The Innovators’ Counsel: Zoning Flyover – The Massachusetts Zoning Act 20 and 90 Day Appeal Deadlines (for lawyers)

Jeremy Weltman Uncategorized

As attorneys with experience handling a variety of condominium, real estate and zoning issues – particularly issues arising in dealings with city and town level zoning boards and subsequent boards of appeals/trial court appeals  – the most frequent inquiry we receive in this area centers on obtaining or challenging the denial of a variance and/or special permit. However, before discussing the procedures for obtaining variances and special permits, it is of utmost importance to first address and fully consider the typical[1] procedural timing deadlines, and the consequences of not meeting those deadlines.

Under Section 17 of the Massachusetts Zoning Act (Mass. Gen. Laws c. 43A), a decision granting or denying zoning relief at the municipal level may be appealed by any “person aggrieved” within 20 days after the decision is filed with the municipal clerk. Such appeals may be based on a procedural defect, at least when the defect has prejudiced the appellant.  In light of the 20 day deadline, what happens when a party directly affected by the granting of a variance or special permit did not receive notice of the decision until after the twenty days passes?

Section 17 of the Zoning Act provides that:

The foregoing remedy [appeal within twenty days after filing of the decision with the city or town clerk] 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. . . .

According to the Zoning Act, except where there has been a total failure to provide the statutory notice as required by Mass. Gen. Laws c. 40A,  § 11, Section 17 provides a clear-cut 90 day statute of limitations on all appeals of a local zoning board  based on procedural defects – even if your claimed defect is that you never got notice of the hearing or decision.

The “total failure” contemplated by Section 11 comes in to play where a public hearing is scheduled by a municipal zoning board and the petitioning person or entity completely fails to make publication to all “interested persons” as laid out in the statute. The 90 day statute of limitations discussed herein relates to challengers who may have still not received notice, despite the procedures of Section 11 being followed by the petitioner. The Massachusetts Appeals Court case of Kramer v. Zoning Bd. of Appeals of Somerville, 65 Mass. App. Ct. 186, 194-95 (2005) is most instructive in making this distinction. In Kramer, a special permit decision was filed with the city clerk on October 11, 2001. About eighteen months had gone by when plaintiff Kramer saw an antennae structure under construction blocking the view from his window. Sixteen days later, on May 20, 2003, Kramer filed an action claiming, among other things, that neither he nor anyone else in his building (sixty-four residents of an abutting condominium) had received notice of the special permit hearing. The case was dismissed by the trial court because the ninety-day statute of limitations under Mass. Gen. Laws c. 40A, § 17 for actions claiming a defect in notice of hearing had expired.

The Appeals Court’s reversed the trial court, noting that the statutes of limitation in Section 17, “are not designed to foreclose access to judicial review when there has been a total failure of notice to one such as Kramer, who was entitled to receive it.” In effect, the 90 day statute of limitations is tolled “until the abutter has notice of the project to which he objects.” The court distinguished prior cases where litigation was dismissed for failure to file within the statutory deadline, as cases where “the aggrieved party eventually received some sort of notice that either permitted him to appear at the hearing or to appeal within the ninety-day window.” Id. at 194. The Appeals Court sent the case back to the trial court to determine “whether the board provided any other form of statutory notice… If no notice sufficient to meet the statutory requirements was provided, the board must hold a new hearing.” Id. at 196.

From the real estate conveyance, lender and buyers’ perspective, before relying on the 90 day statute of limitations to run with respect to zoning decision finality, it is imperative that in each case some notice (by publication, mailing and posting) was given in compliance with the statutory requirements of section 11.  As Kramer well illustrates, the 90 day statute of limitations does not completely eliminate the importance of avoiding procedural defects throughout the process. Proper procedures must be followed in all respects if the applicant wishes to avoid vulnerability to a procedural technicality based appeal,  both within and outside the 90 day appeal period contemplated by the Zoning Act.

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[1] Every situation is different, which is why you should consult an attorney before relying on any “typical” procedural deadlines outlined in this blog entry. These deadlines are just that, typical – and there may be shorter or longer deadlines applicable to your particular situation.