Opinion
11-P-628
05-10-2012
AJP REAL ESTATE GbR LLC & another v. PLANNING BOARD OF EDGARTOWN & others.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The planning board of Edgartown (board) granted the special permit application of Thomas and Jill Durovsik for construction of a private, noncommercial timber pier extending from their beachfront property. Almost one year later, the owners of separate parcels of real estate located west of the Durovsiks' property, AJP Real Estate GbR LLC (AJP Real Estate) and Isabaltic Limited (Isabaltic) (collectively, the abutters), filed a complaint in the Superior Court seeking revocation of the special permit. A judge ordered the entry of summary judgment against the abutters' claims as time-barred. We affirm.
Background. In the light most favorable to the abutters, the following chronology of events emerges from the summary judgment record. On December 31, 2008, the board sent notice to the abutters of a public hearing scheduled for January 20, 2009, on the Durovsiks' special permit application. An e-mail dated January 15, 2009, confirms that Anna Engelhorn, a principal of AJP Real Estate, received this notice prior to the public hearing. By its own admission, Isabaltic received actual notice on January 20. The board continued the hearing to February 3 and then to February 10. It granted the Durovsiks' special permit application. Neither the abutters nor their counsel attended the hearing.
Events at the public hearing are unclear. The minutes show that the Durovsiks' counsel informed the board that his clients and the Engelhorns were 'currently in negotiations . . . to share the pier.' The written decision, by contrast, states that the board 'was told the Durovsiks had worked out an agreement with the current abutters . . . .' On March 4, 2009, the board caused the decision to be filed in the town [FN3]'s office.
The attorneys for AJP Real Estate and the Durovsiks had discussions about the proposed pier prior to the public hearing.
In July of 2009, AJP Real Estate, through counsel, informed the board by letter that it wished to have the board revoke the special permit. It claimed that Anna Engelhorn had only recently learned of the special permit's issuance. In August of 2009, Isabaltic, through counsel, informed the board of its opposition to the construction authorized by the special permit. On November 16, 2009, alleging that fraud, mutual mistake, or gross negligence had wrongly influenced the board's issuance of the special permit, the abutters filed a single application with the board to reopen the public hearing and to withdraw the special permit. Although the application included substantive arguments regarding the merits of the special permit's issuance, the board held a hearing to consider the abutters' allegation of fraud only. After a hearing, the board denied the application.
The letter referenced an earlier communication in June of 2009, when Isabaltic's counsel had written to the Department of Environmental Protection in opposition to the Durovsiks' waterway application.
The board denied the application to reopen the public hearing by an oral vote of two to one. The written decision of the board explained that the board had 'unanimously voted that the [special permit] [a]pplicants had not committed a fraud on the Board during the course of the special permit proceedings.'
On February 2, 2010, the abutters filed their complaint in Superior Court. For jurisdiction they invoked G. L. c. 40A, § 17 (grievance at the hands of a special permit granting authority), and G. L. c. 231A (request for declaratory relief). They alleged that the board's limited consideration of fraud at the hearing 'was arbitrary, capricious, whimsical, and beyond the Board's authority.' The abutters characterized the special permit as invalid and sought its revocation.
Discussion. This appeal chiefly presents the issue whether the abutters appealed the issuance of the Durovsiks' special permit within the limitations period of G. L. c. 40A, § 17. Under the terms of the statute, the limitations period depends on the notice of the public hearing preceding the issuance of the special permit. Where the person aggrieved had notice of the public hearing, the statute allows for an appeal to be filed 'within twenty days after the decision has been filed in the office of the city or town clerk.' Ibid. Where the person aggrieved received defective notice of the public hearing, the statute expands the limitations period to 'ninety days after the decision has been filed in the office of the city or town clerk.' Ibid. Finally, this court has recognized that in the case of 'complete failure of notice of a public hearing in advance of the granting of a special permit, the ninety-day limitation in G. L. c. 40A, § 17, should not be deemed to run until the abutter has notice of the project to which he objects.' Kramer v. Zoning Bd. of Appeals of Somerville, 65 Mass. App. Ct. 186, 193-194 (2005).
In relevant part, G. L. c. 40A, § 17, as amended through St. 2002, c. 393, § 2, provides that:
'Any person aggrieved by a decision of . . . any special permit granting authority . . . may appeal to the . . . superior court department . . . by bringing an action within twenty days after the decision has been filed in the office of the city or town clerk. . . . The foregoing remedy shall be exclusive, notwithstanding any defect of procedure or of notice other than notice by publication, mailing or posting as required by this chapter, and the validity of any action shall not be questioned for matters relating to defects in procedure or of notice in any other proceedings except with respect to such publication, mailing or posting and then only by a proceeding commenced within ninety days after the decision has been filed in the office of the city or town clerk, but the parties shall have all rights of appeal and exception as in other equity cases.'
After conducting an independent review of the summary judgment record, we conclude that the abutters had notice of the public hearing prior to the issuance of the special permit. As for AJP Real Estate, the e-mail dated January 15, 2009, from its counsel provides indisputable evidence of effective notice. As for Isabaltic, the complaint in the Superior Court includes the admission that it received notice prior to the public hearing as well. Accordingly, we find the complaint time-barred because the abutters failed to file their appeal within twenty days of the filing of the decision in the town clerk's office.
Even if we were to apply the statute's ninety-day limitations period, or the ninety-day limitations period of Kramer, the abutters would have failed to file their appeal until a time more than ninety days after the filing of the decision in the town clerk's office and until a point more than ninety days after notice of the Durovsiks' proposed pier. Application to reopen. We find no basis for the contention that the board abused its discretion by refusing to consider allegations other than fraud in the denial of the abutters' application to reopen the public hearing and for withdrawal of the Durovsiks' special permit. See Box Pond Assn. v. Energy Facilities Siting Bd., 435 Mass. 408, 420 (2001) ('[W]e accord agencies broad discretion in deciding whether to [reopen a record and hearing to present additional evidence], and an agency's refusal to reopen is not disturbed absent an abuse of that discretion '). See also Brookline v. Commissioner of the Dept. of Envtl. Quality Engr., 387 Mass. 372, 385 (1982). Neither the statute nor our case law demands that the board consider whether a serious mistake, gross negligence, or some other less culpable act wrongly influenced the issuance of the special permit. The board exercised its inherent authority to reconsider its decision to grant the Durovsiks' special permit, which this court has noted 'must be sparingly used if administrative decisions are to have resolving force on which persons can rely.' Stowe v. Bologna, 32 Mass. App. Ct. 612, 616 (1992). Although the abutters correctly note that fraud is not 'the only basis on which the board or comparable agencies may initiate reconsiderations,' Aronson v. Brookline Rent Control Bd., 19 Mass. App. Ct. 700, 704 n.10 (1985), this statement, if anything, supports the well-established rule that 'administrative agencies have broad discretion over procedural aspects of matters before them.' Zachs v. Department of Pub. Utils., 406 Mass. 217, 227 (1989).
The abutters emphasize that the board (1) failed to provide notice to the abutters of the decision granting the Durovsiks' special permit application within fourteen days of its filing; and (2) failed to have the decision filed in the town clerk's office within fourteen days of the decision. See G. L. c. 40A, §§ 9, 15. These alleged errors, however, do not extend the limitations period of § 17. See Cappuccio v. Zoning Bd. of Appeals of Spencer, 398 Mass. 304, 310-311 (1986) (determining that late notice of decision granting special permit does not extend limitations period); Zuckerman v. Zoning Bd. of Appeals of Greenfield, 394 Mass. 663, 667 (1985) (finding fourteen-day filing requirement 'only a regulation for the orderly and convenient conduct of public business and not a condition precedent to the validity of the act done'), quoting from Cheney v. Coughlin, 201 Mass. 204, 211 (1909). In Cappuccio, 398 Mass. at 311, the Supreme Judicial Court made clear that only defective notice of the public hearing could extend the limitations period of § 17.
More importantly, even if the board had reopened the public hearing, the abutters could not have collaterally attacked the merits of the issuance of the special permit. See Elder Care Servs., Inc. v. Zoning Bd. of Appeals of Hingham, 17 Mass. App. Ct. 480, 482 (1984) (pointing out that G. L. c. 40A, § 17, describes itself as the exclusive remedy for appeal from the issuance of a special permit). The abutters' application to reopen the public hearing did not 'restart' the limitations period for purposes of appealing the special permit. A party who fails to file an appeal of a special permit within the limitations period of § 17 cannot appeal a subsequently denied motion to revoke the special permit in order to dispute the merits of its original issuance.
Compromise negotiations. Lastly, the abutters explain that the lateness of their attempted appeal results from interim settlement efforts with the Durovsiks. Good faith, however, cannot extend the limitations period of G. L. c. 40A, § 17. The abutters could have commenced an appeal before the end of the limitations period, voluntarily agreed to stay the proceedings, and continued negotiations with the Durovsiks. Having failed to do so, they can no longer appeal the Durovsiks' special permit.
Judgment affirmed.
By the Court (Rapoza, C.J., Grainger & Sikora, JJ.), Clerk