Allegaert v. Harbor View Hotel Owner LLC

Citation180 N.E.3d 459
Decision Date17 November 2021
Docket NumberNo. 20-P-828,20-P-828
Parties Lynn ALLEGAERT & others v. HARBOR VIEW HOTEL OWNER LLC & others (and a companion case).
CourtAppeals Court of Massachusetts

Felicia H. Ellsworth, Boston, for Lynn Allegaert & others.

Mariana Korsunsky (Kevin P. O'Flaherty also present) Boston, for Harbor View Hotel Owner LLC.

James B. Lampke, Boston, for town of Edgartown & others, was present but did not argue.

Present: Rubin, Sacks, & Ditkoff, JJ.


The plaintiffs, all neighbors of the Harbor View Hotel (Harbor View) in Edgartown, appeal from Superior Court judgments dismissing two different Superior Court actions, one challenging a special permit allowing Harbor View to relocate its pool bar (permit action) and one challenging the failure of the building inspector of the town of Edgartown (town) to take enforcement action against Harbor View for selling food and beverages from and near that bar (enforcement action).5 General Laws c. 40A, § 17, generally requires an appeal of a decision on a special permit application to be filed within twenty days of the filing of that decision with the town clerk. Nonetheless, such a decision may be "questioned ... with respect to [defects in] ... [notice by] publication, mailing or posting" by filing a lawsuit within ninety days of the filing of the decision. G. L. c. 40A, § 17. The permit action, which alleges both defects in notice and substantive errors in the grant of the special permit, was filed more than twenty, but less than ninety, days after the filing of the decision. Concluding that the permit action was timely concerning the allegations of defects in notice, we reverse the dismissal of this complaint to this extent. Further concluding that the portion of the enforcement action -- which was filed timely -- that challenges the alleged sale of food and beverages in a patio area not included in the special permit may proceed, we vacate, in part, the dismissal of the enforcement action.

1. Background. Harbor View exists as a prior nonconforming commercial use in a residential neighborhood. In 1990 and again in 1992, the zoning board of appeals of Edgartown (board) granted Harbor View a special permit to serve food and beverages at some of the hotel's outdoor areas. Between 1992 and 2019, a pool bar existed near the eastern end of the pool from which the hotel was permitted to serve food and beverages.

On March 20, 2019, Harbor View applied to the board for a special permit to replace the existing pool bar and construct a new pool bar in a different location. A set of plans accompanied the application. The bar was to be constructed on the western end of the pool, outside the pool's fence. The board scheduled a hearing for May 1, 2019, and the board's assistant has averred that she mailed notice of the hearing to "parties in interest" as identified by the town's assessor. The assistant also averred that she published notice in the Vineyard Gazette on April 12 and April 19, 2019, and by posting notice of the public hearing at town hall. The plaintiffs assert in their complaint that none of them received notice of the special permit application or of the board's hearing.6

On May 1, 2019, the board voted to grant the special permit and filed a decision with the town clerk on May 3, 2019. The plaintiffs also allege that they did not know about the special permit until construction began on or about June 13, 2019. They commenced their appeal of the special permit on June 21, 2019, forty-nine days after the board's decision was filed, by filing a complaint in Superior Court. As mentioned, this complaint alleged both defects in notice and that the special permit was wrongly granted on the merits.

Harbor View, joined by the town, moved to dismiss the complaint, arguing, inter alia, that the complaint failed to state a claim and that the Superior Court lacked sbject matter jurisdiction because the plaintiffs had not filed their complaint within twenty days of the filing of the board decision. The judge credited the sworn declaration of the board's administrative assistant and discredited the sworn declarations of the plaintiffs and their neighbors. Thus concluding that notice was properly mailed, the judge dismissed the counts of the complaint challenging the special permit.7

In addition, on August 2, 2019, an attorney for the plaintiffs filed a request with the town for enforcement of the zoning bylaws. The plaintiffs contended both that the location of the new bar is outside the "pool area" on which the 1992 special permit authorized service of food and beverages and that the sale of food and beverages at and near the bar is unauthorized. The building inspector denied the request, concluding "that the uses and activities being undertaken are permitted under the law and the permits." The board upheld the building inspector's decision. On appeal to the Superior Court -- the timeliness of which is uncontested -- a different Superior Court judge dismissed the appeal, concluding that the "enforcement" claims were in essence an effort to appeal from the 2019 special permit decision, and principles of claim preclusion required dismissal.

2. Standard of review. "We review de novo the allowance of a motion to dismiss for lack of subject matter jurisdiction under rule 12 (b) (1)." 311 West Broadway LLC v. Board of Appeal of Boston, 90 Mass. App. Ct. 68, 73, 56 N.E.3d 854 (2016). In reviewing the allowance of a motion to dismiss granted pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), we accept the allegations in the complaint as true and draw "all reasonable inferences in the plaintiff[s’] favor." Baptiste v. Executive Office of Health & Human Servs., 97 Mass. App. Ct. 110, 114, 143 N.E.3d 1052 (2020), cert. denied, ––– U.S. ––––, 141 S. Ct. 2626, 209 L.Ed.2d 752 (2021), quoting Edwards v. Commonwealth, 477 Mass. 254, 260, 76 N.E.3d 248 (2017). "[M]atters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint, also may be taken into account." Rosenberg v. JPMorgan Chase & Co., 487 Mass. 403, 408, 169 N.E.3d 445 (2021), quoting Iannacchino v. Ford Motor Co., 451 Mass. 623, 631 n.14, 888 N.E.2d 879 (2008).

3. Notice and timeliness of the appeal from the special permit. a. Statutory provisions. The timeliness of actions challenging a special permit decision is governed by statute. "Our primary duty in interpreting a statute is ‘to effectuate the intent of the Legislature in enacting it.’ " Spencer v. Civil Serv. Comm'n, 479 Mass. 210, 216, 93 N.E.3d 840 (2018), quoting Campatelli v. Chief Justice of the Trial Court, 468 Mass. 455, 464, 11 N.E.3d 115 (2014). "Ordinarily, where the language of a statute is plain and unambiguous, it is conclusive as to legislative intent." Abuzahra v. Cambridge, 486 Mass. 818, 822, 162 N.E.3d 653 (2021), quoting Ryan v. Mary Ann Morse Healthcare Corp., 483 Mass. 612, 620, 135 N.E.3d 711 (2019). "[W]here the statutory language is ambiguous or unclear, we consider the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, [such that] the purpose of its framers may be effectuated.’ " Abuzahra, supra, quoting Spencer, supra at 217, 93 N.E.3d 840.

General Laws c. 40A, § 17, states that a person aggrieved by a decision on a special permit "may appeal ... by bringing an action within twenty days after the decision has been filed in the office of the city or town clerk." The same section further provides the following:

"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 ...."

Harbor View and the town read these provisions as establishing two different statutes of limitations for challenging a special permit decision on the merits -- twenty days ordinarily, but ninety days if the aggrieved party can show a defect in notification. The Supreme Judicial Court, however, has rejected that reading of the statutory provisions. See Cappuccio v. Zoning Bd. of Appeals of Spencer, 398 Mass. 304, 496 N.E.2d 646 (1986). "The plain meaning of this language ... is that the ninety-day appeal period applies to actions alleging the invalidity of any action by the board due to certain defects in procedure or notice." Id. at 309, 496 N.E.2d 646. Accord Kramer v. Zoning Bd. of Appeals of Somerville, 65 Mass. App. Ct. 186, 191, 837 N.E.2d 1147 (2005) ("A longer period [or ninety days] applies, however, to appeals based on defects in procedure, including notice").

Accordingly, the statute provides different statutes of limitations for two different types of challenges to a special permit decision. For a challenge to a special permit decision on the merits, the statute provides for an "exclusive" remedy, which must be filed within twenty days of the filing of the board's decision. G. L. c. 40A, § 17. Accordingly, "the addition of the ninety-day appeal period language to the statute was not to enlarge the time for filing an appeal on the merits, but was intended to limit the time for filing a challenge to an action of a board on the ground that a defect in procedure or notice had deprived the board of jurisdiction over the matter." Cappuccio, 398 Mass. at 310, 496 N.E.2d 646. The time limit for a lawsuit seeking to invalidate a board decision because of a defect in notice for public hearings is thus ninety days. See id. at 311, 496 N.E.2d 646.8

Here, the complaint raises both types of challenges. The plaintiffs raise numerous claims about the merits of the grant of the special permit....

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