This case is but the latest iteration of a dispute concerning the proposed construction of a fifteen-unit townhouse development at 15 Oregon Road in Southborough. The plaintiffs, who are abutters to the proposed development, have appealed the approval by the Southborough Board of Appeals (the Board), changes to a previously approved comprehensive permit, issued pursuant to G. L. c. 40B. The plaintiffs appealed pursuant to G. L. c. 40B, §21 and G. L. c. 40A, §17, and in the alternative, pursuant to G. L. c. 249, §4. The defendants, both the Board and the developer, William DePietri, Trustee (DePietri), have moved to dismiss Count I (the appeal under G. L. c. 40A, §17) pursuant to Mass. R. Civ. P. 12(b)(1) and Count II (the appeal in the nature of certiorari under G. L. c. 249, §4) pursuant to Mass. R. Civ. P. 12(b)(6). For the reasons stated below, the motion to dismiss is ALLOWED, and the action is DISMISSED.
In reviewing a motion to dismiss for lack of subject matter jurisdiction pursuant to Mass. R. Civ. P. 12(b)(1), the court accepts as true the factual allegations in the complaint, as well as any favorable inferences reasonably drawn from them. Ginther v. Commr of Ins., 427 Mass. 319 , 322 (1998). In considering subject matter jurisdiction under Rule 12(b)(1), the court may consider matters outside the four corners of the complaint, which are used to support the movants claim that the court lacks subject matter jurisdiction. Id. at n.6.
The complaint and other materials submitted by the parties establish the following facts, which are accepted as true for the purposes of this motion. The Board issued a decision on October 21, 2010 approving an application by DePietri for a comprehensive permit pursuant to G. L. c. 40B, §§20-23, (40B) for the construction of a fifteen unit development at the property at 15 Oregon Road (the Property). The comprehensive permit was not appealed. Subsequently, DePietri, instead of going forward with construction of the approved 40B project, applied to the Board for a special permit to construct a fifteen-unit age-restricted (55 and over) development in the same location on the Property, in lieu of the approved 40B project. The special permit project as proposed differed in some respects physically from the approved 40B project, but remained a fifteen-unit project. The Board approved the special permit on September 9, 2013, and the plaintiffs (the same plaintiffs as in the present action) appealed the approval to this court. In Luttrell, et al. v. Southborough Board of Appeals, 13 Misc. 479719 (Luttrell I), this court affirmed the issuance of the special permit. The plaintiffs appealed the decision in Luttrell I, and their appeal is presently pending before the Appeals Court. While that appeal is pending, DePietri has gone back to the Board yet again and applied for what he termed an insubstantial change in the approved 40B project, essentially conforming it to the approved special permit age-restricted project, both physically and in terms of the proposed restriction to those age 55 and older. The Board approved the proposed changes to the 40B project at a public meeting attended by the plaintiffs, and at which they were represented by counsel, and issued a written decision that was filed with the town clerk on August 27, 2015.
The plaintiffs filed the present appeal of the Boards latest decision with this court on September 15, 2015, asserting one count as an appeal pursuant to G. L. c. 40A, §17, and in the alternative, a second count in the nature of certiorari pursuant to G. L. c. 249, §4. The defendants argue in their motion to dismiss that Count I, the appeal pursuant to G. L. c. 40A, §17 must be dismissed on jurisdictional grounds because the plaintiffs failed to comply with the procedural requirements for an appeal under the section, leaving the court without subject matter jurisdiction. The defendants argue that Count II, in the nature of certiorari, should be dismissed for failure to state a claim upon which relief can be granted because, it is argued, the plaintiffs cannot plead that they have suffered a substantial injury or injustice that will allow certiorari to lie, citing Maram v. Fourth Dist. Court of Eastern Middlesex, 358 Mass. 770 (1968).
In their opposition to the motion to dismiss, the plaintiffs argue that this action is not governed by G. L. c. 40A, §17, [Note 1] that there is no statutory provision for appeal of a decision of a board of appeals granting what is purported to be an insubstantial change to a 40B project, and therefore the plaintiffs appeal rights that are governed by the certiorari statute, G. L. c 249, §4.
The plaintiffs, in making the argument that this action is governed by G. L. c. 249, §4, have put all of their eggs in one basket. This is because, although they have asserted counts under both G. L. c. 40A, §17 and G. L. c. 249, §4, they have failed to comply with the jurisdictional requirements for the filing of a G. L. c. 40A, §17 appeal. The plaintiffs filed their action within twenty days of the filing of the Boards decision with the town clerk, but they did not comply with the requirement in section 17 that, 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. It is clear upon the record (and the plaintiffs in any event concede this fact) that the plaintiffs did not give notice of the present action to the town clerk within twenty days (or since) of the filing of this action.
G. L. c. 40A, §11, provides in relevant part, No variance or special permit, or any extension, modification, or renewal thereof, shall take effect until a copy of the decision bearing the certification of the city or town clerk that twenty days have elapsed after the decision has been filed in the office of the city or town clerk and no appeal has been filed The town clerk issued such a notice, dated October 7, 2015, certifying that the decision of the Board was filed with the town clerk on August 27, 2015, that twenty days have elapsed since the filing of the decision with the town clerk, and [n]o appeal therefore has been filed. This is conclusive evidence that the notice required by G. L. c. 40A, §17, was not given by the plaintiffs (and, as noted above, they concede that no such notice was given.)
Receipt of notice by a city clerk is a prerequisite for an action under G. L. c. 40A, §17, which the courts have policed in the strongest way and given strict enforcement . Bingham v. City Council of Fitchburg, 52 Mass. App. Ct. 566 , 568 (2001), quoting from Konover Management Corp. v. Planning Bd. of Auburn, 32 Mass. App. Ct. 319 , 322-323 (1992). Failure to comply with this jurisdictional requirement means that the (court) lacked jurisdiction over the zoning appeal. Town of Uxbridge v. Griff, 68 Mss. App. Ct. 174, 175, fn. 3 (2007).
Accordingly, this court is without jurisdiction to hear the plaintiffs appeal pursuant to G. L. c. 40A, §17. The question then becomes whether an appeal pursuant to G. L. c. 40A, §17 was the plaintiffs exclusive remedy, in which case the entire action must be dismissed, or whether, as the plaintiffs argue, the remedy of G. L. c. 40A, §17 was never available to them in the first place, in which case an action in the nature of certiorari pursuant to G. L. c. 249, §4 would lie, as it would provide them with a remedy where no other remedy is available.
The Low and Moderate Income Housing statute, G. L. c. 40B, §§20-23, provides a bifurcated system for appeals, depending on whether a comprehensive permit has been issued or denied. Section 21 of G. L. c. 40B provides that, Any person aggrieved by the issuance of a comprehensive permit or approval may appeal to the court as provided in section seventeen of chapter forty A. This provides an abutter or other person who is presumed to be aggrieved or who can demonstrate aggrievement, with a remedy for the issuance of a comprehensive permit or approval, identical to the remedy offered to persons aggrieved by the issuance of zoning variances or special permits, although with more circumscribed grounds upon which one may be determined to be aggrieved. See Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 (2006). An applicant, on the other hand, aggrieved by a denial or by an approval with conditions that make a project uneconomic, has a separate route for appeal that goes through the Housing Appeals Committee (HAC), and then to Superior Court, pursuant to G. L. c. 40B, §22. However, for the aggrieved abutter, the exclusive route for an appeal is as provided in G. L. c. 40A, §17. The foregoing remedy shall be exclusive G. L. c. 40A, §17.
G. L. c. 40B, §21 does not provide otherwise, whether the appeal is from the original issuance of a comprehensive permit, or from the approval of a change, substantial or insubstantial, to a comprehensive permit. The statute itself provides explicitly that the remedy for an aggrieved person applies both in the case of the issuance of a comprehensive permit and in the case of an approval. There would be no reason for the inclusion in the statute of the word approval in addition to the phrase issuance of a comprehensive permit if the intent were not to allow appeals other than from the original issuance of a comprehensive permit, as for instance, in the case of the approval of a change in a comprehensive permit.
This construction of the statute is borne out by an examination of the regulations adopted to implement the statutory scheme. 760 CMR 56.01. The conduct of local hearings for a 40B project before a board of appeals is governed by 760 CMR 56.05. Section 56.05(11) governs Changes after Issuance of a Permit. It provides separate procedures for changes deemed to be substantial and changes deemed to be insubstantial, but in all cases in which a change is approved by a board of appeals, a decision granting the change may be appealed to the superior court pursuant to M. G. L. 40B, §21 and M. G. L. c. 40A, §17. [Note 2]
The conclusion that, in all cases in which a person claiming to be aggrieved wishes to appeal a decision approving the original issuance of a comprehensive permit or a decision amending or otherwise changing a comprehensive permit, the appeal is governed by G. L. c. 40A, §17, is also borne out by case law. In Taylor v. Board of Appeals of Lexington, 451 Mass. 270 (2008), the Supreme Judicial Court assessed the tension between the competing statutory provisions for appeals by applicants aggrieved by the denial of a comprehensive permit or conditions that made the project uneconomic, and appeals by persons aggrieved by the issuance of a comprehensive permit. In Taylor, a board of appeals had issued a comprehensive permit with conditions. The developer appealed the conditions to the HAC pursuant to G. L. c. 40B, §22, and a group of abutters the issuance of the comprehensive permit to Superior Court pursuant to G. L. c. 40B, §21 and G. L. c. 40A, §17. The HAC ordered the Board to issue an amended comprehensive permit; the developers argued that the abutters rights were adequately protected in the HAC proceeding and that the abutters should have no further rights of appeal. The Supreme Judicial Court ruled otherwise, and held that the amended comprehensive permit rendered the abutters original appeal to Superior Court moot, but that they were not deprived of a remedy because they retained the right to appeal the amended comprehensive permit pursuant to G. L. c. 40A, §17. Under the plain language of G. L. c. 40B, §21, any person aggrieved by the issuance of that comprehensive permit (as ordered by the HAC with changes to the original conditions) is entitled to seek judicial review thereof by commencing a timely action as provided in G. L. c. 40A, §17. Id., at 277. Likewise, the plaintiffs in the present case were entitled to appeal the decision of the Board allowing a change to the 40B project to this court, but such an appeal was governed exclusively by G. L. c. 40A, §17.
Certiorari does not provide an additional or alternative avenue of appellate review. Cumberland Farms, Inc. v. Planning Board of Bourne, 56 Mass. App. Ct. 605 , 607 (2002). Where a zoning appeal pursuant to G. L. c. 40A, §17 is available as a remedy, certiorari is not available, even where the parties agree to the use of the certiorari statute. Id., at 609. Accordingly, G. L. c. 249, §4, an action in the nature of certiorari, was not available to the plaintiffs in lieu of their remedy pursuant to G. L. c. 40B, §21 and G. L. c. 40A, §17.
Therefore, it is
ORDERED that the defendants motion to dismiss pursuant to Mass. R. Civ. P. 12(b)(1) and Mass. R. Civ. P. 12(b)(6), is ALLOWED, and the complaint in this action is hereby DISMISSED.
It is further
ORDERED that no costs, fees, damages or other amounts are awarded to any party.
[Note 1] In their opposition to the motion to dismiss, the plaintiffs purport to withdraw Count I, on the ground that no appeal lies from the Boards decision under (G. L. c. 40A, §17).
[Note 2] The limitation of appeal to the superior court is an apparent mistake in the regulation that would not deprive this court, or the Housing Court or District Court of jurisdiction, since those courts are given jurisdiction to hear such appeals by G. L. c. 40A, §17.