Kibbe v. Town of Douglas Zoning Board of Appeals

18 Mass. L. Rptr. 160
CourtMassachusetts Superior Court
DecidedJuly 13, 2004
DocketNo. 20031018
StatusPublished
Cited by1 cases

This text of 18 Mass. L. Rptr. 160 (Kibbe v. Town of Douglas Zoning Board of Appeals) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kibbe v. Town of Douglas Zoning Board of Appeals, 18 Mass. L. Rptr. 160 (Mass. Ct. App. 2004).

Opinion

Agnes, A.J.

Introduction

The plaintiff Alvin Kibbe, Jr. filed a civil action against the defendant Zoning Board of Appeals of the Town of Douglas under G.L.c. 40A, §17 to challenge an adverse decision by the Board upholding the Building Commissioner’s denial of a building permit and a request for a variance to construct a single-family dwelling on a non-conforming lot. The Board found that the plaintiff had previously obtained a building permit within 3 years after removing a trailer from the lot, but thereafter did not act upon it. The Board ruled that the grandfathering for the lot had expired. The defendant has filed a motion for summary judgment in which it maintains that this court has no jurisdiction to proceed because the plaintiff did not notify the Clerk in a timely manner as required by G.L.c. 40A, §17.

Background

The essential facts are not in dispute. The written decision by the Board was filed with the Clerk of the Town of Douglas on May 7, 2003. Exhibit A to the Defendant’s Motion for Summary Judgment (“Defendant’s Motion”). Within 20 days of the Board’s decision the plaintiff filed a complaint against the Board in the Worcester Superior Court setting forth a challenge to the Board’s decision. Exhibit C to the Defendant’s Motion. A copy of that complaint and a summons was served on the Clerk of the Town of Douglas on May 29, 2003. That was the first notice to the Clerk of the plaintiffs decision to appeal. See Exhibit B to the Defendant’s Motion (Affidavit of Christine Furno, Clerk of the Town of Douglas).1

Discussion

1. The Clerk of a City or Town Must Be Given Notice of an Action under G.L.c. 40A, §17 Within Twenty Days

G.L.c. 40A, §17 provides in part that “(a]ny person aggrieved by .a decision of the board of appeals or any special permit granting authority . . . whether or not previously a party to the proceeding . . . may appeal ... by bringing an action within twenty days after the decision has been filed in the office of the city or town clerk . . . Notice of the action with a copy of the complaint shall be given to such city or town clerk so as to be received within such twenty days.” G.L.c. 40A, §17. “The purpose of the notice provision is to give interested third persons at least constructive notice of the appeal.” Costello v. Board of Appeals of Lexington, 3 Mass.App.Ct. 441, 443 (1975). The statute requires an aggrieved party to do two things to perfect an appealfile an action in court and give notice of the action to the city or town clerk. Although the aggrieved [161]*161party is not required to cross eveiy “t” and dot every “i,” see McLaughlin v. Rockland Zoning Bd. of Appeals, 351 Mass. 678, 679-80 (1967) (the notice requirement is satisfied where the clerk only received a notice of the action but not a copy of the complaint); Grief v. Baker, 16 Mass. L. Rptr. 90 (Mass. Superior 2003) (The Town Clerk’s Office was timely served with the complaint. There is no statutory requirement that the complaint be accompanied by something entitled, “notice of appeal”), there is no exception to the requirement that the appealing party must demonstrate that the clerk had actual knowledge of the appeal within 20 days. See Konover Management Corp. v. Planning Board of Auburn, 32 Mass.App.Ct. 319 (1992).

2.

In Bingham v. City Council of Fitchburg, 52 Mass.App.Ct. 566 (2001), the Appeals Court held that an abutter appealing the granting of a special permit by the Fitchburg City Council failed to comply with G.L.c. 40A, §17 even though he filed his complaint in the Land Court on the final day of the twenty-day period because the papers did not reach the office of the city clerk until 15 minutes after it closed. Bingham, supra at 567. Even though the papers were date-stamped 4:45 p.m. by the mayor, who opened the door for the paralegal who was delivering the papers for the plaintiffs attorney, the clerk did not become aware of the notice of appeal until the morning of the next day. Id. The Appeals Court upheld the trial judge’s decision to dismiss the claims based on the statute’s requirement of notice to the clerk within 20 days. “The twenty-first day is not the twentieth day.” Id, at 571. This court reached the same result in Sanderson v. Zoning Board of Spencer, 2001 WL 1763446, 14 Mass. L. Rptr. 81 (Worcester Superior. 2001) (Locke, J.), a case in which the appeal was filed in the Superior Court within 20 days, but notice of the plaintiffs’ appeal did not reach the clerk’s office in Spencer until the morning of day twenty-one. Accord, Jacobs v. Town of Weston, 14 Mass. L. Rptr. 211 (Mass. Superior 2001), affirmed 58 Mass.App.Ct. 1111 2003) (appealing party served the clerk of the Board, not the town clerk, and there is no evidence that the town clerk became aware that plaintiff had filed an action within 20 days); Solomon Pond Realty Trust v. Zoning Board of Appeals, Northborough, 1999 WL 791901 (Worcester Superior. 1999) (Josephson, J.).

3. Problems Associated with Self-representation

This case illustrates one of the perils that a person faces when judicial review is sought of the decision of an administrative agency or board at the local or state level without the advice and representation of an attorney. The law in this area is complex, and the court is required to apply some of the rules strictly in order to protect the interests of persons who may be affected by the board or agency’s decision such as persons who are abutters to the property owned by the plaintiff in this case. Many of these rules and requirements, like the 20-daynotice provision contained in G.L.c. 40A, §17 and involved in this case, may be unfamiliar to a non-lawyer, or may not seem to be significant to a lay person.

In this court’s experience, persons who choose to represent themselves in proceedings before the Superior Court are treated with patience and understanding by the court officers, clerical staff, and the clerks. Special efforts are made in such cases to explain to pro se litigants as much of the procedural and substantive law and the rules that apply in their case as can be done consistent with the obligation of court personnel to be fair and impartial to all parties, and their duly to give appropriate time and attention to the parties and witnesses in other cases. Judges too, in this court’s experience, make an effort to be better listeners and to explain in even more detail than ordinarily is the case the applicable law and the court’s reasoning in cases involving pro se litigants.2 But when it comes to the decision that a court must make on a motion, whether it is procedural or relating to the merits, judges are not permitted to disregard the requirements of the law because one or more of the parties is not represented by an attorney. See generally Farretta v. California, 422 U.S. 806, 834 n.46 (1975); Jackson v. Commonwealth, 430 Mass. 260, 264 (1999), cert. denied, 528 U.S. 1194 (2000); Solimine v. Davidian, 422 Mass. 1002 (1996); Maza v. Commonwealth, 423 Mass. 1006, 1006 (1996); Brossard v. West Roxbury Div. of the Dist Court Dep’t, 417 Mass. 183, 184 (1994); Mmoe v. Commonwealth, 393 Mass. 617, 620 (1985).

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Bluebook (online)
18 Mass. L. Rptr. 160, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kibbe-v-town-of-douglas-zoning-board-of-appeals-masssuperct-2004.