Roth v. Misch (Mass. App. 2019).docx.docBARRY ROTH
v.
CAROLYN MISCH1 & others.2
19-P-485
COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
November 25, 2019
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may
not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views
of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff appeals from a judgment entered in the Superior Court that allowed the defendants' motion to dismiss pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974).
Specifically, the plaintiff challenged the approval by the planning board of Northampton (board) of a subdivision plan amendment authorizing affordable housing units on Burts Pit Road
(Burts Bog subdivision) in Northampton. A Superior Court judge dismissed the complaint by a margin endorsement, adopting the defendants' argument that the plaintiff's failure to provide
timely notice of the action to the town clerk as required by G. L. c. 41, § 81BB, deprived the Superior Court of
Page 2
jurisdiction. The plaintiff's principal claim on appeal is that notice of the hearing before the board was defective and that he therefore had ninety days to file notice of the civil
action with the town clerk pursuant to G. L. c. 40A, § 17, rather than the twenty days prescribed by G. L. c. 41, § 81BB. We affirm.
Background. We summarize the allegations in the amended complaint, relevant public records, and items appearing in the record of the case. See Iannacchino v. Ford Motor Co.,
451 Mass. 623, 631 n.14 (2008). On June 26, 2018, developer Emerson Way, LLC sought permission from the board to modify a special permit by allowing six of eight authorized affordable
housing units to be transferred from Emerson Way to Burts Pit Road. The board scheduled a public hearing on the proposal for July 26, 2018, sent notice to abutters on Emerson Way, and
posted notice of the hearing on its website. The public hearing was held and several citizens attended and spoke in opposition to the proposal. The board approved the modification on
July 26, 2018, and, on August 7, 2018, issued a public notice that it had approved the "Emerson Way Subdivision Plan" conditioned on building permits being obtained for the affordable
housing units and "pending termination of the twenty day appeal period."
Two days after the hearing, on July 28, 2018, the plaintiff, an abutter to the Burts Bog subdivision, learned of the modified plan from a newspaper article. He contacted the
Page 3
board and requested that the hearing be reopened. On August 13, 2018, the plaintiff was informed that the hearing would not be reopened, but that he had a right to appeal in the Superior
Court. By e-mail dated August 22, 2018, the plaintiff notified defendant Carolyn Misch, Northampton's senior land use planner and permits manager, that he intended to appeal the amended
"Emerson Way decision." The complaint was filed in the Superior Court on August 27, 2018. A copy of the complaint and civil action cover sheet was filed with the Northampton town clerk
the following day, August 28, 2018.
On December 27, 2018, the defendants filed a motion to dismiss the complaint pursuant to Mass. R. Civ. P. 12 (b) (1) for lack of subject matter jurisdiction, arguing that the
"plaintiff's notice of appeal was filed in the Northampton City Clerk's office after the expiration of the twenty day statute of limitations set forth . . . in G. L. c. 41, § 81BB."
After a hearing, the judge entered a margin order dismissing the case "essentially for the reasons set forth in the defendants' memorandum of law." This appeal followed.
Discussion. "We review the allowance of a motion to dismiss de novo," accepting the allegations in the complaint as true and drawing all reasonable inferences in the plaintiff's
favor. Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011). General Laws c. 41, § 81BB, provides that a person
Page 4
aggrieved by a decision of a planning board concerning a plan of a subdivision of land may appeal by bringing an action in the Superior Court within twenty days after the decision has
been recorded in the office of the town clerk, and "notice of such appeal is given to such . . . town clerk so as to be received within such twenty days." G. L. c. 41, § 81BB. "It is
settled that compliance with the notice requirement within the twenty-day period is a jurisdictional prerequisite to prosecution of an appeal under § 81BB." Calnan v. Planning Bd. of
Lynn, 63 Mass. App. Ct. 384, 389 (2005), quoting Nantucket Land Council, Inc. v. Planning Bd. of Nantucket, 5 Mass. App. Ct. 206, 208 (1977). As a rule, this notice requirement has been
strictly enforced. See Calnan, supra at 390. The requirement of formal notice to the town clerk in planning and zoning cases has been relaxed in circumstances where the evidence established
that the town clerk had actual notice of the complaint having been filed in court within the required time, even though written notice was not physically filed in the town clerk's office.
See Hickey v. Zoning Bd. of Appeals of Dennis, 93 Mass. App. ct. 390, 393-394 (2018); Konover Mgt. Corp. v. Planning Bd. of Auburn, 32 Mass. App. Ct. 319, 326-327 (1992).
Here, it is undisputed that the plaintiff did not file with the town clerk a notice of the action commenced in the Superior Court until August 28, 2018, one day after the twenty-day
Page 5
limitations period had run. "The purpose of the notice provision is to give interested third persons at least constructive notice of the appeal. . . . Strict compliance with all the
details of the notice provision is not required, so long as notice adequate to serve the purpose of the provision is given within the period limited." Costello v. Board of Appeals of
Lexington, 3 Mass. App. Ct. 441, 443 (1975). This purpose cannot be fulfilled until the town clerk has notice that an action actually has been filed. Even accepting that the plaintiff
informed town representatives of his intention to file an appeal within the twenty-day limitations period, providing verbal notice to the town that an appeal may be filed does not satisfy
the statutory requirement. Notice of a pending action must be filed in the town clerk's office within twenty days. Here it was not.
The plaintiff contends that notification of the public hearing was defective and that, consequently, he had ninety days within which to appeal pursuant to G. L. c. 40A, § 17.3
Specifically, the plaintiff asserts that, "[no] notification prior to the hearing was given to the abutters of the proposed
Page 6
site at Burts Bog subdivision on Burts Pit Road." Assuming this claim is true, and further assuming, without deciding, that this provision of G. L. c. 40A, § 17, is applicable to actions
concerning a subdivision of land filed pursuant to G. L. c. 41, § 81BB, we are not persuaded that lack of statutory notice warrants a ninety-day extension in this case. It is well established
that a "[s]uccessful attack on a board's decision, in the face of actual notice but in the absence of statutorily required notice, should be restricted to circumstances where prejudice
is demonstrated." Chiuccariello v. Building Comm'rs of Boston, 29 Mass. App. Ct. 482, 486 (1990). Put another way, if statutory notice was defective, but the plaintiff learned of the
board's action anyway, he must show that he was prejudiced by the defective notice.
Here, it is undisputed that the plaintiff learned of the board's action approving the relocation of affordable housing units from Emerson Way to Burts Pit Road from a newspaper
article published on July 28, 2018, two days after the hearing and nearly a month before the end of the limitations period. Thereafter, he had time to communicate with the town planner,
request a rehearing, draft a complaint, and file it in the Superior Court before the twenty-day filing deadline. In these circumstances, any defect in notification of the public hearing
did not prevent the plaintiff from timely filing notice of his
Page 7
pending action with the town clerk. His failure to do so within twenty days was fatal to his complaint for judicial review. Accordingly, we discern no error in the judge's order of dismissal
for lack of jurisdiction.
Although the plaintiff has failed to persuade us that the judge erred in dismissing his complaint, we do not consider the appeal to be frivolous. We therefore decline to exercise
our discretion to award attorney's fees and costs as requested by defendant Richard Madowitz.
Judgment affirmed.
By the Court (Meade, Hanlon & Kinder, JJ.4),
/s/
Clerk
Entered: November 25, 2019.
--------
Footnotes:
1. As Northampton's senior land planner.
2. Wayne Feiden, as Northampton's director of planning and sustainability; Pamela Powers, as Northampton city clerk; Richard Madowitz, as manager of Emerson Way, LLC; and the
planning board of Northampton.
3. In pertinent part, G. L. c. 40A, § 17, provides "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 in the office of
the city or town clerk."
4. The panelists are listed in order of seniority.
--------