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. A decision of todays date has been issued (the Decision). In accordance with the Decision, it is hereby:
ORDERED and ADJUDGED that the notice of the filing of the Complaint (the Notice) was not timely filed with the office of the Cambridge City Clerk, and that there is no evidence that the City Clerk was timely aware of the filing of the Complaint.
ORDERED and ADJUDGED that Defendants Joint Motion to Dismiss is ALLOWED.
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.