On February 13, 2017, the Land Court, Scheier, J., issued an Order Denying Plaintiffs' Motion for Summary Judgment in Heller v. Conner et al., Land Court Docket No. 15 MISC 0000481 (KFS) in which the court denied a motion for summary judgment against the Zoning Board of Appeals of the Town of Plymouth (the "Board"), and P&A's client, Kingstown Corporation ("Kingstown"). The order rejected the plaintiffs' claim that the failure to mail notice of a zoning hearing to a party-in-interest was a fatal flaw in the public hearing process prescribed by G. L. c. 40A § 11, where that party-in-interest is a plaintiff in the ongoing de novo appeal of the permitting issued through that process.
This case originates from an appeal of a decision from the Board rendered in 2014. The Board initially rejected Kingstown's proposal to excavate approximately 250,000 cubic yards of sand and gravel from a lot in Plymouth. Kingstown appealed the decision to the Land Court in Kingstown Corporation v. Zoning Bd. of Appeals of Plymouth, Land Court Docket No. 14 MISC 488666. In May, 2015, the Land Court, Long, J., issued an order remanding the case to the Board, and ordering a new public hearing on Kingstown's application.
Complying with the court's remand order, the Board scheduled a public hearing. For purposes of providing proper notice under G. L. c. 40A, § 11, the Board published notices of the remand hearings in the Old Colony Memorial Newspaper in the Town of Plymouth, posted notices and agendas of the remand hearings at Plymouth Town Hall and on the Plymouth Town website, and mailed written notices of the remand hearings to the parties-in-interest (abutters and abutters to abutters within 300 feet) according to the Town Assessors tax list certified on May 23, 2014. The tax list used by the Board, however, did not include up-to-date information as to one party-in-interest, who had recently bought his property.
As a result, during the remand hearings before the Board, that party-in-interest did not directly receive information about those hearings and did not attend any of them. The remand hearings occurred over five dates, from June, 2015 to October, 2015, when the Board voted to grant Kingstown the requested special permit. The decision of the Board was, then, appealed to the Land Court in November, 2015 and is the subject of this current action. The party-in-interest, who did not receive mailed notice, became aware that the Board of Appeals had issued the special permit in the end of November, 2015, when one of the plaintiffs in this action invited him to join this suit. The party-in-interest was, then, added as a plaintiff by an amended complaint filed in this case in January, 2016.
Agreeing with Kingstown, Judge Scheier found that the failure of the Board to send notice to the one, applicable party-in-interest, who is presently a plaintiff in this action, was not a fatal, procedural flaw affecting the validity of the Board's decision, and denied the Plaintiffs' Motion for Summary Judgment. Although the particular plaintiff / party-in-interest was not able to attend the remand hearings, he was not prejudiced by the lack of notice because he was able to join this appeal, and thereby has been afforded the opportunity to have the Land Court consider and determine whether the Board's grant of the requested special permit was rendered in error. Kasper v. Bd. of Appeals of Watertown, 3 Mass. App. Ct. 251, 257 (1975). In addition, the Board's failure to send the mailed notice was not fatal, because it complied with the remaining notice requirements of G. L. c. 40A § 11. Kramer v. Zoning Bd. of Appeals of Somerville, 65 Mass. App. Ct. 186, 194 (2005). Therefore, the failure to send notice was not fatal to the jurisdiction of the Board to hear and decide Kingstown's application for a special permit. The plaintiffs' remaining claims will be tried in the Land Court.
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Written by Robert Linnoila, Candidate for Juris Doctor, May 2017, Boston College Law School
Copyright (c) 2017 by Jeffrey T. Angley, P.C. All rights reserved.
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