MISC 11-454836

May 11, 2012


Long, J.




These two cases are in fact the same case, word for word identical, brought in this court twice. Each is a G.L. c. 40A, §17 appeal from the September 21, 2011 decision of the Easthampton Planning Board denying plaintiff Valley Community Development Corporation’s application for a special permit and site plan approval for “multifamily dwellings with 15% affordable housing units”. They differ only in the date they were “commenced” [Note 1] — October 19, 2011 (Case No. 11 MISC. 454836 (KCL)) and October 25, 2011 (Case No. 11 MISC. 455079 (KCL)) — and there are two of them because the first one was mailed to the wrong court address and believed lost. Neither was sent by registered or certified mail prior to the expiration of the twenty-day deadline in G.L. c. 40A, §17. Neither was received by the court within those twenty days. For that reason, on motion of the defendant, both are DISMISSED in their entirety, WITH PREJUDICE.

Facts and Discussion

The relevant facts are not in dispute. The Easthampton Planning Board’s Decision was filed with the Easthampton City Clerk on September 21, 2011, and plaintiff Valley Community Development Corporation prepared a complaint appealing from that Decision pursuant to G.L. c. 40A, §17. Notice of the action, along with a copy of the complaint, was given to the Town Clerk and received by her “within twenty days after the decision [was] filed in the office of the city or town clerk”, i.e. on or before October 11, 2011, in full compliance with the statute. The complaint itself, along with the entry fee and all other necessary papers, was mailed on October 4, 2011, first class postage pre-paid, addressed to the Land Court in Boston, on the assumption it would be received well in advance of October 11. That assumption proved incorrect. The envelope to the Land Court was mis-addressed (it was sent to 226 Causeway Street, from which the Land Court had moved some eleven months earlier), and did not arrive at the correct address (the Suffolk County Courthouse at Three Pemberton Square) until October 25.

In the meantime, unaware that his filing package had not been received by the court, Valley’s counsel proceeded to serve the defendants by certified mail, doing so properly and timely. His certificate of service was mailed to the Land Court on October 14, 2012, this time to the court’s correct address, and received on October 18. There was, of course, no docket number on the certificate and, as soon as it was received, a member of the Recorder’s staff telephoned Valley’s counsel to tell him there was no such case in the Land Court. Thus alerted, Valley’s counsel immediately over-nighted a new original of the complaint, the other necessary papers, and the entry fee, which were received by the Land Court on October 19 and became Case No. 11 MISC. 454836 (KCL). Valley’s original mailing ultimately arrived at the Land Court on October 25 and became Case No. 11 MISC. 455079 (KCL).

G.L. c. 40A, §17 requires that the action be brought in court “within twenty days after the decision has been filed in the office of the city or town clerk” — in this case, on or before October 11. [Note 2] That requirement is jurisdictional, Iodice v. Newton, 397 Mass. 329 , 333-334 (1986), and “policed in the strongest way,” Pierce v. Bd. of Appeals of Carver, 369 Mass. 804 , 808 (1976).

Cases are commenced by “(1) mailing to the clerk of the proper court by certified or registered mail a complaint and an entry fee prescribed by law, or (2) filing such complaint and an entry fee with such clerk.” [Note 3] Mass. R. Civ. P. 3. In this case, the mailings were sent by first class mail, postage pre-paid, not certified or registered mail. They thus did not “commence” the case. Id. See also Mulhall v. Sheraton Needham Hotel, 62 Mass. App. Ct. 1104 , 2004 WL 2238563 (Mass. App. Ct.), Memorandum and Order Pursuant to Rule 1:28 (Oct. 5, 2004) (“[W]here first-class mail is used, the suit is not commenced until the complaint and filing fee are received”). The case was not “commenced” until the court’s receipt of the filing package on October 19, 2011, and this was too late to comply with the twenty-day requirement of the statute — here, October 11. G.L. c. 40A, §17.

The board concedes that it was not prejudiced by the late commencement of the lawsuit. But this does not matter. A twenty-day commencement of a G.L. c. 40A, §17 lawsuit is jurisdictional, and any such action filed thereafter fails. Iodice, 397 Mass. at 334; Pierce, 369 Mass. at 808.


For the foregoing reasons, the above-captioned actions are DISMISSED in their entirety, WITH PREJUDICE. Judgments shall enter accordingly.



[Note 1] See Mass. R. Civ. P. 3, discussed more fully below.

[Note 2] More precisely, it requires that the action be brought within twenty days after the decision has been filed in the office of the city or town clerk where the person aggrieved had notice of the public hearing from which the Decision was made. G.L. c. 40A, §17. The deadline is ninety days from that filing date where the person aggrieved received defective notice, id. (see also Cappuccio v. Zoning Bd. of Appeals of Spencer, 398 Mass. 304 , 309-311 (1986)) and, in the case of a complete failure of notice of the hearing, ninety days after the abutter “has notice of the project to which he objects.” Kramer v. Zoning Bd. of Appeals of Somerville, 65 Mass. App. Ct. 186 , 193-94 (2005). See AJP Real Estate GbR LLC v. Planning Bd. of Edgartown, Appeals Ct. Case No. 11-P-628, Memorandum and Order Pursuant to Rule 1:28 (May 10, 2012) (summarizing deadlines)

[Note 3] There is a separate provision, not applicable here, for actions brought pursuant to G.L. c. 185 for registration or confirmation. Such actions are commenced “by filing a surveyor’s plan and complaint on a form furnished by the Land Court.” Mass. R. Civ. P. 3.