JUDITH and JAMES P. ROBERTSON, JULIA BISHOP, E. THOMAS FLYNN, WILLIAM and VIRGINIA FOX, ROBERT S. CYR, JOHN WALKER and MARY ANN HELMUTH, as Trustee of the HELMUTH REALTY TRUST vs. TYLER COURT LIMITED PARTNERSHIP, PLANNING BOARD FOR THE CITY OF CAMBRIDGE, and HUGH RUSSELL, H. THEODORE COHEN, PAMELA WINTERS, STEVE COHEN, STEVEN WINTERS, and CATHERINE PRESTON CONNELLY, in their capacities as memebers and associate members of the CAMBRIDGE PLANNING BOARD.

Plaintiffs filed their unverified Complaint (the “Complaint”) with the Middlesex Superior Court (Civil Action No. 13-2528) on June 20, 2013, pursuant to G. L. c. 40A, § 17, appealing a decision of Defendant Cambridge Planning Board (the “Planning Board”) which granted special permits to Defendant Tyler Court Limited Partnership (“Tyler Court”) (together with the Planning Board, “Defendants”) to construct a fifty-seven unit multifamily residential building, ten townhouse style units and seventy-one off-street parking spaces (the “Project”) at property located at 33 Cottage Park Avenue, Cambridge, Massachusetts (“Locus”). Defendants filed a Joint Motion to Dismiss Pursuant to Mass. R. Civ. P. 12(b)(1) on October 11, 2013, together with Affidavit (the “Lopez Affidavit”) of Donna P. Lopez (“Lopez”) (Cambridge City Clerk). Plaintiffs filed their Opposition on October 10, 2013, together with portions of a deposition of Donna P. Lopez. This case was transferred to the permit session of the Land Court on October 16, 2013 (13 PS 480072). A case management conference was held on November 18, 2013. Defendants filed their Joint Reply on December 23, 2013, together with the entire deposition of Donna Lopez. Plaintiffs filed a Surreply on December 31, 2013, together with Affidavit of Mary-Elise Connolly (Plaintiffs’ attorney) and Affidavit of E. Thomas Flynn (Plaintiff). A hearing was held on the Motion to Dismiss on Thursday, January 2, 2014. At the hearing, Defendants sought permission to file a Response to Surreply, which this court allowed, and the Response to Surreply was filed on January 9, 2014. At that time, 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. The Planning Board issued its decision (the “Planning Board Decision”) on the Project on May 21, 2013 , granting special permits for the Project. The Planning Board Decision was filed with the office (the “City Clerk Office”) of the Cambridge City Clerk (the “City Clerk”) on May 31, 2013.

2. Plaintiffs filed the Complaint with the Middlesex Superior Court (the “Court”) on June 20, 2013. The filing fee was not paid until July 2, 2013.

3. On Thursday, June 20, 2013, the City Clerk Office closed at 5 PM. [Note 1] No notice of filing of the Complaint (the “Notice”) had been filed with the City Clerk Office as of the close of business. At 7:09 PM, Plaintiffs sent an email (the “Email”) to the City Clerk Office, which Email consisted of a cover letter noting that the appeal had been filed with the Court, the first page of the Complaint, and a cover sheet to the Complaint which had been filed with the Court. [Note 2] A copy of the complete Complaint was delivered to the City Clerk Office at 8:26 AM on June 21, 2013.

4. On June 21, 2013, Lopez had a conversation with the attorney for Tyler Court that she had received the Email. But she stamped a certification that attested to the fact that “Twenty (20) days have elapsed since the filing of the decision. No appeal has been filed.” [Note 3]

**************************

Defendants argue that this court lacks jurisdiction over this case 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.

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.

June 20, 2013 was the twentieth day after the Planning Board Decision was filed with the City Clerk Office. Plaintiffs acknowledge that the Notice was not timely filed prior to the close of business of the City Clerk Office on June 20, 2013. Plaintiffs, however, 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. [Note 4] 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 5]

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 City Clerk Office closed at 5 PM, and the notice of appeal had not been timely filed there. At 7:09 PM, the Email was sent to the work email address of the City Clerk. Plaintiffs focus on the deposition testimony of Lopez that she “may have reviewed the headings in my work email inbox through my iPad on the evening of June 20th.” However, the Lopez Affidavit stated that, to the best of her recollection, “I did not see the content of the [Email] on June 20, 2013 . . . To the best of my recollection, [the morning of June 21, 2013] was the first time I became aware that plaintiffs had appealed the [Planning Board] Decision.” 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 Lopez “may” have seen the Email on June 20 is pure speculation. Such argument does not meet the criteria that the City Clerk must be “made aware” that a notice of appeal had been filed. The facts indicate that Lopez did not have knowledge of the Notice on June 20, 2013 (the twentieth day). 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 6]

Moreover, on June 21, 2013, Lopez 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 City Clerk’s Office by June 20, 2013.

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

Defendants also argue that Plaintiffs violated Mass. R. Civ. P. 3, which states that

A civil action is 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.

Defendants contend that although the Complaint was timely filed with the Court on June 20, the filing fee was not paid until July 2, 2013. Defendants cited no cases to support their position. In fact, case law, while providing that the timing of the filing of the complaint with the court and the notice of appeal with the city or town clerk’s office is critical, other requirements which do not serve the statutory purpose of the filing are less stringent (“With respect to other slips in the procedure for judicial review, the judge is to 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.” Schulte v. Director of the Div. of Employment Security, 369 Mass. 74 , 81 (1975)). The payment of the filing fee does not appear to fall within this category, and Defendants have shown no prejudice in this regard. But the payment of the filing fee is a moot issue, as 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.