Opinion
No. 025064.
Memorandum Dated March 10, 2005.
The Zoning Board of Appeals of the Town of Reading ("the Town") is entitled to summary judgment concerning the defendant's claims that because the Town did not timely act on his appeal from the denial of the building permit and his application for a variance, the building permit and variance were constructively granted. The dates for required action by the Board of Appeals under G.L.c. 40A, § 15 were (a) 65 days from the date the Board received notice of the defendant's filing of the appeal and application with the Board to hold a hearing and (b) 100 days from the date of filing of the appeal and variance application with the Town Clerk for making a decision. The Board had under existing case law an additional 14 days following the 100-day period in which to file its decision. Burnham v. Town of Hadley, 58 Mass.App.Ct. 479 (2003). Based upon the certified official records of the Town and the affidavit of its Building Commissioner the appeal and variance application were filed with the Town Clerk on August 1, 2002. There was no factual evidence to put that date of filing in legitimate dispute.
With August 1, 2002 as the filing date and the date for notice to the Board, the Court finds that all deadlines were met by the Board and defendant was not entitled to a constructive grant of either the building permit or variance. See Racette v. Zoning Board of Appeals of Gardner, 27 Mass.App.Ct. 617 (1989).
Although not impacting the Court's ruling in this case, the Court was troubled by an argument advanced by the Town in this case.
General Laws c. 40A, § 15 requires that, in order to be timely filed, an appeal from a denial of a building permit must be filed with the city or town clerk within 30 days of the order or decision which is being filed. A filing of an appeal with someone other than the official designated by the statute is not an effective filing and does not convey jurisdiction. Greely v. Zoning Board of Appeals of Framingham, 350 Mass. 549, 552 (1966). Here the Town argued that the defendant's appeal was not lodged with the Town Clerk until August 1, 2002 more than 30 days after the building inspector's decision of June 25, 2002 denying the building permit. Defendant claims he filed his appeal on July 24, 2002 and he relies on a filing fee check of that date.
The Town of Reading's Instructions and Requirements for Petitions Submitted to the Zoning Board of Appeals ("the Instructions") read in relevant part:
You have the right to apply for a variance from the Town Zoning By-Laws, to apply for a Special Permit, or to appeal a decision/order of the Building Inspector.
All such applications must be submitted to the Office of Community Development at the Town Hall.
The Instructions further state that the application must be submitted within 30 days from the date of the order or decision of the building inspector.
If defendant could show he filed his application within 30 days of the building inspector's decision and with the Office of Community Development then he had complied with the expressed requirements of the Town of Reading. The Town maintained that defendant lost his right to appeal the building inspector's decision because the Town successfully misled him into filing his appeal with the wrong office or because the Office of Community Development did not immediately file the appeal with the Town Clerk. This smacks of unfairness. Although recognizing that the normal rule is that the doctrine of estoppel is not applied against the government to cause a statute not be enforced, this Court will look very hard for the exception to the normal rule should it see this argument again.
ORDER
The Court ORDERS that summary judgment enter for the plaintiff, the Zoning Board of Appeals of the Town of Reading, and specifically that there has been no constructive grant of a building permit or of a variance as asserted by defendant.