Bingham v. City Council of Fitchburg

• Decision Date: 18 May 2001
• Docket Number: P-0742
• Citation: 754 N.E.2d 1078,52 Mass. App. Ct. 566
• Parties: (Mass.App.Ct. 2001) CAROL Y. BINGHAM, trustee <A HREF="#fr1-1" name="fn1-1">1 vs. CITY COUNCIL OF FITCHBURG & others. <A HREF="#fr1-2" name="fn1-2">2 00-
• Court: Appeals Court of Massachusetts

754 N.E.2d 1078 (Mass.App.Ct. 2001)

CAROL Y. BINGHAM, trustee¹ vs. CITY COUNCIL OF FITCHBURG & others.²

00-P-0742

Massachusetts Court of Appeals

May 18, 2001

September 20, 2001

County: Worcester.

Present: Greenberg, Gillerman, & Doerfer, JJ.

Practice, Civil, Appeal, Notice of appeal, Enlargement of time. Zoning, Appeal, Notice

Civil action commenced in the Land Court Department on October 12, 1999.

On transfer to the Worcester Division of the Housing Court Department, the case was heard by John G. Martin, J., on a motion for summary judgment.

Acheson H. Callaghan for the plaintiff.

David S. Weiss for BJ's Wholesale Club, Inc.

Michael J. Ciota, City Solicitor, for city council of Fitchburg.

DOERFER, J.

The plaintiff in this case, waiting until the last possible moment of the last possible day, failed by fifteen minutes to file in the city clerk's office a notice of appeal of the grant of a special permit as required by G. L. c. 40A,

§ 17.³ We affirm the decision of the Worcester Housing Court granting the defendants' motion for summary judgment and dismissing the plaintiff's appeal. Harsh as it may seem, the circumstances in this case do not come within the wiggle room created by any decided case. We decline to enlarge that space any further.

Background. In January, 1999, the defendants, BJ's Wholesale Club, Inc., and Natick MA Realty Corp., applied to the Fitchburg city council (council) for a special permit to build a gas station in the parking lot of BJ's Fitchburg store. Their application was denied, and in March, 1999, BJ's appealed that decision to the Worcester Superior Court. The appeal was transferred to the Worcester Housing Court which, by stipulation of the parties, remanded the matter back to the council "for purposes of holding further hearings and/or making additional, supplemental or amended findings," while the court retained jurisdiction.⁴ After a public hearing, the council voted to reverse its original determination and grant the special permit. This decision was filed in the city clerk's office on September 21, 1999.

The plaintiff holds property abutting BJ's Fitchburg store, the location of the would-be gas station. On October 12, 1999, the final day of the twenty-day⁵ appeal period under G. L.

c. 40A, § 17, the plaintiff brought an action by filing a complaint in the Land Court⁶ appealing the decision of the council granting a special permit to the defendants. On the same day, a paralegal acting for the plaintiff's attorney drove to the city clerk's office in Fitchburg to file a notice of appeal and a copy of the complaint with the city clerk as required by G. L.

c. 40A, § 17. Unfortunately, the paralegal did not reach the clerk's office until after it had closed for the day at its regularly scheduled and published closing time of 4:30 P.M.⁷ The paralegal then went across the hallway to the mayor's office and explained the predicament. The paralegal asked to go to the clerk's home to deliver the papers, but was told that the clerk was "away." The mayor was able to open the clerk's office door, and the papers were date-stamped at 4:45 P.M. They were retained by the mayor and not filed in the clerk's office until some unascertained time the next day. The clerk was not aware of the notice of appeal until some time in the morning of the next day. There is no evidence as to when that morning it was brought to the attention of anyone in the clerk's office.

Discussion. Receipt of notice by a city clerk is a

prerequisite "for an action under G. L. c. 40A, § 17, which the courts have 'policed in the strongest way' and given 'strict enforcement.'" Konover Mgmt. Corp. v. Planning Bd. of Auburn, 32 Mass. App. Ct. 319, 322-323 (1992) (citations omitted). "[T]imely institution of an appeal should be held a condition sine qua non, while other steps in carrying out the appeal should be treated on a less rigid basis." Pierce v. Board of Appeals of Carver, 369 Mass. 804, 811 (1976), citing Schulte v. Director of the Div. of Employment Security, 369 Mass. 74, 81 (1975). Konover Mgmt. Corp. v. Planning Bd. of Auburn, supra.

As stated in Schulte,"Sloppiness in following a prescribed procedure for appeal is not encouraged or condoned, but at the same time a distinction is taken between serious missteps and relatively innocuous ones. Some errors or omissions are seen on their face to be so repugnant to the procedural scheme, so destructive of its purposes, as to call for dismissal of the appeal. A prime example is attempted institution of an appeal seeking judicial review of an administrative decision after expiration of the period limited by a statute or rule. The result in such a case is understandable and acceptable: it is comparable in some respects to the dismissal of an original claim brought to a court after the running of an applicable statute of limitations. With respect to other slips in the procedure for judicial review, the judge is to consider how far they have interfered with the accomplishment of the purposes implicit in the statutory scheme and to what extent the other side can justifiably claim prejudice."

Schulte v. Director of the Div. of Employment Security, supra at 79-80 (citations omitted).

Failures in meeting the twenty-day deadline are not forgiven. See Costello v. Board of Appeals of Lexington, 3 Mass. App. Ct. 441, 442-443 (1975); O'Blenes v. Zoning Bd. of Appeals of Lynn, 397 Mass. 555, 558 (1986). As we said in Costello, "[t]he purpose of the notice provision is to give interested third persons at least constructive notice of the appeal. Strict compliance with all the [other] details of the notice provision is not required, so long as notice adequate to serve the purpose of the provision is given within the period limited [emphasis supplied]." Costello v. Board of Appeals of Lexington, supra at 443 (citations omitted). See Konover Mgmt. Corp., v. Planning Bd. of Auburn, supra at 324 ("The key element of the[] decisions relaxing the rigors of strict compliance with the zoning appeal statute is that within the mandatory twenty-day period the clerk is actually notified that an appeal -- i.e., a complaint -- has in fact been timely filed" [emphasis added]). Thus, if the required notice was not received within twenty days, the appeal should be dismissed. Garfield v. Board of Appeals of Rockport, 356 Mass. 37, 39 (1969), and cases cited.

In Garfield, the Supreme Judicial Court held that the statutory requirement of notice to the town clerk was satisfied by delivering a notice of action and a copy of the complaint to the clerk at her home after the close of the clerk's office on the twentieth day. Ibid. The court reasoned that, according to the statute, it is the state of the clerk's knowledge that is important, not the physical location of the papers.⁸ Thus, the notice provision was satisfied because the clerk had knowledge of the appeal on the twentieth day even though it came hours after the clerk's office closed for the day.

In Konover, the plaintiffs mistakenly filed the requisite papers with the town planner's office instead of with the city clerk. Konover Mgmt. Corp., v. Planning Bd. of Auburn, 32 Mass. App. Ct. at 320-321. Prior to the expiration of the twenty-day deadline, however, the town planner showed the clerk and an assistant clerk the copy of the complaint that had been received. Id. at 322. Relying on the holding of Garfield v. Board of Appeals of Rockport, supra, that it is the clerk's knowledge and not the locations of the papers which controls, w...