MICHAEL SWEENEY and MARILYN SWEENEY vs. JAMES FAULKNER, EDUARDO PONTORIERO, OWEN NEVILLE, JOHN MARKIEWICZ, and NANCY FILLMORE, as members of the BOXBOROUGH PLANNING BOARD, FLAGG HILL ROAD, LLC, DOUGLAS V. TREFRY, and HARVEY W. TREFRY.

Plaintiffs Michael Sweeney (“Michael”) and Marilyn Sweeney (together, “Plaintiffs”) filed their unverified Complaint (the “Complaint”) on October 15, 2013, pursuant to G. L. c. 40A, § 17, appealing a decision (the “Planning Board Decision”) of Defendant Boxborough Planning Board (the “Planning Board”) which approved a Common Driveway Special Permit (the “Special Permit”) with respect to a common driveway to serve three proposed single family house lots (the “Project”) relative to property owned by Defendants Douglas V. Trefry and Harvey W. Trefry (the “Trefrys”) and located at 480 Flagg Hill Road, Boxborough, Massachusetts (“Locus”). Defendants Planning Board, the Trefrys, and Flagg Hill Road, LLC (“Flagg Hill”) (together, “Defendants”) filed a Joint Motion to Dismiss, together with supporting memorandum, Statement of Facts, and Affidavit of Elizabeth Markiewicz, on October 23, 2013. A case management conference was held on November 18, 2013. Plaintiffs filed their Opposition to Motion to Dismiss on December 3, 2013, together with supporting memorandum, Statement of Additional Facts, and Affidavits of Michael Sweeney and Keith L. Miller. [Note 1] A hearing was held on the Motion to Dismiss on January 8, 2014, and the matter was taken under advisement.

In reviewing a Motion to Dismiss, courts examine the complaint or counterclaim to determine if, viewing its allegations and inferences broadly and in the non-moving party’s favor, it appears beyond doubt that the non-moving party can prove no set of facts in support of their claim entitling them to relief. Boston Water & Sewer Comm'n v. Commonwealth, 64 Mass. App. Ct. 611 , 614 (2005), citing Hobson v. McLean Hosp. Corp., 402 Mass. 413 , 415 (1988).

Both parties have submitted affidavits and other evidence with their motions, oppositions and replies, which go beyond the scope of a motion to dismiss. Case law, however, has held that

a rule 12(b)(1) motion supported by affidavits places the burden on the plaintiff to prove jurisdictional facts . . . a judge may consider documents and other materials outside the pleadings that are not affidavits when ruling on a rule 12(b)(1) motion. By supporting the motion with such extra-pleadings material, the defendants contest the accuracy (rather than the sufficiency) of the jurisdictional facts pleaded by the plaintiff. Such a “factual challenge” to subject matter jurisdiction gives no presumptive weight to the averments in the plaintiff’s complaint, and requires the court to address the merits of the jurisdictional claim by resolving the factual disputes between the plaintiff and the defendants. Callahan v. First Congregational Church of Haverhill, 441 Mass. 699 , 710 (2004).

I find that the following material facts are not in dispute:

1. Flagg Hill (the proposed developer of the Project) filed an application for the Special Permit for Locus with the Planning Board on July 19, 2013. Locus is a twenty-two acre parcel of land. The Planning Board held a public hearing on the Special Permit on August 12, September 16 and September 24, 2013.

2. The Planning Board voted to approve the Special Permit (the “Planning Board Decision”) on September 24, 2013. The Planning Board Decision included a condition stating that the applicant “shall receive an Order of Conditions, or Superseding Order of Conditions, issued under the Wetlands Protection Act” prior to construction of the driveway. On the same day, the Planning Board Decision was filed with the Boxborough Town Clerk (the “Town Clerk”).

3. Plaintiffs filed the Complaint with the Land Court on October 15, 2013 (October 14, 2013, was a holiday). Plaintiffs own property (“Plaintiff Property”) which abuts Locus.

4. Wetlands, including bordering vegetated wetlands, two vernal pools and a stream, are located on both Locus and Plaintiff Property.

5. The Boxborough Town Clerk’s office (the “Town Clerk Office”) closed at 2 PM on Tuesday, October 15, 2013. The office hours of the Town Clerk were posted on the Town website and in the Town Hall. Prior to 2 PM on October 15, 2013, Michael appeared at the Town Hall and told the Town Planner that he intended to file an appeal of the Planning Board Decision and asked her for a form. He was told that there was no form. Later in the day, Michael met with Elizabeth Markiewicz, the Town Clerk (“Markiewicz”), told her he intended to file an appeal of the Planning Board Decision, and requested a certified copy of the Planning Board Decision. She gave him such copy of the Planning Board Decision. Such copy contained a certification signed by Markiewicz that she had not received any appeals prior to the expiration of twenty days from the issuance of the Planning Board Decision. Markiewicz left the Town Hall sometime between 2 PM and 3 PM.

6. At 3:52 PM on Tuesday, October 15, 2013, Plaintiffs faxed to the Town Clerk Office a copy of the Complaint, Land Court cover sheet, and letter addressed to Markiewicz (together, the “Notice”). Markiewicz did not see or receive, or was otherwise notified of, “the documents [in the Notice]” until Wednesday, October 16, 2013 at approximately 9 AM.

7. On November 13, 2013, the Boxborough Conservation Commission issued an Order of Conditions approving the Project. On November 26, 2013, Plaintiffs filed a Request for a Superseding Order of Conditions with the Department of Environmental Protection.

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Defendants argue that this court lacks jurisdiction over this case (Mass. R. Civ. P. 12(b)(1)) because Plaintiffs failed to comply with the filing and notification requirements set forth in G. L. c. 40A, § 17. Plaintiffs argue that they fully complied with the statute. Defendants also argue that Plaintiffs failed to state a claim upon which relief can be granted (Mass. R. Civ. P. 12(b)(6)) because Plaintiffs argue that wetlands are impacted and the Planning Board does not have jurisdiction over wetlands. Plaintiffs argue that the Planning Board has jurisdiction.

G. L. c. 40A, § 17 states, in relevant part,

Any person aggrieved by a decision of the board of appeals or any special permit granting authority . . . may appeal to the land court department, 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.

Plaintiffs cite two cases where notice of appeal was not timely filed in the clerk’s office but was accepted as timely filed. In Garfield v. Board of Appeals of Rockport, 356 Mass. 37 (1969), the town clerk’s office closed at 4 PM, but the notice was delivered to the clerk’s home at 6:35 PM on the twentieth day. The plaintiff argued that the statute required that the notice “be given to such city or town clerk so as to be received within such twenty days,” and that the notice was given to the town clerk on the twentieth day (at her home); there was no statutory requirement that the notice be filed in the office of the town clerk. The Supreme Judicial Court agreed. In Konover Management Corp. v. Planning Board of Auburn, 32 Mass. App. Ct. 319 (1992), the town clerk was not served with the notice within the twenty day appeal period. However, the town planner’s office was served with the complaint long before the twenty day appeal period had run, and the town planner’s office notified both the assistant town clerk and the town clerk prior to the expiration of the twenty day appeal period that the appeal had been filed, and showed the town clerk a copy of the complaint. The Appeals Court held that

[t]he key element of [] 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 statutory purpose is then served, because ‘interested third parties [can] be forewarned [by the clerk] that the zoning status of the land is still in question’ . . . [Garfield] makes it clear that it is the state of the clerk’s knowledge, not the physical location of the papers, that controls. [Note 2]

A more recent Appeals Court case, Bingham v. City Council of Fitchburg, 52 Mass. App. Ct. 566 (2001) went the other way. In Bingham, notice of appeal was not timely given to the city clerk’s office, which closed at 4:30 PM on the twentieth day, but was delivered to the mayor’s office, which date-stamped the notice papers at 4:45 PM. The mayor did not deliver the notice to the city clerk’s office until the next day. The city clerk was not aware of the notice of appeal until some time in the morning of the twenty-first day. The Appeals Court held that

although the notice of action and complaint were given to the mayor only fifteen minutes after the clerk’s office closed, neither the clerk nor anyone in the clerk’s office was aware that an appeal had been commenced until, at best, the following morning. By this time, counsel for [the developer] had already been provided with certification that no appeal had been filed within the twenty-day period. Thus, it is evident that the intended purpose of providing third persons with notice of the appeal had not been accomplished within the time limited.

In the case at bar, the Town Clerk Office closed at 2 PM on October 15, 2013, and the Notice had not been filed there. At 3:52 PM, the Notice was sent to the Town Clerk Office. There is no evidence that the Notice was seen by anyone on October 15. Markiewicz’s affidavit states that she “did not see or receive, nor was [she] otherwise notified of, [the Notice] until approximately 9:00 a.m. on the morning of Wednesday, October 16, 2013.” Unfortunately for Plaintiffs, the facts of this case do not warrant a timely filing of the Notice. A motion to dismiss supported by affidavits places the burden on Plaintiffs to prove jurisdictional facts. See Callahan, 441 Mass. at 710. Plaintiffs’ argument that Michael told the Town Planner and Mackiewicz that he intended to file the Complaint is not evidence that the Complaint was filed. Such argument does not meet the criteria that the Town Clerk must be “made aware” that a notice of appeal had been filed. Moreover, the facts indicate that Mackiewicz did not have knowledge of the Notice on October 15, 2013 (the twentieth day). [Note 3] Bingham states

The crucial distinction is that, in [Garfield and Konover], the clerk was made aware that a complaint had been filed prior to the expiration of the time in which to appeal. Thus, although a bright line of twenty days has been generously interpreted by Garfield and Konover, we decline to extend the margins any further. [Note 4]

Plaintiffs argue that on October 15, 2013, prior to closing, Mackiewicz attested to the fact that the twenty day period to appeal the Planning Board Decision had expired without notice of an appeal having been filed with the Town Clerk Office, and that such certification was premature because the Town Hall had not yet closed. Notwithstanding this discrepancy, the facts in this case clearly indicate that Mackiewicz was not made aware of the filing of the Complaint until after the twenty day appeal period had run.

As a result of the foregoing, I find that the Notice was not timely filed with the Town Clerk Office, and that there is no evidence that the Town Clerk was timely aware of the filing of the Complaint.

Defendants also argue that this court does not have subject matter jurisdiction over this case because the Conservation Commission, and not the Planning Board, has jurisdiction over wetlands issues, the sole basis for Plaintiffs’ standing in the case. Plaintiffs contend that, as abutters to Locus, they have a rebuttable presumption of standing, and Defendants have done nothing to rebut this presumption. In the Complaint, Plaintiffs listed as their sole challenge to the Planning Board Decision that “the Common Driveway would cause harm to the wetlands located on the Locus and abutting property.” This court does not need to reach this issue because it has found that there was no timely filing of the Notice.

As a result of the foregoing, I ALLOW Defendants’ Joint Motion to Dismiss.

Judgment to enter accordingly.