At heart, this is an appeal under G.L. c. 40A, § 17, of the Town of Weston Zoning Board of Appeals’ denial of plaintiff Lisa Jacobs’ appeal of a building permit issued to defendant Cormier Home Construction LLP. Because Ms. Jacobs failed to file notice of this action with the Weston Town Clerk within 20 days of the filing of the Board’s decision, this court lacks subject matter jurisdiction to hear the appeal. Ms. Jacobs’ other claims, that her appeal was constructively granted and that she is entitled to a declaration under G.L. c. 240, § 14A, must also be dismissed because they fail to state a claim based on the facts in her complaint and because she is not an owner of real estate.
Lisa Jacobs filed the Complaint on April 24, 2015, and Plaintiff’s Verified Amended Complaint (complaint) on July 27, 2015. The Motion of Abrams Defendants to Dismiss Pursuant to Rule 12(b)(6) was allowed on June 19, 2015 and the claims against defendants Charles Abrams and Allison Abrams were dismissed with prejudice. At a telephone status conference on August 11, 2015, the plaintiff stipulated that the defendants in the complaint are the members of the Town of Weston Zoning Board of Appeals, the Town of Weston, and Cormier Home Construction LLP. The Motion to Dismiss as against Defendants Cormier Home Construction LLP, Cormier Custom Homes, LLC, Francis Cormier and Bernard Cormier (Cormier Motion to Dismiss), the Brief in Support of Motion to Dismiss as against Defendants Cormier Home Construction LLP, Cormier Custom Homes, LLC, Francis Cormier and Bernard Cormier, the Statement of Material Facts in Support of Motion to Dismiss as against Defendants Cormier Home Construction LLP, Cormier Custom Homes, LLC, Francis Cormier and Bernard Cormier, and the Appendix in Support of Motion to Dismiss as against Defendants Cormier Home Construction LLP, Cormier Custom Homes, LLC, Francis Cormier and Bernard Cormier were filed on August 31, 2015. The Municipal Defendants’ Motion to Dismiss (Town Motion to Dismiss) and the Memorandum in Support of Municipal Defendants’ Motion to Dismiss Amended Complaint were filed on September 2, 2015. The Plaintiff’s Opposition to Defendants’ Motion to Dismiss, the Plaintiff’s Response to Defendants’ Statement of Material Facts and Plaintiff’s Statement of Material Facts, and Plaintiff’s Appendix were filed on September 30, 2015. The Cormier Motion to Dismiss and the Town Motion to Dismiss were heard on October 5, 2015 and taken under advisement. This Memorandum and Order follows.
The complaint has four counts. The two motions to dismiss seek dismissal of count I under Mass. R. Civ. P. 12(b)(6), for failure to state a claim upon which relief can be granted, and dismissal of counts II, III, and IV under Mass. R. Civ. P. 12(b)(1), for lack of subject matter jurisdiction. In considering a motion to dismiss for failure to state a claim, the court accepts as true well-pleaded factual allegations and reasonable inferences drawn therefrom, Marram v. Kobrick Offshore Fund, Ltd., 442 Mass. 43 , 45 (2004), but does not accept “legal conclusions cast in the form of factual allegations.” Iannacchino v. Ford Motor Co., 451 Mass. 623 , 633 (2008), quoting Schaer v. Brandeis Univ., 432 Mass. 474 , 477 (2000). Generally, if matters outside the pleadings are presented to and not excluded by the court, the motion will be treated as a motion for summary judgment. Mass. R. Civ. P. 12(b), 12(c). The court may, however, take into account matters of public record and documents integral to, referred to, or explicitly relied on in the complaint, whether or not attached, without converting the motion to a motion for summary judgment. Marram, 442 Mass. at 45 n.4; Schaer, 432 Mass. at 477; Reliance Ins. Co. v. City of Boston, 71 Mass. App. Ct. 550 , 555 (2008); Shuel v. DeIeso, 16 LCR 329 , 329 n.2 (2008).
In considering a motion to dismiss for lack of subject matter jurisdiction, the court may either consider matters and documents outside the pleadings without converting the motion to one for summary judgment or, considering the same materials, convert the motion to dismiss into a motion for summary judgment. Bell v. Zoning Bd. of Appeals of Gloucester, 429 Mass. 551 , 555 (1999); Watros v. Greater Lynn Mental Health & Retardation Ass’n, Inc., 421 Mass. 106 , 108-109 (1995). Given the materials submitted by the defendants, the court will treat the motions to dismiss for lack of subject matter jurisdiction as motions for summary judgment. Generally, summary judgment may be entered if the “pleadings, depositions, answers to interrogatories, and responses to requests for admission . . . together with the affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Mass. R. Civ. P. 56(c). In viewing the factual record presented as part of the motion, the court is to draw “all logically permissible inferences” from the facts in favor of the non-moving party. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). “Summary judgment is appropriate when, ‘viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.’” Regis Coll. v. Town of Weston, 462 Mass. 280 , 284 (2012), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991). “The burden on the moving party may be discharged by showing that there is an absence of evidence to support the non-moving party’s case.” Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 711 (1991).
Therefore, in analyzing the motion to dismiss under rule 12(b)(6), the court will accept as true the allegations of the complaint for the purposes of the Motion to Dismiss, and will consider the various documents attached to the complaint and other documents referred to in the complaint. In analyzing the motion to dismiss under rule 12(b)(1), the court will consider all the materials submitted by the parties with their motions and oppositions, applying the standard for a motion for summary judgment.
For the purposes of the motions to dismiss pursuant to Mass. R. Civ. P. 12(b)(6), the court accepts as true the following facts as alleged in the complaint. Additional facts relevant to the motions to dismiss pursuant to Mass. R. Civ. P. 12(b)(1) are addressed in the discussion of those motions, infra.
1. The plaintiff Lisa Jacobs resides at 20 Colchester Road, Weston, Middlesex County, Massachusetts (the Jacobs Property).
2. The defendant Cormier Home Construction LLP [Note 1] (Cormier) owns the property at 33 Colchester Road, Weston, Middlesex County, Massachusetts, by a deed July 23, 2014 and recorded in the Middlesex South Registry of Deeds (registry) at Book 64043, Page 551 (Property).
3. The defendants Winifred I. Li, Jane Fisher Carlson, Connie K. Gutierrez, Alan D. Rose, Jr., Steven Garfinkel, and Stephen J. Larocque are members of the Town of Weston Zoning Board of Appeals (Board).
4. The defendant Town of Weston (Town) is a Massachusetts municipal corporation.
5. The Property is located in the Town’s Single Family Residential District B. It consists of a 46,506 square-foot lot. At the time it was conveyed to Cormier, there was a 2,695 square- foot single family residential structure on the Property. The Property is bordered by vegetated wetlands and is in the vicinity of Coffee Creek.
6. Ms. Jacobs resides in the Jacobs Property, a single family home, with her mother. Their residence is located on the other side of Colchester Road from the Property.
7. In the summer of 2014, before Cormier purchased the Property, Charles and Allison Abrams entered negotiations with the owners of the Property and Cormier to purchase the Property, demolish the existing house on the Property, and construct a new 4,345 square foot house. The Abrams submitted a site plan review application and a Notice of Intent with the Town. After public hearings on the site plan and the Notice of Intent, the Abrams’ engineering firm sent a letter to the Planning Board, dated September 15, 2014, requesting that the site plan application be withdrawn without prejudice.
8. At its September 17, 2014 public hearing, the Planning Board was informed of the withdrawal letter, approved the withdrawal request, and closed the public hearing.
9. On December 4, 2014, Cormier obtained a permit to demolish the existing structure on the Property.
10. On December 30, 2014, the Town Building Inspector issued a Building Permit No. 2014-544 (Building Permit) to Cormier for the construction of a new home on the Property. The Building Permit stated that the home would include an attached 3-car garage, a 1,700 square foot finished basement, and a walk-up unfinished attic. The total residential gross floor area (RGFA) was calculated as 4,650 square feet.
11. On December 30 and 31, 2014, Ms. Jacobs requested zoning enforcement from the Town Building Inspector with respect to the Building Permit and the RGFA calculations. The Town Building Inspector denied the enforcement request on December 31, 2014.
12. On January 23, 2015, Ms. Jacobs filed an appeal of the Building Permit and of the Building Inspector’s denial of enforcement with the Board.
13. The Board held a public hearing on the appeal on March 11, 2015. The Board voted to deny the appeal at the public hearing.
14. The Board filed its Notice of Decision with the Town Clerk on April 6, 2015.
15. Ms. Jacobs filed her complaint on April 24, 2015.
The complaint has four counts. Count I claims a constructive grant of Ms. Jacobs’s appeal pursuant to G.L. c. 40A, § 15. Count II claims that the building permit was issued in violation of the Town’s zoning bylaw, under G.L. c. 40A, § 7. Count III is an appeal of the Board’s denial of Ms. Jacobs’s appeal, under G.L. c. 40A, §§ 8 and 17. Count IV is a request under G.L. c. 240, § 14A for determination of the RGFA provisions of the zoning bylaw.
Count I. In Count I, Ms. Jacobs claims that her appeal was constructively granted under G.L. c. 40A, § 15, because the Board did not file its written decision with the Town Clerk within 14 days after its vote to deny the appeal. The defendants move to dismiss this count for failure to state a claim. The facts stated in the complaint show that the Board complied with the time limits of G.L. c. 40A, § 15, and there was no constructive approval. Count I fails to state a claim.
Section 15 sets two time limits for appeals. First, it requires that the “decision of the board shall be made within one hundred days after the date of the filing of an appeal, application or petition. G.L. c. 40A, § 15. Second, it requires the board to make “a detailed record of its proceedings, indicating the vote of each member upon each question, . . . and setting forth clearly the reason for its decision and of its official actions, copies of all of which shall be filed within fourteen days in the office of the . . . town clerk.” Id. Ms. Jacobs filed her appeal with the Board on January 23, 2015. The Board voted to deny the appeal on March 11, 2015. It filed its written decision with the Town Clerk on April 6, 2015, which was 26 days after its vote. The 100th day after filing was May 4, 2015 (actually, May 3, which was a Sunday). Thus, both the Board’s “decision” (its vote) and the written “detailed record” of the decision, id., were made and filed with the Town Clerk within 100 days of the filing of the appeal. Ms. Jacobs argues that, under § 15, the 14-day period for filing the written decision with the Town Clerk begins to run on the date the decision is made. The question of when the 14-day period begins to run was determined in Burnham v. Town of Hadley, 58 Mass. App. Ct. 479 (2003). In Burnham, the Hadley zoning board of appeals voted to deny the plaintiff’s appeal within 100 days, but did not file its decision with the town clerk until 84 days after its vote and 11 days after the 100-day period had run. Id. at 480. The Appeals Court held that § 15’s two-step process for handling zoning applications meant that the board only had to make a decision within 100 days. Id. at 482. On the other hand, “§ 15 allows the board to file its decision with fourteen days following the one hundred day period in which it must act.” Id. at 483. Here, the board made its decision within 100 days of the date of the filing of Ms. Jacobs’ appeal and filed its decision with the Town Clerk before the expiration of the 100-day period. The Board complied with the requirements of § 15, and Ms. Jacobs has no claim for a constructive approval of her appeal. Count I is dismissed for failure to state a claim upon which relief can be granted.
Counts II and III. Count III is an appeal of the Board’s decision, brought pursuant to G.L. c. 40A, § 17. Count II is a claim for the relief that Ms. Jacobs sought before the Board and which the Board denied. Therefore, Count II is also brought pursuant to G.L. c. 40A, § 17. Section 17 requires that any action appealing a decision must be brought in the Land Court “within twenty days after decision has been filed in the office of the . . . town clerk,” and that “[n]otice of the action with a copy of the complaint shall be given to such . . . town clerk so as to be received with such twenty days.” G.L. c. 40A, § 17. The decision was filed with the Town Clerk on April 6, 2015, which means that the 20-day deadline ran on April 27, 2015 (April 26 being a Sunday). There is no dispute that this action was filed with the Land Court within this 20-day period, as the complaint was filed on April 24, 2015. The defendants move to dismiss for lack of subject matter jurisdiction on the grounds that notice of this action was not filed with the Town Clerk before April 27, 2015.
In support of their motion to dismiss Counts II and III, which has been converted to a motion for summary judgment, the Board and the Town submit the affidavits of Deborah Davenport, the Town Clerk (Clerk Aff.) and Donna Vanderclock, the Town Manager (Manager Aff.). Based on these affidavits and the contentions of Ms. Jacobs, which the court credits in drawing inferences in her favor, the following facts appear undisputed. On April 24, 2015, Ms. Jacobs mailed a notice of this action by regular mail to the Town Clerk. Complaint ¶ 91 & Exh. 15. The Town’s procedure for retrieving mail is that a Town custodian retrieves the Town’s mail at the local post office each morning and delivers each item to the addressee at Town Hall. Manager Aff. ¶ 2. The Town Clerk did not receive Ms. Jacobs’ notice in the mail. Clerk Aff. ¶ 3. No other office in Town Hall received this notice in the mail. Manager Aff. ¶ 3. The first notice of this action that the Town Clerk received was a notice and copy of the complaint served by the sheriff on May 4, 2015. Clerk Aff. ¶ 3.
Based on these undisputed facts, Counts II and III must be dismissed. Receipt of notice by a town clerk is a prerequisite for an action under G.L. c. 40A, § 17, which courts police in the strongest way and strictly enforce. Bingham v. City Council of Fitchburg, 52 Mass. App. Ct. 566 , 568 (2001); Konover Mgmt. Corp. v. Planning Bd. of Auburn, 32 Mass. App. Ct. 319 , 322-323 (1992). Thus, notice of this action must have been received by the Clerk within 20 days of the date of filing of the Board’s decision, and a failure to meet this deadline will not be forgiven. Bingham, 52 Mass. App. Ct. at 569; see O’Blenes v. Zoning Bd. of Appeals of Lynn, 397 Mass. 555 , 557-558 (1986); Pasqualino v. Board of Appeals of Wareham, 14 Mass. App. Ct. 989 , 989-990 (1982); Costello v. Board of Appeals of Lexington, 3 Mass. App. Ct. 441 , 443-44 (1975). Notice must be received by the Clerk within 20 days; simply mailing notice within 20 days, as Jacobs did, is not sufficient. Nightingale v. Board of Appeals of Methuen, 7 Mass. App. Ct. 887 , 888 (1979); Costello, 3 Mass. App. Ct. at 443.
The Board and the Town have established, without any countering evidence from Ms. Jacobs, “that there is an absence of evidence to support” the essential element under a § 17 appeal of filing notice with the Clerk within 20 days. Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 711 (1991). Failure to meet this deadline deprives the court of jurisdiction to hear the action. O’Blenes, 397 Mass. at 558. Counts II and III are hereby dismissed for lack of subject matter jurisdiction.
Count IV. Count IV seeks a determination of the application of RGFA provisions of the Town’s zoning bylaws pursuant to G.L. c. 240, § 14A. Section 14A provides that the “owner of a freehold estate in possession in land may bring a petition in the land court against a city or town wherein such land is situated . . . for determination as to the validity of a municipal ordinance . . . adopted under the provisions of chapter forty A.” G.L. c. 240, § 14A. A jurisdictional prerequisite to bringing an action under § 14A is that the plaintiff be the “owner of a freehold estate” in land. Id. The parties do not dispute that Ms. Jacobs does not own the Jacobs Property; rather, her mother holds title to the Jacobs Property. Ms. Jacobs is not the owner of a freehold estate in possession in land in the Town. She cannot bring an action under § 14A. Count IV shall be dismissed without prejudice.
For the reasons set forth above, the Town Motion to Dismiss and the Cormier Motion to Dismiss are each ALLOWED. Judgment shall enter dismissing Counts I, II, and III of the complaint with prejudice and dismissing Count IV of the complaint without prejudice.
[Note 1] There is some confusion in the record as to whether Cormier Home Construction is an “LLP” or an “LLC.” As Cormier describes itself in its pleadings as an “LLP,” the court will treat it as described.