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McIntyre v. Zoning Board of Appeals of Braintree

Appeals Court of Massachusetts, Suffolk

October 10, 2018

MATTHEW McINTYRE & others[1]
v.
ZONING BOARD OF APPEALS OF BRAINTREE & others.[2]

          Heard: March 9, 2018.

         Civil 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.

          Gerald M. Moody for the plaintiffs.

          Deborah I. Ecker for zoning board of appeals of Braintree & others.

          Present: Lemire, Ditkoff, & McDonough, JJ.

          LEMIRE, J.

         The 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 affirm.[3]

         Background[4]

         On 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.[5] 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.

         Nonetheless, 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.

         On 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.

         On 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.[6] 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 constructively approved.

         Statutory requirements.

         General 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, ...


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