Opinion
No. 12–P–1484.
2013-09-24
William CHIUCHIOLLO & Another v. HOPEDALE ZONING BOARD OF APPEALS.
By the Court (RAPOZA, C.J., HANLON & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After hearing cross motions for summary judgment, a Superior Court judge ruled that the plaintiffs' failure to appeal from a decision of the Hopedale zoning board of appeals (board) within the twenty-day period set out in G.L. c. 40A, § 17, did not deprive him of jurisdiction over their complaint. Both the plaintiffs and the board appeal, with the primary issue before us being whether the plaintiffs' appeal to the Superior Court was time barred.
Background. The undisputed facts are as follows. Plaintiffs William and AnnMarie Chiuchiollo, a married couple, are owners of 50–52 Hope Street in Hopedale. The Chiuchiollos' property is located in a zoning district in which two-family dwellings are allowed only by special permit. In 2007, the Chiuchiollos applied for and received a variance and a special permit from the board to tear down an existing, lawfully nonconforming two-family home on their property and build a new, two-family home in its place. The board voted to approve the variance and the special permit on September 19, 2007. In the circumstances, the Chiuchiollos did not appeal.
In June, 2008, the Chiuchiollos applied for a so-called “amendment” to the variance, arguing that it “contained a restriction as to ownership of the building” in violation of Hopedale's zoning by-laws.
After a hearing in August, 2008, the board voted to deny the Chiuchiollos' application. The complaint underlying the present appeal followed, and the parties filed cross motions for summary judgment, as noted supra. The plaintiffs' motion for summary judgment was allowed as to jurisdiction, but denied as to their requested relief.
In point of fact, however, the 2007 decision does not make clear whether the board intended the condition allegedly effecting an ownership restriction to be appended to the variance, the special permit, or both.
On the other hand, the judge allowed, without express limitation or further explanation, the board's motion for summary judgment and remanded the matter “for proceedings not inconsistent with this decision, as the Hopedale Zoning Board sees appropriate.”
The Chiuchiollos' motion sought “reversal of the [board's] August 2008 decision.”
Earlier in the decision, the judge stated that it was doubtful that the board had the authority “to impose an ownership restriction,” but that deleting “a condition of ... [a special] permit” was “a matter for local—not judicial—determination.”
Discussion. We conclude that the judge erred in determining that the Superior Court had jurisdiction over the Chiuchiollos' complaint, primarily relying on Board of Appeals of Rockport v. DeCarolis, 32 Mass.App.Ct. 348, 352–354 (1992) (time limit associated with right of appeal under G.L. c. 30A, § 14, did not apply to declaratory judgment action challenging agency's authority to render decision). Even were we to assume that the reasoning of DeCarolis applies in the present circumstances, the Superior Court still would lack jurisdiction over the Chiuchiollos' untimely complaint.
General Laws c. 40A, § 17, as appearing in St.1989, c. 649, § 2, states that “[a]ny person aggrieved by a decision of the board of appeals or any special permit granting authority ... may appeal to ... the superior court department in which the land concerned is situated ... by bringing an action within twenty days after the decision has been filed in the office of the city or town clerk ” (emphasis supplied). From the limited record before us, it appears that the primary thrust of the board's position below was that the Chiuchiollos' complaint was time barred.
The board has not included in the record appendix its own motion for summary judgment or supporting memorandum of law. Nor has it included the memorandum of law the Chiuchiollos filed in support of their motion. Similarly, the Chiuchiollos have not supplemented the record appendix.
“Timely filing in court is a jurisdictional prerequisite in appeals from administrative decisions.” Calnan v. Planning Bd. of Lynn, 63 Mass.App.Ct. 384, 389 (2005), citing Flynn v. Contributory Retirement Appeal Bd., 17 Mass.App.Ct. 668, 669–670 (1984). “[B]y its plain language, § 17 establishes that a person aggrieved by a decision of a special permit granting authority must seek review of that decision, if at all, within twenty days of the filing of the decision in question.” Iodice v. Newton, 397 Mass. 329, 333 (1986). Here, the § 17 twenty-day clock began ticking with the board's filing of its 2007 zoning decision (which contained the alleged ownership restriction to which the Chiuchiollos object), not its subsequent decision on the Chiuchiollos' 2008 application for an amendment. See Klein v. Planning Bd. of Wrentham, 31 Mass.App.Ct. 777, 778–780 (1992) (absent changed circumstances, appeal contending condition was invalid when originally imposed must be taken from original decision). Although there is an exception to the twenty-day rule for modification applications where there have been certain changes in circumstances regarding the zoning relief, in the absence of such circumstances that exception does not apply here. Contrast Wendy's Old Fashioned Hamburgers of New York, Inc. v. Board of Appeal of Billerica, 454 Mass. 374, 383–385 (2009).
In DeCarolis, a party aggrieved by an administrative decision brought an untimely four-count complaint: three counts sought judicial review under G.L. c. 30A, § 14; the fourth count sought a declaratory judgment to determine the agency's authority to render its decision. 32 Mass.App.Ct. at 349. A Superior Court judge allowed a motion to dismiss all claims. Ibid. The DeCarolis court held that while claims brought pursuant to G.L. c. 30A challenging an agency's subject matter jurisdiction are subject to the statute's time limitation, a claim for declaratory relief presents a special circumstance in which the period prescribed by statute for obtaining judicial review does not apply. Id. at 352–354.
Therefore, under the reasoning of DeCarolis, had a request here for declaratory relief against the board been made, a similar special circumstance might have arisen. We need not consider the point further, however, because the Chiuchiollos' complaint does not request declaratory relief. Indeed, their action is captioned as a “complaint pursuant to G.L. c. 40A, § 17.” Nor did the motion judge enter a declaratory judgment. Contrast ibid.
Conclusion. So much of the judgment as allowed summary judgment for the Chiuchiollos on the issue of jurisdiction, and as remanded the case to the board for further examination is vacated. The case is remanded to the Superior Court for entry of judgment for the board on these issues. The remainder of the judgment is affirmed.
So ordered.