Zoning – Special permit – Subject matter jurisdiction

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Where a plaintiff has filed a complaint seeking judicial review of a decision by the Melrose Board of Appeals granting a special permit to demolish a two-unit dwelling and build a four-unit townhouse, the complaint must be dismissed because the plaintiff did not comply with the filing and notice requirements of G.L.c. 40A, §17.

“Any person aggrieved by a decision of the board of appeals or other special permit granting authority may challenge that decision ‘by bringing an action within twenty days after the decision has been filed in the office of the city or town clerk.’ G.L.c. 40A, §17. Given the undisputed fact that the contested decision was filed with the City Clerk on May 24, 2023, [plaintiff David] Griffin had until June 13, 2023, to bring this action. Griffin filed this action on June 15, 2023 — two days too late.

“Even if the complaint had been filed by the appropriate date, Griffin also failed to provide notice of the action, with a copy of the complaint, to the City Clerk within twenty days of the decision’s filing, as required by G.L.c. 40A, §17. …

“Griffin contends that his failure to adhere to the requirements of G.L.c. 40A, §17 is due to his lack of legal education. While the court may, in some circumstances, extend courtesies to a pro se litigant due to his or her lack of legal training, Chapter 40A, §17 requires strict compliance. …

“Here, the Melrose City Clerk may have been aware that Griffin intended to file suit and may have received a copy of the statement attached to the complaint highlighting Griffin’s grievances. But without a formal complaint, this information amounted to nothing more than a forewarning. … By filing his complaint after the twenty-day deadline, Griffin failed to provide third parties with notice or ability to review the complaint as contemplated by the statute.

“Under the Melrose Zoning Ordinance, a party’s rights under a special permit may be exercised as soon as the twenty-day time period has elapsed. Therefore, on the twenty-first day after the decision, if no suit has been brought, the permit-holder may begin work on the project. If a court could allow an appeal filed after the twenty-day deadline to go forward, the certainty intended by G.L.c. 40A, §17 would be undermined. ‘Failures in meeting the twenty-day deadline are not forgiven.’ …

“Griffin’s failure to file his complaint within the time mandated by G.L.c. 40A, §17 cannot be ignored by this court. Thus, the court lacks subject matter jurisdiction to hear Griffin’s appeal. …

“For the reasons set forth in this decision, the Planning Board’s motion to dismiss under Mass. R. Civ. P. 12(b)(1) is allowed. Judgment shall enter in its favor and Griffin’s complaint will be dismissed with prejudice.”

Griffin v. Melrose MA Planning Board (Lawyers Weekly No. 14-007-24) (5 pages) (Smith, J.) (Middlesex Land Court) (Docket No. 23 MISC 000277) (Jan. 12, 2024).

Click here to read the full text of the opinion.