MISC 14-486199

April 29, 2015

Plymouth, ss.



On September 8, 2014, Plaintiff Indianhead Realty, Inc. (Plaintiff) initiated this action pursuant to G. L. c. 40A, § 17, appealing the denial by the Town of Plymouth Zoning Board of Appeals (Board) of Plaintiff’s application for a special permit relating to its property located at 1929 State Road in Plymouth (Locus). Plaintiff owns and operates a recreational campground, known as Indianhead Resort at Locus. According to its application to the Board, it sought the special permit to remove sand in order to construct recreational/athletic fields and an accessible path to enhance the resort (Application). Plaintiff alleges the Board’s denial exceeded its authority, was legally untenable, and was unreasonable, whimsical, capricious or arbitrary.

On November 24, 2014, the Board filed a Motion to Dismiss for lack of subject matter jurisdiction, pursuant to Mass. R. Civ. P. 12(b)(1). Plaintiff filed an opposition on December 12, 2014. A hearing was held on January 5, 2015, at which all parties were heard. Taking into consideration the record in this case, and the relevant statutes and case law, Defendant’s Motion to Dismiss is DENIED.

In reviewing a motion to dismiss under Mass. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction, the court accepts as true the factual allegations of the plaintiff’s complaint, as well as any favorable inferences which may be reasonably drawn therefrom. Ginther v. Comm’r of Insurance, 427 Mass. 319 , 322 (1998). The court may also consider documents and other materials outside the pleadings and resolve any factual disputes between the parties. Audoire v. Clients’ Security Bd., 450 Mass. 388 , 390 n.4 (2008), citing Callahan v. First Congregational Church of Haverhill, 441 Mass. 699 , 710 (2004); Wooten v. Crayton, 66 Mass. App. Ct. 187 , 190 n.6 (2006). The following facts are shown by the pleadings, augmented by the documents filed by all parties in connection with the Board’s motion.

Plaintiff owns and operates Indianhead Resort, a recreational campground located at Locus. On August 20, 2014, the Board denied Plaintiff’s Application and filed its decision with the Town Clerk. Pursuant to G. L. c. 40A, § 17, the twenty-day statute of limitations to file an action for judicial review of the Board’s decision expired on September 9, 2014. Plaintiff filed his complaint with the Recorder’s office on September 8, 2014, accompanied by a check for the entry fee in the amount of $225.00. The complaint was docketed and assigned a civil action number by the Recorder’s office, in accordance with its customary practice. [Note 2] Although not mentioned in his affidavit, Plaintiff represented at the hearing (and it was not challenged) that on September 9, 2014, Plaintiff hand delivered a copy of the complaint to the clerk’s office of the Town of Plymouth.

On September 10, 2014, Plaintiff realized there were insufficient funds to cover the check he had delivered to the Recorder’s office and deposited additional funds into the account on September 11, 2014. Plaintiff expected the check would be re-deposited, and continued to monitor his bank account to confirm the check cleared. When Plaintiff learned the check was returned due to insufficient funds, he contacted the Recorder’s office and was instructed by a staff person that he could either mail a replacement check or deliver one by hand. He was also notified that the Land Court’s accountant was out of the office until September 23, 2014, and that no action regarding the check would be taken until the staff person’s return. Plaintiff mailed a replacement check on September 18, 2014. On September 23, 2014, the Recorder’s office contacted Plaintiff and confirmed receipt of the replacement check. The Land Court staff person also stated that, due to receipt of the replacement check, it considered Plaintiff’s appeal properly filed.

I. The Return Of Plaintiff’s Check Due To Insufficient Funds Did Not Render Plaintiff’s Appeal Untimely

Under G. L. c. 40A, § 17, an appeal must be commenced within twenty days of the filing of a local board’s decision with the city or town clerk—in this case, on or before September 9, 2014. The statute also requires that notice of the action, with a copy of the filed complaint, be given to the city or town clerk within the same twenty-day period. These requirements are jurisdictional and “policed in the strongest way.” Pierce v. Bd. of Appeals of Carver, 369 Mass. 804 , 808 (1986).

Under Mass. R. Civ. P. 3 (Rule 3), an action is commenced by mailing to or filing with the clerk of the proper court a complaint and entry fee, as prescribed by law. At the hearing, Defendants urged this court to focus on Rule 3’s requirement that an entry fee accompany a complaint, arguing that compliance with requirements of G. L. c. 40A, § 17 are not as important and should not be taken into consideration by this court in assessing whether this case should be permitted to proceed. It is clear that filing a complaint without a filing fee will not commence an action, as the court would not accept a filing without a proffered check for the full amount of the filing fee. However, in the instant case, Plaintiff filed both a complaint and a filing fee, complying with the plain terms of Rule 3. When Plaintiff’s check for the filing fee was returned due to insufficient funds, he immediately acted to remedy the problem, and communicated directly with the Recorder’s office, and followed the instructions given to him. He was told, after the court received his replacement check, that his appeal was filed successfully. Defendants argue that because Plaintiff’s check was dishonored and a valid entry fee not received until September 22, 2014, Plaintiff’s action was not timely filed and the court, therefore, cannot entertain Plaintiff’s appeal.

This court disagrees that this situation must be viewed solely in the context of Rule 3. Of equal importance in an appeal under G. L. c. 40A, § 17 is notice to the requisite city or town clerk, a deadline that is strictly enforced with little leniency. Bingham v. City Council of Fitchburg, 52 Mass. App. Ct. 566 , 568 (2001). Jurisdiction hinges on notice. Carey v. Planning Bd. of Revere, 335 Mass. 740 , 745 (1957). Filing with the town clerk provides notice to any interested parties, and those “should be able to depend on the state of the record of the clerk’s office at the close of business on the last day [of the appeal period].” Konover Mgmt. Corp. v. Planning Bd. of Auburn, 32 Mass. App. Ct. 319 , 322-323 (1992). Timely filing is a “condition sine qua non, while other steps in carrying out the appeal [may] be treated on a less rigid basis.” Pierce v. Bd. of Appeals of Carver, 369 Mass. 804 , 811 (1976); see also Costello v. Bd. of Appeals of Lexington, 3 Mass. App. Ct. 441 (1975) (stating, when adequate notice is given to the town clerk within the required time period, strict compliance with all details of the notice provision is unnecessary).

The filing of the complaint with the Land Court and the filing of the notice with the town clerk’s office are thus the critical components of an appeal under G. L. c. 40A, § 17. Other requirements are less stringent. See Schulte v. Dir. of the Div. of Emp’t Sec., 369 Mass. 74 , 81 (1975) (stating that “[w]ith 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.”) Plaintiff hand delivered a copy of the complaint to the town clerk’s office on September 9, 2014, the day after he filed with the court, and within the twenty-day statute of limitations. Defendants have failed to demonstrate any prejudice caused by Plaintiff’s returned check.

This is not a case in which Plaintiff simply filed a complaint and neglected to file an entry fee entirely. He proffered a check in good faith to the Recorder’s office with the complaint. As is its customary practice, the Recorder’s office accepted this check, docketed the case and assigned it a case number and judge, all prior to depositing the check. [Note 3] Plaintiff himself reached out to the Recorder’s office when he realized he had insufficient funds and received instructions that he could resend the filing fee via mail, as no action would be taken regarding the check until at least September 23, 2014, when staff responsible for negotiating the check returned to the office. On September 23rd, the Recorder’s office confirmed receipt of Plaintiff’s second check and assured him the complaint was timely filed. Plaintiff’s actions in quickly addressing the returned filing fee and his discussions with the Recorder’s office entitle him to proceed with his otherwise timely filed case.

While there are no Massachusetts appellate cases directly on point, this court notes that the favored approach in many jurisdictions is in accord with this court’s view. See 51 Am. Jur. 2d Limitation of Actions § 232, which provides:

If a complaint is filed without a required fee, the action does not commence until the fee is paid. Thus if a complaint submitted to a court clerk is accompanied by a bad check for the filing fees, it has not been filed with the court for the purposes of the statute of limitations. However, if the clerk, upon being tendered an incorrect fee, assures the party’s counsel the pleading will be timely filed, the plaintiff is entitled to relief from the statute of limitations, which would otherwise have barred the action. Also, a complaint may be constructively filed for statute of limitations purposes on the date it was first delivered to the court clerk, even though the filing fee was inadequate, where the plaintiff paid the additional amount due, when the clerk gave notice to do so.

Allowing Plaintiff’s complaint to proceed as timely filed is true to the spirit of the Massachusetts Rules of Civil Procedure, which are “designed to facilitate pleading and to eliminate technicalities.” Friedman v. Jablonski, 371 Mass. 482 , 488 (1976). The Rules are “instruments for the promotion of justice . . . not the exaltation of mere technicalities.” Beaupre v. Cliff Smith & Assocs., 50 Mass. App. Ct. 480 , 484 n.8 (2000). In interpreting Rule 3, this court notes it should be construed in conjunction with Mass. R. Civ. P. 1 “to secure the just, speedy and inexpensive determination of every action.” Such interpretation adheres to the “modern judicial attitude toward procedural issues, which favors decisions on the merits . . . and seeks to assist, not hinder, persons who have cognizable legal claims to bring their problems before the courts.” Konover, 32 Mass. App. Ct. at 323, n.8.

For the foregoing reasons, Defendants’ Motion to Dismiss pursuant to Mass. R. Civ. P. 12(b)(1) is DENIED.

II. Motion in Intervene

On November 17, 2014, Joseph G. Whalen, James E. Hamilton, Judith M. Quinn, and Donald P. Quinn, individually and as Trustee of Ellisville Hill Trust (collectively, Proposed Intervenors), moved to intervene as party defendants. [Note 4] The Board members filed an assent to the Motion to Intervene on November 20, 2014. Plaintiff filed an opposition and cross-motion to strike Proposed Intervenors’ Motion to Dismiss on December 1, 2014. At the hearing on January 5, 2015, on Defendants’ Motion to Dismiss, the court ruled it would stay the Motion to Intervene until issuing a decision on the Board’s Motion to Dismiss. Having denied Defendants’ Motion to Dismiss, the court now decides the Motion to Intervene on the papers, pursuant to Land Court Rule 6.

Proposed Intervenors are all “parties in interest” under G. L. c. 40A, § 11, as they are abutters, owners of land directly opposite on a public or private street or way, or abutters to the abutters within three hundred feet of the property line. They seek intervention by right under Mass. R. Civ. P. 24(a) or, alternatively, permissive intervention under Mass. R. Civ. P. 24(b). The court finds that Proposed Intervenors are not entitled to intervene as a matter of right, as the Board’s decision was not adverse to their rights. Nonetheless, the court will allow permissive intervention. Mass. R. Civ P. 24(b) states: “[u]pon timely application anyone may be permitted to intervene in an action: (1) when a statute of the Commonwealth confers a conditional right to intervene; or (2) when an applicant's claim or defense and the main action have a question of law or fact in common.” The court enjoys “broad discretion in deciding whether to permit intervention.” Cruz Mgmt. Co. v. Thomas, 417 Mass. 782 , 785 (1994); see also Attorney Gen. V. Brockton Agric. Soc’y, 390 Mass. 431 , 435 (1983) (reiterating that a trial court has “considerable discretion” in granting permissive intervention).

Abutters, as “parties in interest” under G. L. c. 40A, § 11 benefit from a rebuttable presumption that they are “aggrieved persons” with standing to appeal a decision of a zoning board of appeals. The Proposed Intervenors own and reside on properties located in the same zoning district as Locus. Their properties are either located directly across State Road from the site of the proposed sand removal on Locus or use a common driveway on State Road directly across from the main access road into Locus. Each Proposed Intervenor is either the record or equitable owner of land within three hundred feet of Locus. [Note 5]

Proposed Intervenors have filed a timely motion for intervention. The case has been pending only since September 9, 2014. Other than Defendants’ Motion to Dismiss, no significant court events have taken place. The underlying legal issues in this case, although it will involve separate and distinct defendants, remain the same. Additionally, the court cannot see any prejudice that may be caused to Plaintiff as a result of this intervention, and the Defendant members of the Board have assented to the Proposed Intervenors’ motion. [Note 6]

Accordingly, the Motion to Intervene is ALLOWED, pursuant to Mass. R. Civ. P. 24(b), and the proffered Motion to Dismiss has been docketed. The motion is, however, DENIED, for the same reasons set forth above in connection with the denial of the Board’s Motion to Dismiss. [Note 7]

A case management conference is scheduled for June 18, 2015, at 11:00 AM. The memorandum is due, in conformance with the requirements set forth in the Case Management Notice not later than June 11, 2015.

So ordered.


[Note 1] Throughout this order “Plaintiff” sometimes refers to the corporate entity, Indianhead Realty, Inc., and sometimes refers to its representative, Richard M. Churchill.

[Note 2] The court’s data management system, MassCourt, is used by the Recorder’s office to open cases. The system automatically assigns a case number and judge to each complaint filed. Cases are officially opened and assigned before the entry fee paid by check is deposited in the court’s bank account.

[Note 3] Defendants noted at oral argument that G. L. c. 262, §7 requires “clerks of the court shall collect all fees in advance.” Historically, however, this statutory language was construed not as a condition precedent to rights of parties under processes duly entered without payment of proper fees in advance, but as “directory” to the clerks. Clemens Elec. Mfg. Co. v. Walton, 168 Mass. 304 , 306 (1897). In Clemens, the Supreme Judicial Court further stated “[t]he effect of filing with the proper officer at the proper place, of papers required to be filed, ought not to be affected by the question whether the proper legal fees have or have not been paid, if the fees are paid which are demanded. The mistake, if any has been made, can be corrected afterwards.” Id. at 307.

[Note 4] Proposed Intervenors moved to intervene in order to file a Motion to Dismiss pursuant to Mass. R. Civ. P. 12(b)(1), and to otherwise defend against Plaintiff’s complaint.

[Note 5] Donald P. Quinn and Judith M. Quinn, individually, are beneficiaries of the Ellisville Hill Trust, of which Donald P. Quinn is also Trustee. The Ellisville Hill Trust owns land within three hundred feet of Locus.

[Note 6] The court’s allowance of the Motion to Intervene is not an affirmative ruling that Proposed Intervenors have standing. This order does not preclude Plaintiff from challenging standing at a later date, if it so chooses.

[Note 7] Plaintiff’s Cross-Motion to Strike Proposed Intervenors’ Motion to Dismiss is DENIED.