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.
20 Day Appeal Deadline
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.
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?
90 Day Statue of Limitations on all Appeals
According to the Zoning Act, 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 received notice of the hearing or decision. The exception is when there has been a “total failure” to provide the statutory notice as required by Mass. Gen. Laws c. 40A, § 11.
Total Failure of Notice
The “total failure” contemplated by Section 11 comes into play when a public hearing is scheduled by a municipal zoning board and the petitioning person or entity completely fails to make notice by publication, mailing or posting to all “interested persons” as laid out in the statute.
The 90 day statute of limitations still applies to challengers if the petitioning person or entity provided notice by publication, mailing or posting even if the challenger did not received notice.
Understanding and Following the Procedures and Deadlines
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. In other words, 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.
Read More
Want to read the case law supporting the 20 and 90 day appeal deadlines? Click here.