Home DONALD E. WILLIS, JR., and PRISCILLA ANN WILLIS v. BRANDEE NELSON, MALCOM FICK, JONATHAN HANKIN, JEREMY HIGA, PEDRO RAPHAEL PACHANO, and GERALD REED, as they are the Members of the Planning Board of the Town of Great Barrington, and 26 MANVILLE, LLC.

MISC 19-000041

May 20, 2019

Berkshire, ss.



Site plan review is the unacknowledged ghost haunting land use law. It is a planning process present in nearly every municipality's zoning bylaw or ordinance, but is nowhere mentioned in the Zoning Act, G.L. c. 40A. As a result, courts have struggled with how site plan review decisions should be treated on appeal. The general rule is that site plan review is either part of a special permit process that can be reviewed when the special permit is appealed under G.L. c. 40A, § 17, or, if it is required for an as-of-right use, it is a prerequisite to a building permit and thus can only be reviewed by appealing the building permit to the zoning board of appeals pursuant to G.L. c. 40A, § 8. See Dufault v. Millennium Power Partners, L.P., 49 Mass. App. Ct. 137 , 140-141 (2000). Seeking to clarify the uncertain status of site plan review, many towns, including the town of Great Barrington (Town), have provided in their zoning bylaws that a site plan review decision may be appealed in accordance with G.L. c. 40A, § 17. While such provisions do provide an avenue for appeal of site plan review decisions, they raise questions about how the various provisions of § 17 and the case law surrounding it apply to a site plan review appeal.

One such question is presented in this case. Defendant 26 Manville, LLC (the LLC) seeks to construct a mixed use development in the Town. Under the Town's Zoning Bylaws (Bylaws), it was an as-of-right use that required site plan review (as well as a special permit for impervious surface coverage), and the LLC sought and obtained site plan review from the Town's Planning Board (Board). The Bylaws provide that site plan review decisions may be "appealed in accordance with G.L. c. 40A, s. 17." Abutting neighbors Donald E. Willis, Jr. and Priscilla Ann Willis (the Willises) have done just that. The problem for the Willises is that they brought their appeal not within 20 days, as required by § 17, but after 89 days. The Willises claim that their appeal is timely because they did not receive notice of the site plan review hearing and are thus entitled to bring an appeal within 90 days under § 17. G.L. c. 40A, § 17, par. 2. The LLC has moved to dismiss the Willises complaint on the grounds that no notice of the site plan review hearing is required under the Bylaws or c. 40A, and therefore the Willises do not have the benefit of the 90-day appeal period for claims of defect in notice.

Thus, the LLC's motion to dismiss raises the question of what happens when a zoning bylaw provides for appeal of site plan review decisions under § 17, but does not provide for any of the notice and hearing provisions found elsewhere in G.L. c. 40A that undergird § 17 review. As set forth below, the court finds that resort to § 17 in a zoning bylaw for review of site plan review decisions necessarily imports a requirement that notice of the hearing of the site plan review be provided. The motion to dismiss will be denied.

Procedural History

The Complaint was filed on January 22, 2019. 26 Manville, LLC's Motion to Dismiss (Motion to Dismiss) was filed on February 22, 2019. [Note 1] The Motion to Dismiss was heard on March 19, 2019, and taken under advisement. The Plaintiff's Opposition to 26 Manville, LLC's Motion to Dismiss (Corrected Caption) was filed on March 22, 2019. This Memorandum and Order follows.

Standard on Motion to Dismiss

The Motion to Dismiss is brought pursuant to Mass. R. Civ. P. 12(b)(1), for lack of subject matter jurisdiction, and 12(b)(6), for failure to state a claim upon which relief can be granted. The court will consider the Motion to Dismiss under the standard for a motion to dismiss for lack of subject matter jurisdiction. A motion to dismiss for lack of subject jurisdiction unsupported by affidavit presents a "facial attack" based solely on the allegations of the complaint, which are taken as true for purposes of resolving the complaint. Hiles v. Episcopal Diocese of Massachusetts, 437 Mass. 505 , 516 n.13 (2002). The court may, however, consider affidavits and other materials outside the pleadings when ruling on a motion to dismiss for lack of subject matter jurisdiction, at which point the burden falls to the plaintiff to prove the jurisdictional facts. Hiles v. Episcopal Diocese of Massachusetts, 437 Mass. 505 , 515-16 (2002). If a party presents material outside the pleadings, the court may treat a motion to dismiss for lack of subject matter jurisdiction as a motion for summary judgment, shifting the burden to the defendant to show that there is no genuine issue of material fact. Williams v. Episcopal Diocese of Massachusetts, 436 Mass. 574 , 577 n.7 (2002). "Dismissals for lack of subject matter jurisdiction are ordinarily without prejudice because dismissal for lack of jurisdiction is typically not an adjudication on the merits." Abate v. Fremont Inv. & Loan, 470 Mass. 821 , 836 (2015), citing Bevilacqua v. Rodriguez, 460 Mass. 762 , 780 (2011).

Factual Allegations

The following facts are either undisputed or accepted as true, with inferences drawn in favor of the Willises, for the purposes of this Motion to Dismiss.

1. The Willises are the record owners of property located at 24 Manville Street, Great Barrington, Massachusetts. Complaint (Compl.) ¶ 1.

2. The LLC is the record owner of properties located at 21, 26, and 28 Manville Street, Great Barrington, Massachusetts (collectively the LLC Properties). Compl. ¶ 4.

3. The LLC seeks to demolish existing single family homes on the LLC Properties for the construction of a mixed use development (the Project). Compl. ¶¶ 13-15.

4. In connection with the Project the LLC sought site plan approval from the Board, which the Board granted in a decision dated and filed with the Town Clerk of Great Barrington on October 25, 2018 (the Decision). [Note 2] Compl. ¶¶ 23-24 & Exh. B.

5. The Willises are direct abutters to the LLC Properties and were not provided with notice of the hearing on the LLC's application for site plan approval. Compl. ¶ 25.

6. Section 10.5 of the Bylaws governs site plan review. Section 10.5.9 provides that "[a]ny decision of the Board pursuant to this Section shall be appealed in accordance with G.L. c. 40A, s. 17 to a court of competent jurisdiction." Motion to Dismiss Exh. A.


The LLC has moved to dismiss the Complaint on the grounds that this court lacks subject matter jurisdiction to hear the appeal of the Decision because the Complaint was filed outside of the 20-day appeal period provided in G.L. c. 40A, § 17. The Willises argue that they were entitled to, but did not receive, notice of a hearing on the LLC's application for site plan approval, allowing them to file an appeal of the Decision within 90 days pursuant to G.L. c. 40A, § 17. In response, the LLC argues that neither G.L. c. 40A nor the Bylaws establish notice requirements for proceedings on applications for site plan review and therefore the Willises may not allege defective notice which enlarges their filing time to 90 days.

As discussed, while "[t]he Zoning Act, G.L. c. 40A, does not specifically recognize site plans as an independent method of regulation…the use of site plan approval as a permissible regulatory tool for controlling the aesthetics and environmental impacts of land use has been recognized since Y.D. Dugout, Inc. v. Board of Appeals of Canton, 357 Mass. 25 , 31 [] (1970)." Dufault, 49 Mass. App. Ct. at 138-139 (internal citation omitted). In Dufault, the Appeals Court held that where a site plan is required in connection with an as of right use, "'the right of an aggrieved person to appeal a local planning board's site plan review decision arises only when the building permit for the propose project is issued or denied by the building inspector.'" Id. at 139, 141, quoting St. Botolph Citizens Comm. v. Boston Redev. Auth., 429 Mass. 1 , 9 (1999).

Subsequently, in Wildstar Farm, LLC v. Planning Bd. of Westwood, an unpublished decision, the Appeals Court found that where a town's bylaws provide for the appeal of planning board decisions in accordance with G.L. c. 40A, § 17, the Land Court has jurisdiction to hear the appeal of a site plan review decision for an as-of-right use. Wildstar Farm, LLC v. Planning Bd. of Westwood, Mass. App. Ct., No. 11-P-142 (Feb. 15, 2012) (Rule 1:28 Decision). The Appeals Court in Wildstar Farm, LLC stated that "[b]ecause the question of exhaustion of remedies is not itself jurisdictional, we think that in an unusual case such as this where a town has expressly instructed through its by-law that exhaustion will not be required—which is what we read the town to have done through this bylaw provision—it may not later argue in an appeal brought by an aggrieved party that in fact exhaustion of the town's own administrative remedies is required." Id. Following the Appeals Court's conclusion in Wildstar Farm, LLC, the Land Court has held that appeals of site plan review decisions may properly be brought pursuant to G.L. c. 40A, § 17, where such relief is specifically provided in the city or town's applicable zoning bylaw. Pandya v. Brushwood Nominee Trust, 22 LCR 352 , 353 (2014); M&K Partners, LLC v. Scardino, 22 LCR 355 , 355-356 (2014).

The unusual case discussed in Wildstar Farm, LLC seems now to be a more common practice, and § 10.5.9 of the Bylaws mirrors the language of the Westwood bylaw discussed in that case. For the purposes of this motion the LLC concedes that the Willises' appeal is governed by G.L. c. 40A, § 17. The issue raised in the Motion to Dismiss takes the procedural obscurity of site plan review a step farther and questions what, if any, notice requirements exist where the Bylaws do not establish any and G.L. c. 40A is silent on the issue of site plan review.

General Laws c. 40A, § 17, provides that "[a]ny person aggrieved by a decision of the board of appeals or any special permit granting authority…may appeal to the land court…by bringing an action within twenty days after the decision has been filed with the office of the city or town clerk." Id. Section 17 further provides that "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." Id. Thus, under § 17, aggrieved persons must file their appeal of a decision within 20 days of its filing with the town clerk. The only exception to this 20-day deadline is if the plaintiffs claim that there was a defect in the publication for or notice of a hearing. For such a claim, the plaintiffs have 90 days to file an appeal. Id.; Cappuccio v. Zoning Bd. of Appeals of Spencer, 398 Mass. 304 , 309-310 (1986). "[W]here no notice has been provided under G.L. c. 40A, § 17, the ninety-day statute of limitations does not begin to run until the aggrieved party becomes aware of the project to which he objects." Kramer v. Zoning Bd. of Appeals of Somerville, 85 Mass. App. Ct. 186 , 195 (2005).

The Decision was filed on October 25, 2018. The Complaint was filed 89 days later on January 22, 2019. The LLC argues that the Willises cannot take advantage of the longer 90-day filing deadline because no notice of a hearing on the LLC's application for site plan review was expressly required in the Bylaws or c. 40A, and there can be no defect in notice where none is required. The 90-day filing deadline for appeals under § 17 is strictly enforced and absent a defect in notice as alleged by the Willises, their appeal must be dismissed as untimely. See Calnan v. Planning Bd. of Lynn, 63 Mass. App. Ct. 384 , 390 (2005).

The Willises do not dispute that there are no notice requirements for site plan review in the Bylaws or § 17, but argue that by incorporating a right of appeal under § 17, the Bylaws include an implicit right for interested parties to be heard in proceedings on site plan review, notice of which is necessary for participation. The Willises direct the court's attention to Kramer, where, in the context of a special permit appeal, the Appeals Court stated that a "critical feature of the statutory zoning scheme is the opportunity for interested parties to be heard regarding applications for special permits. The design of the zoning law requires 'such full notice as shall enable all those interested to know what is projected and to have opportunity to protest, and as shall insure fair presentation and consideration of all aspects of the proposed modification.'" Kramer, 85 Mass. App. Ct. at 192, quoting Rousseau v. Building Inspector of Framingham, 349 Mass. 31 , 36–37 (1965).

Section 17 provides a right to aggrieved persons, including certain interested parties and applicants who have been denied the relief that they sought, to appeal decisions of boards of appeals or other special permit granting authorities. Section 10.5.9 of the Bylaws, by incorporating § 17, gives the Willises the right to appeal the Decision. Such a right of appeal is illusory if aggrieved parties like the Willises have no notice and therefore no knowledge of the site plan review proceeding by which they may aggrieved. Moreover, notice would give them the opportunity to participate in the site plan review proceedings themselves, with the possibility of the board's sufficiently addressing their concerns that they would no longer be aggrieved and no appeal would be necessary. See id. at 196-197 (noting the "continuum of possible outcomes at a hearing," including conditions addressing abutters' concerns). It is an "elementary rule of statutory construction that a statute should not be read in such a way as to render its terms meaningless or superfluous," Bynes v. School Comm. of Boston, 411 Mass. 264 , 268 (1991), and courts should "avoid[] a construction which would negate legislative intent or defeat its intended utility." Milton Commons Assocs. v. Board of Appeals of Milton, 14 Mass. App. Ct. 111 , 117 (1982). In the circumstances of this case, a construction of § 10.5.9 of the Bylaws and § 17 which gives the Willises a right to appeal a planning board decision on site plan review, but no notice of the hearing on the application or of the decision, would defeat the intended utility of such an appellate right.

Therefore, § 10.5.9 of the Bylaw must be interpreted to provide not only for an appeal of site plan review decisions under § 17, but also to require notice to interested parties of the site plan review proceeding. This means that the Willises may bring an action within 90 days of the filing of the Decision with the Town Clerk alleging defects in or lack of notice. G.L. c. 40A, § 17. The only claim available to the Willises on appeal is that the Decision is invalid on the grounds that the lack of notice deprived the Board of jurisdiction over the site plan application; they may not raise any challenges to the merits of the Decision. Cappuccio, 398 Mass. at 310.

It is not necessary at this stage of the litigation to determine what notice is required under the particular marriage of § 17 and § 10.5.9 that the Bylaws present. The court has accepted as true for the purposes of this motion the Willises' allegation that they did not receive notice of the site plan review proceeding. It remains to be seen if, in fact, the Willises did receive any notice of the proceeding or knew or should have known of the Board's hearing, and what should constitute proper notice under these circumstances. Here, it is only necessary to find that, to effectuate the intent of § 17, the Willises were required to receive some form of notice and they have alleged that they did not. Having alleged a defect in notice, the Willises properly brought this appeal within the 90-day limitation period set forth in § 17, and the Motion to Dismiss must be denied.


For the foregoing reasons, 26 Manville, LLC's Motion to Dismiss is DENIED.



[Note 1] A copy of the Town of Great Barrington Zoning Bylaw is attached to the Motion to Dismiss as Exhibit A.

[Note 2] As discussed, the LLC also obtained a separate special permit for an increase in impervious surface. The Willises have appealed that special permit a separate case, Land Court case no. 18 MISC 000604 (RBF).