Introduction
In its previous memorandum and order denying the defendant 26 Manville, LLC's (26 Manville) motion to dismiss, the court noted that "[s]ite plan review is the unacknowledged ghost haunting land use law." Willis v. Nelson, 27 LCR 245 (2019). Confronted with a provision of the Town of Great Barrington Zoning Bylaws (bylaws) that provides that site plan review decisions could be appealed pursuant to G.L. c. 40A, §17, the court was asked to find that the appeal of the plaintiffs Donald E. Willis, Jr. and Priscilla Ann Willis (the Willises) of the site plan review decision obtained by defendant 26 Manville, LLC (26 Manville), filed 89 days after the decision was filed with the town clerk, was untimely under §17's 20-day limit for appeals.
The court held that the town, having in its bylaws incorporated §17's provisions for appeal of a site plan review decision, was obligated to have given the Willises some notice of the site plan review hearings. This left the Willises with the right to appeal under §17's 90-day deadline for challenging decisions for failure of notice, a deadline they met.
Left undecided was just what kind of notice was required of the town. Having conducted discovery, 26 Manville now places that question before the court. 26 Manville argues that whatever notice might be required, the Willises had actual notice of the site plan review meetings by virtue of receiving emails from town officials and interested neighbors setting forth the subject and dates of those meetings. Applying the analysis in Connors v. Annino, 460 Mass. 790 (2011), and Gallivan v. Zoning Bd. of Appeals of Wellesley, 71 Mass. App. Ct. 850 (2008), the court finds that the Willises' actual notice of the site plan review meetings is sufficient to have obligated them to have appealed the decision with 40 days of its filing with the town clerk.
Because they did not, their appeal is untimely, and the site plan review decision must be affirmed and the Willises' complaint dismissed.
Procedural History
The Willises filed their Verified Complaint (Complaint) on January 22, 2019. The defendant 26 Manville filed 26 Manville LLC's Motion to Dismiss the Complaint (Motion to Dismiss) on February 11, 2019. The Willises filed Plaintiffs' Opposition to 26 Manville, LLC' s Motion to Dismiss on March 22, 2019. After hearing, the Memorandum and Order Denying Motion to Dismiss was issued on May 20, 2019 (Motion to Dismiss Order). Willis v. Nelson, supra. On October 3, 3019, 26 Manville filed 26 Manville, LLC's Motion for Summary Judgment (Motion for Summary Judgment), 26 Manville, LLC's Statement of Undisputed Facts in Support of its Motion for Summary Judgment (Facts), 26 Manville, LLC's Brief of Fact and
Law in Support of its Motion for Summary Judgment, and 26 Manville, LLC's Appendix in Support of its Motion for Summary Judgment (App.). On November 5, 2019, the Willises filed the Cross Motion of Plaintiffs Donald E. Willis, Jr. and Priscilla Ann Willis for Summary Judgment and Opposition to 26 Manville's Motion for Summary Judgment (Cross Motion for Summary Judgment), Plaintiffs' Responses to 26 Manville, LLC's Statement of Undisputed Facts in Support of its Motion for Summary Judgment and Plaintiffs' Statement of Additional Undisputed Facts, Memorandum in Support of Plaintiffs' Cross-Motion for Summary Judgment and in Opposition to 26 Manville's Motion for Summary Judgment, Appendix of Plaintiffs Donald E. Willis, Jr. and Priscilla Ann Willis is Support of Motion for Summary Judgment, and the Affidavit of Donald E. Willis, Jr. in Support of Plaintiffs Donald E. Willis, Jr. and Priscilla Ann Willis Motion for Summary Judgment. On November 12, 2019, 26 Manville filed 26 Manville, LLC's Reply Memorandum in Support of its Motion for Summary Judgment and 26 Manville, LLC's Statement of Undisputed Facts in Support of its Motion for Summary Judgment. The Motion for Summary Judgment and the Cross Motion for Summary Judgment were heard on November 14, 2019, and taken under advisement. This Memorandum and Order follows.
Summary Judgment Standard
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 College v. Town of Weston, 462 Mass. 280 , 284 (2012), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991). Where the non-moving party bears the burden of proof, 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), citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see Regis College, 462 Mass. at 291-292.
Facts
The following facts are undisputed.
1. The Willises own the property at 24 Manville Street, Great Barrington, MA. Facts ¶ 2.
2. 26 Manville owns the properties at 21, 26 and 28 Manville Street, Great Barrington. Facts ¶ 1
3. 26 Manville has proposed to construct a mix-use development on the properties it owns on Manville Street, that it has named "Manville Place." Facts ¶ 6.
4. On June 27, 2018 Roxanne McCaffrey emailed Donald E. Willis, Jr. (Don), letting him know that she attended a meeting the previous night with other Manville Street residents about a potential development project on Manville Street. Roxanne forwarded Don a group email correspondence trail between the Manville Street residents (Manville Street group email). Roxanne McCaffrey is Don's ex-wife and caregiver of their daughter Katherine (Katie). App. at PB0068, PB0064-65 Dep. R. McCaffrey 28, 29.
5. On July 2, 2018, Ivan Kruh, a resident at 7 Manville Street, sent a letter via email to Chris Rembold, Stephen Bannon, and Ed May, expressing concerns the Manville Street residents had about the project. Rembold is a member of the Planning Board of Town of Great Barrington (Planning Board). Bannon is a member of the Selectboard of the Town of Great Barrington (Selectboard), and May is a member of the Town of Great Barrington (town) building department. App. at PB0082.
6. On July 26, 2018, an informal Planning Board meeting for a concept presentation of the project was held at Town Hall. Rembold sent an email to Kruh informing him that the meeting would take place on July 27, 2018 at 7:00 p.m. Kruh forwarded an email trail that contained the time and date of the meeting to the Manville Street group email. Roxanne forwarded the email trail to Don on July 26, 2018. App. at PB 0096-0097, PB0097, PB0095.
7. Roxanne attended the meeting and sent an email to Don informing him of how upset she was about the meeting and how she learned that the developers had petitioned to have the end of Manville Street closed and that they now owned that portion of the street. The email also included a group email communication which contained a link to a video recording of the entire meeting. App. at PB 0099.
8. On July 28, 2018, Don started being included in the Manville Street group email trail (previously, Roxanne was forwarding the emails to Don). App. at PB0100
9. On August 8, 2018, Rembold sent an email to Kruh noting that the first site plan meeting would most likely take place on September 13, 2018. Kruh forwarded the email to Manville residents including Don. App. at PB0104.
10. On August 30, 2018, 26 Manville formally submitted an application for site plan approval and a site plan for Manville Place to the Planning Board. Facts ¶ 8; App. at PB0004.
11. On September 5, 2018, Rembold sent an email to Kruh confirming that the town had received the Manville Place project application, that the first Planning Board meeting would take place on September 13, 2018, and that the following meeting would be on September 27, 2018. This email was forwarded to the Manville Street group email, including Don. App. at PB0106.
12. The Planning Board considered the site plan for the Manville Place project at three meetings, on September 27, 2018, October 11, 2018, and October 18, 2018. Fact ¶¶ 9.
13. The Planning Board's Site Plan Review Decision (decision) was issued and filed with the town clerk on October 25, 2018. Fact ¶ 8.
14. 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.
15. On January 22, 2019, or 89 days after the filing of the decision with the town clerk, the Willises brought this complaint to appeal the decision under G.L. c. 40A, §17, claiming that the Planning Board failed to meet the notice requirement under G.L. c. 40A, §11. Complaint.
Discussion
Section 10.5.9 of the bylaws authorizes an appeal of a site plan review decision in accordance with G.L. c. 40A, §17. Section 17 requires that an appeal be brought within 20 days of the filing of a decision with the town clerk, except that claims relating to the validity of notice, publication, mailing and posting may be challenged "by a proceeding commenced within ninety days after the decision has been filed in the office of the city or town clerk." Id. In the Motion to Dismiss, 26 Manville argued that this court lacked subject matter jurisdiction to hear the appeal
of the decision because the Complaint was filed outside of the 20-day appeal period provided in §17. The Willises argued that they were entitled to, but did not receive, notice of a hearing on 26 Manville's application for site plan approval, allowing them to file an appeal of the decision within §17's 90-day deadline, which they did. In response, 26 Manville argued that neither G.L.
c. 40A nor the bylaws establish notice requirements for proceedings on applications for site plan review, and, therefore, the Willises could not allege defective notice which enlarges their filing time to 90 days.
In denying the Motion to Dismiss, the court held as follows:
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 [v. Zoning Bd. of Appeals of Spencer, 398 Mass. 304 , 309-310 (1986)].
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.
Willis, 27 LCR at 248.
After discovery, 26 Manville has brought the Motion for Summary Judgment, arguing that the Willises had actual notice of the site plan review meetings before the Planning Board, and therefore suffered no defect in notice and were obligated to bring this complaint within 20 days of the filing of the decision with the town clerk. The Willises claim in the Cross Motion for
Summary Judgment that they did not have actual or adequate notice of the site plan meetings, and that they were entitled to, and did not receive, notice pursuant to G.L. c. 40A, §11.
Therefore, they argue, they rightfully filed the appeal of the town's decision on January 22, 2020, 89 days after the filed decision. The issue here, left open in the Motion to Dismiss Order, is whether Willises had any kind of notice of the site plan review meetings, and, if so, whether that notice was adequate to trigger an obligation to appeal the decision within 20 days.
There are no cases that the court has found that discuss a notice requirement for site plan review hearings when the local zoning bylaw provides for appeal of the site plan review decision under §17. The site plan review meetings conducted by the Planning Board were not public hearings as that term is used in §11, and did not trigger §11's notice requirement for public hearings. There is some appeal to the argument that if the bylaws require an appeal under §17, then §11's notice requirements apply. On the other hand, site plan review does not require a public hearing, and it is unfair to hold the town to having to give the notice for a public hearing required by §11 for a proceeding that is not a public hearing. The court finds that the while the Willises were entitled to notice of the site plan review, the Planning Board was not required to give notice under §11.
There is no need at this time to determine exactly what kind of notice was required. The court finds that if the Willises had actual notice of the site plan review application and the
Planning Board's public meetings, then that actual notice was sufficient to obligate them to meet §17's 20-day deadline for appealing the decision. In so finding, the court looks to the body of cases discussing when a person is on sufficient notice to be bound by the 30-day deadline under G.L. c. 40A, §15, for filing an appeal of a building permit. See Connors, 460 Mass. at 798;
Gallivan v. Zoning Bd. of Appeals of Wellesley, 71 Mass. App. Ct. at 859860; Gavin v. Haas, 22 LCR 100 , 2014 WL 904925 (2014).
In Gallivan, the Appeals Court held that a party who had adequate notice of the issuance of a building permit and did not appeal the building permit within §15's 30-day deadline is precluded from further attack on the permit. Gallivan, 71 Mass. App. Ct. at 857. The Appeals Court found that actual notice of an application for a building permit put the plaintiff on duty of inquiry, and that she had a reasonable time to inquire and bring an appeal within 30 days. Her failure to do so barred this action. Id. at 859860.
In subsequent cases, courts have held that actual notice of the building permit, even without any formal notice of an application, meant that the plaintiff was bound by the 30-day appeal requirement. In Connors, the plaintiff was an abutter of the defendant who planned to demolish an existing two-family structure and build a larger two-family structure. Connors, 460 Mass. at 791. The plaintiff was concerned that the new structure would violate city's zoning code and opposed the project. Id. at 791-792. The defendant filed applications for two building permits for the new construction and although no formal notice was sent to the plaintiff, he found out about the application by chance on his visit to the city's building department. Id. The plaintiff in that case also learned about the permit after it was issued, again without formal notice, when he visited the building department on a different matter. Id. The court held that the plaintiff had notice of the issuance of the permit and was required to file an appeal within the time frame required by the statute. Id. at 793.
In Gavin, the defendant obtained site plan review of a project for three large-scale wind turbines. Gavin, supra at *3-*5. Because this use was allowed of right, the defendant sought and obtained a building permit after the site plan was approved. Id. at *5. The plaintiffs were neighbors opposing the project; they sought review more than 30 days after the building permit was issued. Id. at *6, *13. The court held an evidentiary hearing to determine if the plaintiffs had adequate notice of the issuance of the building permit. The court held that one of the plaintiffs had notice because she had prior knowledge that the property owner was interested in building wind turbines, and, also, she had knowledge through her husband that the site plan application for the project had been submitted. Id. at *15, *17. In that case, a formal notice from the town was not necessary to establish that the plaintiff had actual notice.
Applying the logic of these two cases, it is undisputed that the Willises had actual notice of the site plan review meetings. While the town did not send out formal notice about the site plan review meetings for the project, Don learned about the development project several months prior to the meetings from his ex-wife Roxanne. Roxanne had forwarded Don trails of group email communications that took place between the residents at Manville Street, who all expressed concerns about the project. Additionally, on July 27, 2018, Roxanne sent an email to Don informing him that she had attended an informal Planning Board meeting the previous night and learned that the developers now owned the end portion of Manville Street. The email also contained a link to a video recording of the entire meeting. Furthermore, starting July 28, 2018, Don was added to the Manville Street group email communication, and was directly included in the email communication that contained information about the Site Plan application. Finally, on September 5, 2018, Don received an email from Kruh, a member of the Manville Street group email, which included an email from Rembold, the Town Planner, that noted that the application for the project had been submitted, the first planning board meeting was planned to take place on September 13, 2018, and the subsequent meeting would be on September 27, 2018. This email shows that Don had a written source that informed the time and date of the Site Plan meeting, thus establishes that he had notice of the Site Plan Review.
Thus, even more than the plaintiffs in Connors and Gavin, Don had actual notice of the site plan review meetings because he had information that directly stated the time and date of the meeting. There is actual notice when someone has "information in regard to a fact, or information as to circumstances an investigation of which would lead him to information of such fact." In re Ryan, 851 F.2d 502, 506 (1st Cir. 1988). Here, the "fact" is the site plan review and the information regarding it is the time and date of the meeting. Because Don had the information about the time and date of the site plan review meeting in his email, he had actual notice. Even if it was not a formal notice, it was enough information to prompt Don to initiate an investigation which would have led him to confirm the time and date of the meeting. Having actual notice of the site plan review, the Willises cannot now claim that there was a defect in notice entitling them to appeal the decision within 90 days. They were bound by the 20-day deadline for appealing the decision, which expired on November 14, 2018. As the Willises failed to file their complaint within this twenty-day period, their complaint must be dismissed.
Conclusion
For the foregoing reasons, the Motion for Summary Judgment is ALLOWED and the Cross Motion for Summary Judgment is DENIED. Judgment shall enter affirming the decision and dismissing the complaint with prejudice.
SO ORDERED
DONALD E. WILLIS, JR., and PRISCILLA ANN WILLIS vs. BRANDEE NELSON, MALCOLM FICK, JONATHAN HANKIN, JEREMY HIGA, PEDRO RAPHAEL PACHANO, and GARFIELD REED, as they are Members of the Planning Board of the Town of Great Barrington, and 26 MANVILLE, LLC