McIntyre v. Zoning Bd. of Appeals of Braintree
McIntyre v. Zoning Bd. of Appeals of Braintree
Opinion of the Court
*841The 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. 40A, § 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.
Background.
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 *842seeking, among other relief, a declaratory judgment that their appeal to the board had been constructively granted.
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,
The petitioner has fourteen days following expiration of the board's one hundred-day deadline to file a notice of constructive approval with the city or town clerk and notify "parties in interest," as defined in G. L. c. 40A, § 11.
Discussion. There is now no dispute that the plaintiffs did not appeal from the building inspector's decision to issue the building permit at issue within thirty days. It is also without dispute that the board did not make a decision within one hundred days of when the plaintiffs did file their appeal. The question, then, is how these lapses bear on the plaintiffs' claim to constructive approval of their appeal to the board. It is well settled that the thirty-day deadline to appeal from a zoning officer's issuance of a building permit is both strictly enforced and is a jurisdictional prerequisite to the board's jurisdiction to hear an appeal. See Connors v. Annino,
It follows that filing a timely notice of appeal by a petitioner is a statutory prerequisite to a board's duty -- or even authority -- to comply with the various hearing and decisional deadlines imposed on it by § 15. See Pasqualino v. Board of Appeals of Wareham,
Although the plaintiffs' notice of constructive approval was filed within 114 days of their appeal to the board, they could not obtain such an approval because they did not satisfy the initial statutory requirement of filing a notice of appeal from the issuance of the building permit within thirty days. The plaintiffs were never entitled to a hearing before the board or to a decision on the merits. The plaintiffs cite no authority for the proposition that, by holding a hearing in error, a board of appeals can somehow grant itself jurisdiction to hear an untimely appeal. Due to the plaintiffs' untimely appeal, the board lacked jurisdiction to issue a decision on the merits, whether that decision was by written decision or by constructive approval.
The plaintiffs cite Elder Care Servs., Inc. v. Zoning Bd. of Appeals of Hingham,
It is true that in Elder Care Servs., Inc., we held that, absent a timely appeal pursuant *844to G. L. c. 40A, § 17, the town could not raise its arguments that the constructively granted permit was for a use prohibited by the zoning by-law, or, alternatively, that the petitioner had waived its right to a constructive grant. Id. at 481, 483,
Here, the plaintiffs' claimed constructive approval of their appeal to the board is a nullity. Their late filing rendered them ineligible for any approval, constructive or otherwise. The town is not obligated to bring a § 17 appeal to challenge a purported constructive approval of an untimely appeal. The judge properly declined to provide the requested relief.
Conclusion. For all of the foregoing reasons, we affirm the judgment for the defendants.
So ordered.
This is the second time this matter has come before us. The first time, we remanded for further consideration of whether statements by the town solicitor and mayor indicating the plaintiffs had a longer time to appeal the building permit estopped the town from claiming the plaintiffs had filed a late appeal. McIntyre v. Zoning Bd. of Appeals of Braintree,
We recite the undisputed facts taken from the record relevant only to the narrow jurisdictional issue on appeal. For a more detailed summary of the factual and procedural background see McIntyre v. Zoning Bd. of Appeals of Braintree,
Defendant JJM Myrtle Street Corporation subsequently purchased the lot from Mento in November, 2013.
The plaintiffs' action sought to annul the decision of the board pursuant to G. L. c. 40A, § 17 ; requested relief in the nature of mandamus pursuant to G. L. c. 249, § 5 ; and also sought additional declaratory relief.
Because there is no requirement that notice to abutters or even public notice be given of a building permit application or issuance, "difficult questions concerning adequacy of notice may arise at the margins" when parties in interest do not receive notice until after a period of time in the thirty-day appeal period has already elapsed. Connors,
The plaintiffs cite no authority for their assertion that the board may waive the time limit to file an appeal.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.