JACKSON WOODS INVESTMENTS, LLC, Plaintiff, v. THE TOWN OF HOLDEN PLANNING BOARD, and ROBERT RICKER, MICHAEL KRIKONIS, OTTO LIES, JAMES PARKER, NANCY KIELINEN, JOHN MICHALAK and SCOTT CARLSON as they are Members of the Holden Planning Board, Defendants

INTRODUCTION

This action was commenced by plaintiff Jackson Woods Investments, LLC ("the LLC") with the filing of a complaint pursuant to G. L. c. 41, § 81BB, on September 29, 2020, in which the LLC appealed from a decision of the defendant Town of Holden ("the Town") Planning Board's ("the Board") September 11, 2020 decision disapproving an application ("the Application") for amendment to a Definitive Subdivision Plan ("the Plan") previously approved by the Board on August 21, 2018. The Application sought, among other things not relevant to this appeal, to amend Condition No. 5 to the Plan by limiting the required third-party subdivision inspection costs to those required by the Board's regulations, i.e., two and one-half percent of the bond amount as outlined in the Town's Subdivision Control Regulations. The Board filed Defendants' Motion To Dismiss Plaintiff's Complaint ("the Motion") on November 2, 2020, asserting that the LLC's failure to appeal Condition No. 5 when the Plan was approved in 2018 was fatal to its present claim for relief. Plaintiff's Opposition To Defendants' Motion To Dismiss was filed on November 4, 2020, the Board's reply thereto was filed on November 16, 2020 and a videoconference hearing was held on November 25, 2020. Because of the LLC's failure to appeal Condition No. 5 within 20 days of the Board's 2018 decision, this court lacks subject matter jurisdiction over its current appeal and the Motion will, therefore, be ALLOWED.

THE ALLEGATIONS OF THE COMPLAINT [Note 1]

The Plan was originally approved by the Board on August 21, 2018. Complaint ¶ 15. Condition No. 5 of that approval states as follows:

In lieu of the Subdivision Roadway and Infrastructure inspection fee of 2.5% of the bond amount as outlined in the Holden Subdivision Control Regulations the Applicant is responsible for funding a third party inspector for the installation of infrastructure, utilities, and stormwater systems. The inspector will be onsite for all site preparation and infrastructure. The frequency of inspections will be at the discretion of the Department of Public Works (DPW) and the Inspector must provide inspectional reports to the DPW Engineering Division.

The Applicant may submit the qualifications for three inspectors to the Town. These expenses are at the sole responsibility of the Applicant and are in lieu of the Subdivision Control Regulation inspection fees.

Complaint Ex. C, Condition No. 5. The Board's 2018 approval was filed with the Town Clerk on September 4, 2018. Complaint Ex. C. On September 25, 2018, the Town Clerk certified that twenty days had elapsed since the filing of the Plan and that no appeal had been filed with the Town Clerk. Complaint Ex. C. The court takes judicial notice that the Plan was recorded in the Worcester County Registry of Deeds on October 19, 2018 at Plan Book 938, Page 68. Mass. G. Evid. § 201 (2020).

On or about November 14, 2019, the LLC submitted the Application to the Board along with the necessary paperwork and filing fee. Complaint ¶ 12. Among other things, the Application sought an amendment reducing the required subdivision inspection costs to no more than two and one-half percent of the bond amount consistent with the Board's published subdivision regulations. Complaint ¶ 13. Pursuant to G. L. c. 41, § 81W, a public hearing on the Application was held on January 14, 2020, continued and extended from time to time, and then closed on August 25, 2020. Complaint ¶ 14. On that date, the Board voted to approve one and disapprove two of the three requested subdivision amendments. Complaint Ex. B. With respect to the LLC's requested amendment to Condition No. 5, the Board stated:

On a motion made by Robert Ricker and seconded by Michael Kirkonis, Otto Lies, James Parker, Nancy Kielinen, John Michalak, and Scott Carlson, unanimously voted 7-0 to deny this request due to the following: The scope of work on this eighty-seven (87) lot subdivision site is significant, and beyond the capabilities of the DPW to adequately inspect. The Applicant has the ability to control the costs of third party inspection by performing proper project management.

The Town has worked with the Applicant to limit the time the third party inspector(s) are onsite, in an attempt to minimize the costs of the inspections. DPW reported that, very rarely are inspectors onsite for "all site preparation and infrastructure."

Finally, the Applicant is being asked to provide the same information regarding the design, manufacture, and/or specifications as numerous other projects that have been successfully built over the past number of years, in accordance with similar conditions of approval. The Town's interest is to ensure that all infrastructure is properly designed and constructed, such that it will be suitable for acceptance by the Town.

Id. The Board's decision was filed with the Town Clerk on September 17, 2020. Id.

DISCUSSION

The LLC brought the present appeal of the Board's action to this court pursuant to G. L. c. 41, § 81BB, of the subdivision control law. That statute provides in pertinent part:

Any person, whether or not previously a party to the proceedings, or any municipal officer or board, aggrieved ... by any decision of a planning board concerning a plan of a subdivision of land ... may appeal to the superior court for the county in which said land is situated or to the land court; provided, that such appeal is entered within twenty days after such decision has been recorded in the office of the city or town clerk ... and notice of such appeal is given to such city or town clerk so as to be received within such twenty days.

G. L. c. 41, § 81BB. In interpreting this provision of the subdivision control law, the Supreme Judicial Court has recognized the usefulness of decisions interpreting the Zoning Act, G. L. c. 40A. [Note 2] Case law under both statutes confirms that the filing of the appeal with the court and notice to the city or town clerk of that filing within twenty days are jurisdictional prerequisites to the prosecution of an appeal. Calnan v. Planning Bd., 63 Mass. App. Ct. 384 , 388-389 (2005) (interpreting G. L. c. 41, § 81BB); Chiuchiollo v. Hopedale Zoning Bd. of Appeals, 84 Mass. App. Ct. 1111 , 2013 Mass. App. Unpub. LEXIS 923 at *4 (interpreting G. L. c. 40A, § 17). "Timely commencement of an appeal ... is a condition of maintaining it, 'a condition sine qua non,' and is a requirement this court has 'policed in the strongest way.'" Cappuccio v. Zoning Bd. of Appeals, 398 Mass. 304 , 312 (1986) (G. L. c. 40A appeal) quoting Pierce v. Board of Appeals of Carver, 369 Mass. 804 , 808, 811 (1976). Failure to meet that deadline has resulted in the dismissal of any number of cases over the years. See, e.g., O'Blenes v. Zoning Bd. of Appeals of Lynn, 397 Mass. 555 (1986) (affirming dismissal of G. L. c. 40A appeal filed twenty one days after decision filed with the city clerk); Zitzkat v. Zoning Bd. of Appeals of Truro, 77 Mass. App. Ct. 1103 , 2010 Mass. App. Unpub. LEXIS 687 (affirming dismissal of G. L. c. 40A appeal not filed within twenty days); Burke v. Planning Bd. of Leicester, 74 Mass. App. Ct. 1110 , 2009 Mass. App. Unpub. LEXIS 711 (affirming dismissal of G. L. c. 41, § 81BB, appeal not filed within twenty days); Franklin v. Town of Danvers, 73 Mass. App. Ct. 1110 , 2008 Mass. App. Unpub. LEXIS 660 (affirming dismissal of G. L. c. 40A appeal where plaintiffs failed to timely file notice of their appeal with the town clerk); Calnan v. Planning Bd., supra (affirming dismissal of G. L. c. 41, § 81BB, appeal not filed within twenty days).

Here, the Board contends that, Condition No. 5 having been imposed as part of the original approval filed with the town clerk on September 4, 2018, any appeal of that condition was required to be brought within twenty days of that date and cannot be collaterally attacked by way of the LLC's later request to modify the original approval brought pursuant to G. L. c. 41, § 81W. The LLC contends that, by its express terms, § 81W [Note 3] allows it do precisely what it has done here - file an application to modify the original approval, give notice under the statute and hold a public hearing on the application - and that § 81BB then provides an avenue of appeal to it as a party aggrieved by the Board's action on that application.

Neither side has brought to the court's attention any case law directly on point. The Board, however, relies on case law developed under G. L. c. 40A precluding attempts by an applicant to later set aside conditions originally imposed by the board and not immediately appealed by the applicant. Four cases most closely resemble the situation presented here: Iodice v. Newton, 397 Mass. 329 (1986); Klein v. Planning Board of Wrentham, 31 Mass. App. Ct. 777 (1992); Bonfatti v. Zoning Bd. of Appeals, 48 Mass. App. Ct. 46 (1999); and Chiuchiollo, supra.

In Iodice, the plaintiff obtained a special permit in 1977 that permitted him to construct apartment buildings but conditioned the grant on ten percent of the units being made available for subsidized housing. The plaintiff completed construction in 1979 and, in 1980, commenced an action in Superior Court seeking a declaration that the condition was invalid. Describing the issue before it as whether the action was an appeal from a decision of the board, in which case it was untimely, or whether it was instead an independent action challenging the validity of the statute and ordinances on which the board relied, the court concluded that "[t]he present action is no less an appeal under c. 40A, § 17, because it takes the form of a G. L. c. 231A, declaratory judgment action." 397 Mass. at 333. "Regardless of its form, the plaintiff's action is an appeal within the meaning of G. L. c. 40A, § 17, and it must fail because it was not timely brought." Id. at 334. As the Iodice court noted, its decision recognized the Legislature's intent "that affected parties should be able to rely on the decisions of boards of appeals and special permit granting authorities which have not been challenged within a limited period." Id.

Subsequently, in Klein, the planning board approved a special permit on November 5, 1986 for the construction of an office and manufacturing facility conditioned, among other things, on a designated area being "left in its present natural state." 31 Mass. App. Ct. at 778. The plaintiff did not appeal that decision, but subsequently filed three requests to modify the special permit by eliminating that condition in January 1987, October 1987 and December 1988, each of which was denied by the board and subsequently appealed to the Superior Court. The Superior Court ordered that the open space condition be annulled. That decision was reversed on appeal:

Having failed to take a timely appeal from the board's action in granting the special permit with conditions, and having gone ahead and constructed the facility to which the special permit refers, the plaintiff did not have the right to challenge the validity of one of the conditions in a proceeding which, regardless of its form, was the equivalent of an appeal. See Iodice v. Newton, 397 Mass. 329 , 333, 491 N.E.2d 618 (1986). To the extent that it was an attack on the authority of the board to impose the condition, the plaintiff's pursuit of the application for modification, first administratively and then through the courts, is, for practical purposes, the equivalent of an appeal.

31 Mass. App. Ct. at 778. The court rejected the plaintiff's attempt to distinguish Iodice on the grounds that his appeal was from the denial of his application for a modification, not from the original imposition of conditions, based on material changes in the conditions on which the special permit was based. [Note 4] Among other things, a change in circumstances arising from the plaintiff's subsequent subdivision of his land, even if regarded as material, would not entitle the plaintiff to removal of the condition: "It is a well-established principle that one may not put himself in a more advantageous situation for zoning purposes by his own actions..." Id. at 779.

In Bonfatti, the plaintiff received approval of a special permit for a cluster development with the proviso that lot 1 on the plan would be designated as "not a building lot" because of a dimensional nonconformity, and that designation was included on the definitive plan approved alongside the special permit in November 1995. In May 1996, plaintiff applied to the building inspector for a building permit for lot 1, then appealed to the zoning board pursuant to G. L. c. 40A, § 8, when his application was denied, then appealed to the Superior Court pursuant to G. L. c. 40A, § 17, from the zoning board's decision upholding the building inspector. On appeal from a decision of the Superior Court ordering that the building permit be issued, the zoning board argued for the first time that the court was without jurisdiction, no appeal having been taken by the applicant from the original approval of the special permit. The Appeals Court agreed:

The symmetry of issues between the decision of the planning board and that of the building inspector leads this court to the conclusion that "however the plaintiff characterizes them, his contentions to the [zoning board], to the motion judge, and to this court are in essence that the ... condition [that lot 1 could not be a building lot] was invalid when originally imposed [by the planning board]." Klein v. Planning Bd. of Wrentham, 31 Mass. App. Ct. 777 , 780, 583 N.E.2d 892 (1992). ... Properly construed as an appeal from the planning board's November, 1995 decision to approve the definitive plan on the condition that lot 1 was not a building lot, Bonfatti's complaint for judicial review, filed a year after the planning board's decision, was untimely.

48 Mass. App. Ct. at 49-50.

Finally, in Chiuchiollo, the plaintiffs applied for and received a special permit and a variance to tear down and rebuild a lawfully nonconforming two-family dwelling in 2007, one or both of which contained a condition imposing an ownership restriction. 2013 Mass. App. Unpub. 923 at *2 n.2. In 2008, the plaintiffs applied for an amendment to the variance, arguing that the ownership restriction violated the applicable zoning bylaw. The board denied their application and, on appeal and after cross-motions for summary judgment, the trial judge remanded the matter to the board, stating that the imposition of the ownership restriction was "a matter for local-not judicial-determination." Id. at *3 n.4. On further appeal, the Appeals Court reversed, finding that the Superior Court did not have jurisdiction over the plaintiffs' appeal from the denial of their requested amendment, the plaintiffs having failed to appeal within twenty days of the 2007 decision imposing the condition. Citing to Iodice and the language of G. L. c. 40A, § 17, the Appeals Court concluded that "[h]ere, the § 17 twenty-day clock began ticking with the board's filing of its 2007 zoning decision (which contained the alleged ownership restriction to which the Chiuchiollos object), not its subsequent decision on the Chiuchiollos' 2008 application for an amendment." Id. at *4.

These cases compel this court to conclude that it does not have jurisdiction over this appeal: the condition about which the LLC complains was imposed in the original approval of its subdivision plan, from which it took no appeal; and there has been no material change in circumstances since the original approval, as confirmed by counsel for the LLC at the hearing on this motion. As a result, this court does not have jurisdiction over a subsequent action collaterally challenging the imposition of that condition. Bonfatti is most closely on point. While the appeal at issue there was pursuant to G. L. c. 40A, § 17, the Appeals Court rejected Bonfatti's "attempt[] to avoid the statutorily established avenue for review [i.e., G. L. c. 41, § 81BB] by asking the building inspector to overrule the planning board's prior decision." 48 Mass. App. Ct. at 49. The LLC's argument that its current challenge to Condition No. 5 is permitted as a request for a modification, here under § 81W, is the same argument made and rejected in Klein.

It also bears observing that there may be strategic considerations at play in determining whether to file an appeal from the initial imposition of a condition along with a grant. As noted in the context of G. L. c. 40A appeals, (1) the applicant runs the risk of a remand to the board if its attack on the condition is successful, and (2) at least with respect to variances, the applicant cannot proceed with an appeal while simultaneously exercising the variance. M.R. Healy, et al., Massachusetts Zoning Manual, § 11.4.3 at 11-22?11-23, (MCLE, Inc. 6th ed. 2017 & Supp. 2019). The same considerations are at play under the subdivision control law. Collings v. Planning Bd. of Stow, 79 Mass, App. Ct. 447 (2010) provides an example of a matter remanded to the local board for reconsideration after the plaintiffs successfully challenged the imposition of a condition. Because, under the subdivision control law, the local board does not endorse its approval on a plan until the twenty-day appeal period has run with no appeal, G. L. c. 41, § 81V, an appeal by the applicant would be expected to impact its ability, among other things, to obtain construction financing and building permits, as a practical matter preventing development while the appeal is pending. The LLC having determined not to exercise its right of appeal in 2018, for whatever the reason, cannot use the vehicle of § 81W now to avoid the impact of Iodice and its progeny.

CONCLUSION

For the foregoing reasons, the Motion is ALLOWED and this matter will be DISMISSED WITH PREJUDICE pursuant to Mass. R. Civ. P. 12(b)(1) and 12(b)(6).

Judgment to enter accordingly.

SO ORDERED.