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Appeals Court Offers Path for Challenging ZBA’s Failure to Act

A constructive approval cannot be obtained where a zoning board of appeals secretary promptly returns an application and filing fee and says it does not have jurisdiction, according to the Massachusetts Appeals Court in its unpublished recent decision of Neli Ridge, LLC v. Town Clerk of Wilmington, 93 Mass.App.Ct. 1109 (2018).

In that case, the applicants had submitted two applications to the Wilmington building inspector seeking action on a certificate of occupancy, building permit, and to amend a ZBA condition regarding an earlier variance. The building inspector found both applications incomplete and communicated that determination by letter to the applicants. The applicants filed two applications with the Wilmington Zoning Board of Appeals purporting to appeal the building inspector’s decisions. The ZBA secretary found the applications to that board similarly incomplete and that the ZBA did not have jurisdiction over the appeals. The applicants were informed of the ZBA secretary’s decision by letter returning the applications. The ZBA never opening a public hearing on the appeals.

After more than 100 days had passed without action from the ZBA, the applicants filed a notice of constructive approval of its variance modification pursuant to M.G.L. c. 40A, § 15. The town clerk informed the plaintiffs that constructive approval was improper because the ZBA lacked jurisdiction and the town had not accepted the application and filing fee. The plaintiffs ignored this response and three weeks later attempted to submit a certificate of constructive approval. When the clerk did not respond, the plaintiffs filed suit in the Land Court seeking mandamus and declaratory relief in an attempt to compel the town clerk to act.

The Land Court ordered summary judgment of the case in the town’s favor based on the ZBA’s lack of subject matter jurisdiction. The Court found that because the ZBA informed the applicant that his applications were insufficient and not within the ZBA’s authority to take the appeal and did not open a hearing, the time period for a constructive approval never started. 

Affirming the Land Court’s decision but on slightly different grounds, the Appeals Court held in a Rule 1:28 decision that there was never a constructive approval of the application.

“Quite simply, there was never any effective filing so as to trigger the constructive approval mechanism. The trust’s filing was not accepted; instead, the ZBA secretary returned the trust’s application and filing fee, stating that the ZBA lacked jurisdiction over the application.” Under these circumstances, the Court noted that the applicants “could not reasonably have thought that any further action from the ZBA was forthcoming.”

The Appeals Court also provided applicants with some specific guidance: if you think the ZBA’s rejection of an application is wrong, file for mandamus relief immediately after the ZBA’s action. The Court found the applicants’ path here was “incongruous at best.”

© 2020 Beveridge & Diamond PC National Law Review, Volume VIII, Number 176


About this Author

Brian C. Levey Real Estate Attorney Beveridge & Diamond Boston, MA & Framingham, MA

Brian has more than 20 years of project development experience before permit-granting authorities and in court.


Brian's real estate development and land use and zoning law experience focuses on the representation of builders, developers, and property owners seeking all types of permits and approvals — special permits, site plan approvals, variances, and comprehensive permits — before dozens of boards throughout ...

Dylan J. King Environmental Litigation Attorney Beveridge & Diamond Boston, MA

Dylan uses his legal and business skills to help clients solve problems.

He maintains a diverse environmental litigation and regulatory practice, working with clients nationwide across industrial sectors. He has developed experience with solid waste facility siting, pipeline and hazardous material transportation regulations, site contamination litigation, and local zoning matters. Dylan joined the firm following his graduation from Vermont Law School with a certificate in Energy Law.

During his time at Vermont Law School, Dylan worked with the Vermont Law School Energy Clinic, helping clients develop solar projects. The clinic has a particular focus on building legal models that support and educate communities pursuing solar power ownership. He also acted as the Head Notes Editor for the Vermont Law Review and was selected to work as a Dean’s Fellow in the legal writing department, where he taught weekly legal writing seminars. In addition, Dylan served for two years as a Civil Procedure teaching assistant. In his first summer of law school, Dylan interned as a law clerk in the United States Attorney’s Office, District of Maine, in the criminal and appellate divisions.

Service Areas & Industries 

  • Industrial Hemp & Cannabis
  • Litigation