WILLIAM HARVEY III vs. CHELMSFORD CHICKEN LLC; WILLIAM BAILEY, DENNIS J. MCCARTHY, MICHAEL PAGLIA, VAN PECH, and JAMES PETERS, Members of the ZONING BOARD OF APPEALS OF THE CITY OF LOWELL; and the ZONING BOARD OF APPEALS OF THE CITY OF LOWELL.
MISC 16-000580
February 17, 2017
SANDS, J.
JUDGMENT OF DISMISSAL
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 City of 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]
Of even date hereof, this court has issued a Decision (the "Decision"). NOW, THEREFORE, for the reasons stated in the Decision, it is hereby:
ORDERED and ADJUDGED 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; and,
ORDERED and ADJUDGED that this court lacks subject matter jurisdiction over this case and;
ORDERED and ADJUDGED that the Defendants' Motions to Dismiss is ALLOWED; [Note 4] and,
ORDERED and ADJUDGED that this case and the Complaint are DISMISSED, with prejudice.
SO ORDERED.
FOOTNOTES
[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] Accordingly, the court declines to address the merits of this case -- namely, whether the Zoning Board Decision was arbitrary or capricious.