MISC 16-000580

February 17, 2017



Plaintiff William L. Harvey III ("Plaintiff") commenced this action by filing a verified Complaint on September 28, 2016, appealing, pursuant to G. L. c. 40A, § 17, a decision (the "Zoning Board Decision") of Defendant Zoning Board of Appeals of the Cityof Lowell(the "Zoning Board"), which had granted Defendant Chelmsford Chicken LLC ("Chelmsford Chicken") (together with the Zoning Board, "Defendants") a special permit and variance to operate a drive-through lane and service window at the premises known as and numbered 1288.1 Westford Street, Lowell, MA and 85 Parkhurst Road, Chelmsford, MA (together, "Locus"). [Note 1] [Note 2]

On October 24, 2016, the Zoning Board filed a Motion to Dismiss, together with a supporting memorandum and an appendix of exhibits. Plaintiff filed opposition to this motion on November 2, 2016. On November 4, 2016, Chelmsford Chicken filed its own Motion to Dismiss, together with a supporting memorandum. A case management conference was held on November 15, 2016, at which Plaintiff also filed opposition to Chelmsford Chicken's motion. A hearing on both motions was held on December 14, 2016, and, at that time, the motions were taken under advisement. [Note 3]

Based upon the pleadings, the parties' motion briefs, and the documents annexed thereto, I find that the following material facts are not in dispute:

1. On July 8, 2016, Chelmsford Chicken filed an application (the "Application") with the City of Lowell Department of Planning and Development, Division of Development Service, seeking (a) site plan review by the City of Lowell Planning Board (the "Planning Board") pursuant to Section 11.4 of the City of Lowell Zoning Ordinance (the "Ordinance"), and (b) a special permit from the Zoning Board pursuant to Article 12 of the Ordinance. [Note 4] [Note 5]

2. Upon receiving the Application, the Zoning Board issued notice that a Zoning Board hearing on the Application would be held on August 22, 2016 (the "Zoning Board Hearing"). That notice was published in the Lowell Sun newspaper on July 31, 2016 and August 8, 2016, posted in Lowell City Hall on August 15, 2016, and mailed to Chelmsford Chicken, all abutting landowners, and the planning boards of all abutting towns. [Note 6] As a "party in interest" within the meaning of G. L. c. 40A, § 11, Plaintiff was among those who were given such notice -- which he acknowledges. [Note 7]

3. As alleged in the Complaint, Plaintiff's Representative "appeared at the [Zoning Board] Hearing, signed in with both his name and address, and stated for the record to the Zoning Board that he was appearing to express the Plaintiff's interest in the Application and the proceedings." [Note 8]

4. At the Zoning Board Hearing, the Zoning Board unanimously voted to issue the Zoning Board Decision, which granted Plaintiff a special permit under Article 12 of the Ordinance and a variance under Section 6.3 of the Ordinance. [Note 9]

5. On August 26, 2016, the Zoning Board filed the Zoning Board Decision with the City Clerk. The Zoning Board did not mail copies of the Zoning Board Decision to Plaintiff or to

Plaintiff's Representative.

6. Plaintiff alleged that he did not become aware of the issuance of the Zoning Board Decision until September 23, 2016, by which date, he acknowledged, "the statutory appeals period under [G.L. c. 40A, § 17] had expired." He claims that he contacted the office of the Zoning Board on that date to inquire as to the Zoning Board Decision's issuance. [Note 10]

7. Plaintiff's Representative alleged that, on September 23, 2016, Plaintiff advised him of the issuance of the Zoning Board Decision, and that, on September 26, 2016, he went to the office of the Zoning Board and obtained a copy of the Zoning Board Decision. He further alleged that staff in the office of the City Clerk told him, when he inquired as to the mailing of the Zoning Board Decision, "that she was not aware that copies of the Decision needed to be mailed out."

8. As noted above, on September 28, 2016, Plaintiff filed the Complaint in this action, as well as a motion for an extension of time to have commenced this case.

9. On October 5, 2016, the City Clerk issued a certification that "over twenty (20) days ha[d] elapsed with no appeal regarding such decision having been filed with the City Clerk."


Defendants have moved to dismiss this case, arguing that it was not timely filed pursuant to G. L. c. 40A, § 17, and that, as a result, this court lacks subject matter jurisdiction. Defendants also argue that the Zoning Board Decision was not arbitrary or capricious. Plaintiff disputes both such claims. Because subject matter jurisdiction is a threshold matter that must be satisfied in any case before proceeding to the merits, I shall address it first.

Pursuant to G. L. c. 40A, § 17:

Any person aggrieved by a decision of the board of appeals . . . may appeal to the land court department . . . 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.

Id. at ¶ 1. The statute further clarifies that:

The foregoing remedy shall be exclusive, notwithstanding any defect of procedure or of notice other than notice by publication, mailing or posting as required by this chapter, and the validity of any action shall not be questioned for matters relating to defects in procedure or of notice in any other proceedings except with respect to such publication, mailing or posting and then only by a proceeding commenced within ninety days after the decision has been filed in the office of the city or town clerk, but the parties shall have all rights of appeal and exception as in other equity cases.

Id. at ¶ 2.

Here, it is undisputed that Plaintiff did not commence this case (or provide the requisite notices mandated by G. L. c. 40A, § 17, ¶ 1) until more than twenty days after the Zoning Board Decision was filed with the City Clerk. Nonetheless, Plaintiff argues that his late filing of this case should be excused because the Zoning Board did not notify him of the issuance and filing of the Zoning Board Decision within the time required by G. L, c. 40A, § 15 after its issuance. G. L, c. 40A,

§ 15 provides, in relevant part, as follows:

The board shall cause to be made a detailed record of its proceedings, indicating the vote of each member of each question, or if absent or failing to vote, indicating such fact, 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 city or town clerk and shall be a public record, and notice of the decision shall be mailed forthwith to the petitioner, applicant or appellant, to the parties in interest designated in section eleven, and to every person present at the hearing who requested that notice be sent to him and stated the address to which such notice was to be sent. Each notice shall specify that appeals, if any, shall be made pursuant to section seventeen and shall be filed within twenty days after the date of filing of such notice in the office of the city or town clerk.

Id. (emphasis added). Plaintiff thus argues that, as a party in interest for purposes of G. L. c. 40A, § 11, he was entitled to receive notice of the Zoning Board Decision, and that the Zoning Board's failure to provide such notice should excuse his late filing of this case.

I disagree. While Plaintiff is correct that, pursuant to G. L. c. 40A, § 11, he was entitled to receive notice of the Zoning Board Decision, he errs in his interpretation of this statute as entailing that the Zoning Board's failure to comply with the notice requirements of the statute tolled his time to commence this case.

A similar set of circumstances was considered by the Appeals Court in Cappuccio v. Zoning Bd. of Appeals of Spencer, 398 Mass. 304 (1986). In Cappuccio, an appellant who, like here, was recognized as a party in interest for purposes of G. L. c. 40A, § 11, was not mailed a copy of a zoning board decision after it was issued, and thus argued that, due to this failure of notice, the ninety-day appeals period set forth in G. L. c. 40A, § 17, ¶ 2 -- rather than the twenty-day period set forth in G.L. c. 40A, § 17, ¶ 1 -- was applicable.

The Cappuccio court disagreed, holding that "the ninety-day appeal period in [G. L. c. 40A, § 17, ¶ 2] applies only to defects of procedure or notice 'by publication, mailing or posting' for public hearings required by [G. L. c. 40A, § 11, ¶ 1] , and not to defects of notice in the mailing of the decision required by [G. L. c. 40A, § 15]." Cappuccio, 398 Mass. at 311. [Note 11] Accordingly, because the appeal "concerns substantive claims and does not concern any defect in the notice for the public hearing, the plaintiffs were required under [G. L. c. 40A, § 17] to bring the instant action within twenty days of the filing of the board's decision with the town clerk." Id.

The court in Cappuccio, in response to objections from the plaintiff that the failure of notice of the decision deprived him of due process, properly acknowledged (as does this court) that "'[n]otice reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections,' is an 'elementary and fundamental requirement of due process in any proceeding which is to be accorded finality.'" Id. at 312 (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). However, under circumstances in which the Cappuccio plaintiff had notice of the zoning board hearing and was represented at that hearing, the court held that "it is not a denial of due process to impose upon the plaintiffs the responsibility to inquire periodically of the town clerk whether the board's decision has been filed", id. at 313, reasoning that "[d]ue process is 'flexible and calls for such procedural protections as the particular situation demands.'" Id. (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)).

Subsequent case law has acknowledged that the outcome in Cappuccio "might appear harsh." 311 W. Broadway LLC v. Zoning Bd. of Appeal of Bos., 90 Mass. App. Ct. 68 , 75 (2016). However, it is binding upon this court, which must therefore apply it to the facts at bar. Here, as in Cappuccio, there is no dispute that the Zoning Board provided the requisite notice of its public hearing to all parties required by statute to be notified. Moreover, as was the case in Cappuccio, Plaintiff was represented at the Zoning Board Hearing (by Plaintiff's Representative). Plaintiff's Representative was present for and heard the Zoning Board announce the unanimous vote for the Zoning Board Decision. He (and thus Plaintiff, by imputation) knew, or should have known, that the Zoning Board was required by statute to file its decision within fourteen days of the date of the vote in accordance with G. L. c. 40A, § 15.

Under these circumstances, it follows that Plaintiff (like the plaintiff in Cappuccio) had a "responsibility to inquire periodically of the town clerk whether the board's decision has been filed." Cappuccio, 398 Mass. at 313. Had Plaintiff's Representative or Plaintiff inquired of the City Clerk within or upon the expiration of the fourteen day statutory period (i.e., by September 9, 2016), he would have been made aware that the Zoning Board Decision had been issued and filed with the City Clerk on August 26, 2016, thus putting him on actual notice of the deadline for filing this appeal (i.e., September 15, 2016). Here, he failed to do so. Such failure is fatal to the timeliness of this appeal, and thus deprives this court of subject matter jurisdiction to entertain it.

Based upon the foregoing discussion, I FIND that this action was not timely commenced, and that the requisite notice of this action was not given in accordance with G. L. c. 40A, § 17, ¶ 1. Thus, I FIND that this court lacks subject matter jurisdiction over this case. As such, I ALLOW Defendants' Motions to Dismiss. [Note 12] This case and the Complaint are thus DISMISSED, with prejudice.

Judgment to enter accordingly forthwith.


[Note 1] Locus is located on the boundary line of Lowell and Chelmsford. The portion of the building on Locus where the drive-through window is located is in Lowell. The drive-through window was built in accordance with a building permit (covering the conversion of the building on Locus into a Popeye's Louisiana Kitchen Restaurant (the "Restaurant")) issued by the Town of Chelmsford. That conversion was completed in 2013. There is no further construction planned under the building permits at issue in this case. Chelmsford Chicken now only seeks permission to operate what it has already lawfully built.

[Note 2] Together with the Complaint, Plaintiff moved for an extension of time to have brought this appeal, which was supported by affidavits of Plaintiff and Joseph B. Shanahan, Jr. ("Plaintiff's Representative"), who had been Plaintiff's agent and representative at the Zoning Board hearing at which the Zoning Board voted to grant the Zoning Board Decision. On November 25, 2016, Plaintiff filed a supplemental affidavit signed by Plaintiff's Representative, which corrected what he described as a "scrivener's error" in his previous affidavit. The error, he explained, was that he misstated the date on which he went to the office of the Zoning Board in regard to the Zoning Board Decision as August 26, 2016 rather than September 26, 2016.

[Note 3] At a subsequent telephone conference held on December 16, 2016, the parties agreed to put discovery on hold until after this court had ruled on the parties' motions.

[Note 4] One of the issues raised by Plaintiff in this case is a procedural one. Specifically, Plaintiff objects to the fact that the Zoning Board Decision granted Chelmsford Chicken a variance, despite the fact that Chelmsford Chicken's agent who filed the Application did not tick the separate box on the Application indicating that a variance was sought. The Planning Board and the Zoning Board both interpreted the Application as seeking (in addition to site plan review and a special permit) a variance, and their public announcement was based on that interpretation. Further, pursuant to Section 11.2 of the Ordinance, the Zoning Board is designated both as the Special Permit Granting Authority and the variance granting authority for the Town of Lowell, so there is no issue as to the authority of the Zoning Board to have granted a variance. There also is no requirement in the variance for a separate application when both a special permit and a variance are sought. Moreover, the Zoning Board (in paragraph 2 of its findings of fact) clearly addresses each of the requirements for granting a variance. Thus, while I do not here rule on the merits of this case (see below), there appears to be no (procedural) impropriety with the granting of a variance here.

[Note 5] At a public hearing held on August 17, 2016, the Planning Board unanimously voted to approve Chelmsford Chicken's request for site plan review. On August 26, 2016, the Planning Board issued its decision granting Chelmsford Chicken's request for site plan review (the "Planning Board Decision"), which was filed with the Lowell City Clerk (the "City Clerk") on the same day. The Planning Board Decision is not being appealed.

[Note 6] There is no dispute that the notice provided by the Zoning Board met the statutory standard.

[Note 7] G. L. c. 40A, § 11 defines "parties in interest" as "the petitioner, abutters, owners of land directly opposite on any public or private street or way, and abutters to the abutters within three hundred feet of the property line of the petitioner as they appear on the most recent taxable list, notwithstanding that the land of any such owner is located in another city or town . . . ." Plaintiff claims to be a party in interest under this statute based on his ownership and operation of a law office at 4 Courthouse Lane in Chelmsford, MA. Defendants do not challenge this classification, even though the Summary Judgment record does not disclose whether Plaintiff is an abutter to an abutter within 300 feet of Locus.

[Note 8] Plaintiff's Representative acknowledged in his affidavit that he did not request that a copy of the Zoning Board Decision be sent to him. C.f. G. L. c. 40A, § 15 (requiring notice to, inter alia, "every person present at the hearing who requested that notice be sent to him"). However, because Plaintiff was a party in interest (as discussed above), he was entitled to notice of the Zoning Board Decision even without having affirmatively requested such notice.

[Note 9] As noted, while the Application did not specifically request a variance, the Zoning Board treated it as having done so, issued its public notice accordingly, and assessed the Ordinance criteria for variances.

[Note 10] The twenty-day appeal period expired on September 15, 2016.

[Note 11] The court explained that "[t]he clause concerning the ninety-day appeal period under [G. L. c. 40A, § 17] refers to defects of notice by 'publication, mailing or posting as required by this chapter,' and to 'such publication, mailing or posting.' The words 'publication, mailing or posting' are grouped as a unit in the clause. The first paragraph of [G. L. c. 40A, § 11] regarding the notice to be given in 'all cases where notice of a public hearing is required' is the only place in the chapter which groups together all three methods of notice: by publication, mailing or posting. Consequently, it is to defects in notice for public hearings under [G. L. c. 40A, § 11] to which [G. L. c. 40A, § 17] refers." Cappuccio, 398 Mass. at 311.

[Note 12] Accordingly, I decline to address the merits of this case -- namely, whether the Zoning Board Decision was arbitrary or capricious.