Heard: March 9, 2018.
action commenced in the Land Court Department on January 30,
2014. Following review by this court, 89 Mass.App.Ct. 1119
(2016), the case was heard by Robert B. Foster, J., on
motions for summary judgment.
M. Moody for the plaintiffs.
Deborah I. Ecker for zoning board of appeals of Braintree
Present: Lemire, Ditkoff, & McDonough, JJ.
issue before us is whether a Land Court judge correctly
dismissed the plaintiffs' complaint, which sought a
determination that their appeal from the issuance of a
building permit had been constructively approved pursuant to
G. L. c. 4OA, § 15. Because the plaintiffs failed to
file an appeal from the issuance of the building permit
within the time limit established by § 15, we
August 13, 2013, the building inspector and code compliance
officer (building inspector) of Braintree (town) issued a
building permit to Mento Enterprises, Inc. (Mento), for
construction of a single family dwelling at 38 Myrtle Street
in Braintree. The plaintiffs, owners of
residential land abutting or in close proximity to the
property, learned that a building permit had issued when
construction activity began on August 14, 2013. On September
27, 2013, forty-four days after becoming aware of the
construction, the plaintiffs filed an appeal with the zoning
board of appeals (board). It is now undisputed that the
appeal was untimely.
the board held a public hearing on November 26, 2013, and
voted to continue the hearing. After a weather-related delay,
the board conducted an additional hearing on January 8, 2014,
103 days after the plaintiffs had filed their appeal. During
the January 8 meeting, the board found that because the
plaintiffs had failed to file a timely appeal from the
building inspector's decision to grant the building
permit as set forth in the first paragraph of G. L. c. 40A,
§ 15, the board lacked jurisdiction to consider the
merits of the appeal. The board voted unanimously to deny the
plaintiffs' request for relief, but did not file a
decision on that date.
January 17, 2014, 112 days after filing their appeal, the
plaintiffs filed a notice of constructive approval of their
appeal with the Braintree town clerk (town clerk) in
accordance with the requirements set forth in the fifth
paragraph of G. L. c. 40A, § 15. Later on that same day,
the board filed with the town clerk its written decision
denying the appeal on grounds that the appeal had been
untimely. Neither the board nor the other defendants appealed
from or took other action related to the plaintiffs'
notice of constructive approval.
January 30, 2014, the plaintiffs commenced this action in the
Land Court seeking, among other relief, a declaratory
judgment that their appeal to the board had been
constructively granted. On June 8, 2017, on cross motions
for summary judgment, the Land Court granted judgment in
favor of the defendants, finding that because the plaintiffs
had failed to file a timely appeal with the board, their
appeal from the issuance of the building permit could not be
Laws c. 40A, § 15, establishes the mechanism for
appealing decisions of a local zoning enforcement officer to
a board of appeals. Paragraph two provides that any appeal
"shall" be taken within thirty days of the date of
the order or decision appealed from, by filing a notice of
appeal with the city or town clerk with a copy to the zoning
administrator. Thereafter, there are a number of time
requirements the board must satisfy. The board must hold a
hearing open to the public within sixty-five days of the
board's receipt of notice of such appeal and the
board's decision must be made within one hundred days of
the filing of an appeal unless the time is extended by
written agreement between the "applicant" and the
board of appeals. G. L. c. 40A, § 15. Finally, the board
must reduce its decision to final written form and file it
with the city or town clerk within fourteen days of the one
hundred-day deadline. Id. See Burnham v.
Hadley, 58 Mass.App.Ct. 479, 482-483 (2003);
O'Kane v. Board of Appeals of Hingham, ...