JOHN BARRETT and EMILY HOARD vs. TOWN OF BRAINTREE, MARK BOGAN, 144 MPB NOMINEE TRUST, ROBERT KELLY

John Barrett and Emily Hoard (Barrett and Hoard) have brought this action challenging a decision of the Town of Braintree Planning Board. They claim that, by its decision, the Planning Board effectively rezoned the parcel owned by the private defendants. Barrett and Hoard's complaint runs afoul of two principles of subject matter jurisdiction that the court does not have discretion to ignore. The first is that challenges to zoning decisions cannot be brought under G.L. c. 240, §14A, but must be brought under G.L. c. 40A, §17, the provision of the General Laws governing such appeals. The second is that, under G.L. c. 40A, §17, a notice of the appeal has to be filed with the town clerk within twenty days of the challenged decision having been filed with the clerk. It is undisputed that Barrett and Hoard filed their complaint with the Braintree town clerk on the twenty-first day. The defendants have moved for summary judgment, and the court has no choice but to allow the motion and dismiss this action for lack of subject matter jurisdiction.

Procedural History

The plaintiffs Barrett and Hoard filed their complaint on March 10, 2020. Defendants Mark Bogan, Trustee of the 144 MPB Nominee Trust (Bogan), and Robert Kelly filed an Answer on April 9, 2020. Defendants filed a Joint Motion for Summary Judgment (Summary Judgment Motion), Joint Request for Virtual/Videoconference Hearing on Defendants' Motion for Summary Judgment, a Memorandum in Support of Joint Motion for Summary Judgment, a Statement of Material Facts, and an Exhibit Appendix on May 18, 2020. Barrett and Hoard filed a Response to the Defendants' Joint Motion for Summary Judgment and a Response to Defendants' Memorandum in Support of Joint Motion for Summary Judgment on June 17, 2020. The Town of Braintree filed a Reply to Plaintiff's Response to Defendant's' Joint Motion for Summary Judgment on June 24, 2020. On June 29, 2020, a Case Management Conference Joint Statement was filed. On July 1, 2020, the case management conference and hearing on the Summary Judgment Motion were held via telephone. The parties represented and agreed that the Town of Braintree Town Hall was not closed at any point during the twenty-day period following the filing of the decision with the office of the Town of Braintree Town Clerk. The Summary Judgment Motion was then taken under advisement. This Memorandum and Order follows.

Summary Judgment Standard

Generally, 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 a 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 draws "all logically permissible inferences" from the facts in favor of the non-moving party. Willits 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).

Facts

The following facts are undisputed:

1. Barrett and Hoard's properties are located at 196, 202, and 206 Allen Street, and are identified as the three rectangular parcels on Allen Street that are colored in green and adjacent to the parcel with a long structure on it in the maps attached to the Affidavit of John Goldrosen. Defs.' SOF ¶ 1, Exh. B.

2. Bogan's project site is located at 144 Allen Street, and is outlined in yellow in the maps attached to the Affidavit of John Goldrosen as Exhibits 1 and 2 (project site). Defs.' SOF ¶ 2, Exh. B.

3. The Braintree Planning Board (Planning Board) granted Bogan a special permit and site plan approval in a decision dated November 12, 2019 and filed in the office of the town clerk on February 20, 2020 (decision). Defs.' SOF ¶ 3, Exh. A.

4. Barrett and Hoard filed their complaint with the Land Court on March 10, 2020. Exh. A.

5. The relief sought by Barrett and Hoard is to nullify the Planning Board's special permit and site plan approval in the decision. Compl., Prayer for Relief ¶¶ 1–2.

6. Barrett and Hoard did not provide notice to the town clerk before the close of business on March 11, 2020, that an appeal had been filed with the Land Court. Exh. C, ¶ 5.

7. Barrett and Hoard gave written notice to the town clerk on March 12, 2020 that an appeal had been filed when it caused a constable to serve the summons and complaint on the Office of the Town Clerk. Exh. C at ¶ 3.

8. The office of the town clerk had no knowledge that an appeal had been filed until it received a copy of Barrett and Hoard's written notice on March 12th. Exh. C, ¶¶ 4–5.

9. All parties represent and agree that the Town of Braintree Town Hall was not closed at any point during the twenty-day period following the filing of the decision with the office of the town clerk.

10. Barrett and Hoard's complaint does not seek to challenge the validity of a municipal ordinance, by-law, or regulation which purports to restrict or limit the present or future use, enjoyment, improvement or development of their land, or seek a determination of the extent to which any such municipal ordinance, by-law, or regulation affects a proposed use, enjoyment, improvement, or development of their land. Defs.' SOF ¶ 8.

11. Barrett and Hoard's complaint does not name the Planning Board as defendants. Defs.' SOF ¶ 9.

Discussion

The Summary Judgment Motion challenges the subject matter jurisdiction of the Land Court on two grounds. It first contends that the Land Court lacks jurisdiction, because the complaint relies solely on G.L. c. 240, §14A, to challenge the validity of the decision to issue a special permit. Second, the defendants argue that even if the complaint had cited G.L. c. 40A, §17, as the basis for the appeal, that Barrett and Hoard failed to file a notice of the appeal with the Braintree town clerk before the statutory twenty-day deadline expired, thereby depriving the Land Court of jurisdiction under G.L. c. 40A, §17.

I. Appeal under G.L. c. 240, §14A

Barrett and Hoard filed this action pursuant to G.L. c. 240, §14A (§14A). The relief sought by Barrett and Hoard is to nullify the decision's special permit and site plan approval by the Planning Board. Compl., Prayer for Relief ¶¶ 1-2. Section 14A does not provide the Land Court with subject matter jurisdiction to consider an appeal of a special permit, where the plaintiffs have failed to use the available and exclusive remedy of G.L. c. 40A, §17 ("[t]he foregoing remedy shall be exclusive" ). Section 14A enables the petitioner to seek a "determination as to the validity of a municipal ordinance, by-law or regulation" that "purports to restrict or limit the present or future use, enjoyment, improvement or development of such land." Id. "The statute authorizes the Land Court to render a declaratory judgment on the validity of a zoning ordinance by-law and the extent to which it affects the land of a petitioner." Pitman v. City of Medford, 312 Mass. 618 , 620 (1942). "The evil to be remedied is a situation where someone may be forced to invest in land and then subsequently find out that there are restrictions." Whitinsville Retirement Soc'y, Inc. v. Town of Northbridge, 394 Mass. 757 , 763 (1985).

A plaintiff may not seek a §14A determination to challenge the validity of a zoning decision, in lieu of the remedies available under G.L. c. 40A, §17. Whitinsville Retirement Soc'y, Inc., 394 Mass. at 763 (Land Court lacked jurisdiction to determine the validity and effect of plaintiff's special permit, as section 14A does not permit plaintiff "to sidestep an appeal" that could be brought under c. 40A); Hallock v. Zoning Bd. of Appeals of Chatham, 2011 WL 3684698, *3 (2011) (special permit appeal "is proper under G.L. c. 40A, §17, but is beyond the scope of G.L. c. 240, §14A because the Land Court is without jurisdiction to evaluate the validity of the special permit under the latter statute."). Barrett and Hoard argue that they are claiming that the Planning Board in its decision improperly rezoned the project site, and that they are using §14A to challenge that improper rezoning. But this action is not a challenge to rezoning; it is an appeal of a special permit and the relief sought is the annulment of the Planning Board decision to grant the special permit. Therefore, the action was required to be brought under G.L. c. 40A, §17. Because Barrett and Hoard instead brought the action under §14A, the Land Court lacks jurisdiction to consider this action.

II. Failure to Give Timely Notice to the Town Clerk

Even if Barrett and Hoard were to amend the complaint to bring a claim under G.L. c. 40A, §17 (§17), the Land Court would still lack subject matter jurisdiction because Barrett and Hoard failed to give timely notice of the action to the Braintree town clerk. An appeal under §17 must be brought "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. Timely receipt of notice by a city or town clerk is a jurisdictional requirement that is not waivable and "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), citing Konover Mgmt. Corp. v. Planning Bd. of Auburn, 32 Mass. App. Ct. 319 , 322-323 (1992). "Failures in meeting the twenty-day deadline are not forgiven." Bingham, 52 Mass. App. Ct. at 569. "The purpose of the notice provision is to give interested third persons at least constructive notice of the appeal." Costello v. Board of Appeals of Lexington, 3 Mass. App. Ct. 441 , 443 (1975).

Courts have somewhat relaxed the statutory requirement of notice to the town clerk by allowing satisfaction of the requirement as long as the clerk has notice of the action, not necessarily a copy of the complaint. Konover Mgmt. Corp., 32 Mass. App. Ct. at 324. "The key element of . . . relaxing the rigors of strict compliance with the zoning appeal statute is that within the mandatory twenty-day period the clerk is actually notified that an appeal - i.e., a complaint has in fact been timely filed." Id. at 324-325. In these circumstances, "[t]he statutory purpose is then served, because 'interested third parties [can] be forewarned [by the clerk] that the zoning status of the land is still in question.'" Id. at 325, citing Carr v. Board of Appeals of Saugus, 361 Mass. 361 , 363 (1972). In Garfield v. Board of Appeals of Rockport, 356 Mass. 37 , 39 (1969) the Supreme Judicial Court held that the statutory requirement of notice to the town clerk was satisfied by delivering a notice of the action and a copy of the complaint to the clerk at her home after the close of the clerk's office on the twentieth day because the statute does not specifically make reference "to the town clerk's office." The court thus reasoned it is the state of the clerk's knowledge that is important, not the physical location of the papers. Id. In Bingham, even though "the notice of action and complaint were given to the mayor only fifteen minutes after the clerk's office closed, neither the clerk nor anyone in the clerk's office was aware that an appeal had been commenced until, at best, the following morning," so "the intended purpose of providing third persons with notice of the appeal had not been accomplished within the time limited." 52 Mass. App. Ct. at 570-571. When plaintiffs timely filed a complaint and copies were mailed to the ZBA members individually, to the zoning board chairman at town hall, and the town hall planner mentioned it to the assistant town clerk in a conversation that occurred before the deadline had passed, the Appeals Court determined that even when no notice had been filed by the deadline, as long as the assistant town clerk had knowledge that an appeal had been filed, it was sufficient under the statute because "it is the state of the clerk's knowledge that controls." Hickey v. Zoning Bd. of Appeals of Dennis, 93 Mass. App. Ct. 390 , 394 (2018).

Here, there is no dispute that Barrett and Hoard failed to meet the twenty-day deadline for filing with the town clerk required by §17. The Planning Board granted Mark Bogan certain zoning relief in a decision dated November 12, 2019, that was filed in the office of the town clerk on February 20, 2020. Defs.' SOF ¶ 3, Exh. A. The twenty-day deadline for an appeal under §17 was March 11, 2020. Barrett and Hoard filed their complaint with the Land Court on March 10, 2020, which was timely, but gave written notice to the town clerk on March 12, 2020, the twenty-first day, when it caused a constable to serve the summons and complaint on the office of the town clerk. Exh. A, Exh. C at ¶ 3. All parties represent and agree that the Town of Braintree Town Hall was not closed at any point during the twenty-day period following the filing of the decision with the office of the town clerk. This case is not analogous to Garfield or Hickey because there is no evidence whatsoever that the town clerk had any notice during the twenty-day deadline, and "it is the state of the clerk's knowledge that controls." Hickey, 93 Mass. App. Ct. at 394. March 12, 2020, was one day too late, under §17's strict twenty-day requirement, to file with the town clerk. [Note 1] Therefore, the Land Court lacks jurisdiction to consider this action, and the complaint must be dismissed.

Conclusion

For the foregoing reasons, the Summary Judgment Motion is ALLOWED. Judgment shall enter dismissing the complaint without prejudice.

SO ORDERED