedural lapses.

The court held that “[w]e agree with the town that Griff’s appeal of the action of the board was not perfected and must be dismissed.” 68 Mass. App. Ct. at 175.

Golder’s written opposition does not controvert the delay in filing with the town clerk. There is only one argument he advances--beyond an appeal for leniency (something the jurisdictional nature of the problem does not countenance) and an emphasis on the merits of his attack on the Decision (something the court also cannot reach)--which requires a response. Golder points out that his complaint is in three counts, the first under G.L. c. 40A, §17, the second for declaration, and the third seeking an injunction. He contends that dismissal is unwarranted as to these latter two counts.

Review of the complaint, however, makes clear that these two counts are entirely bound up with the first, the judicial appeal from the Decision under G.L. c. 40A, §17. In his second count, there is no doubt that the entire controversy as to which declaration is sought has to do with the Decision. Plaintiff alleges that he “submitted overwhelming evidence before the ZBA that granting this Special Permit would be in error.” (para. 24). He sets up his request for declaratory judgment by alleging that “[t]he ZBA in its decision erred as a matter of law in granting the Special Permit to eliminate the requirement the 6 foot high stockade fence on the north side of the fields facing Old Bolton Road.” He seeks relief in the form of a judgment declaring that he has rights “to keep the requirement of the 6 foot high stockade fence facing Old Bolton Road intact.” There is nothing more in this Count II than a request for judgment that the Decision, relaxing the fence requirement, was issued by the Board in error, and should be declared wrong. The entire second count is the functional equivalent of an appeal under G.L. c. 40A, §17, and seeks the same relief plaintiff would have liked to have had under that statute, which provides that: “The court shall hear all evidence pertinent to the authority of the board... and determine the facts, and, upon the facts as so determined, annul such decision if found to exceed the authority of such board... or make such other decree as justice and equity may require.” Plaintiff may not use the declaratory judgment statute to salvage a zoning appeal which has fatal jurisdictional failings.

So too with the third count, which seeks an injunction compelling the Board to require the “6 foot high stockade fence on the north and west sides of the fields and assure that said north portion of the fence be constructed.” Count III rests on the allegation that “[t]he ZBA in its decision has failed to comply with the requirements of the Bylaw by granting a special permit to eliminate the requirement the 6 foot high stockade fence that abuts one side of the athletic field...,” and that “[p]laintiff is aggrieved by the decision.” Count III is, like Count II, entirely focused on the Board’s Decision, and seeks its modification or annulment on grounds that the Board acted in error in issuing the Decision. The relief sought in Count III is indistinguishable from that which would follow from a successful G.L. 40A, §17 appeal from the Decision. That avenue is closed to plaintiff, given the jurisdictional problem he has, and Count III (no matter how indulgent a reading the court gives it) furnishes no reason to allow plaintiff to proceed to the same result under a different heading.

I will direct entry of a judgment dismissing the complaint, as to all counts, with prejudice.

Judgment accordingly.

Gordon H. Piper

Justice

Dated: October 7, 2009