Late-Filed Appeal to Zoning Board is a Nullity, Not a Springboard to Constructive Approval
The Massachusetts Appeals Court’s recent decision in McIntyre v. Zoning Board of Appeals of Braintree demonstrates the importance of subject matter jurisdiction in the context of administrative proceedings. The plaintiffs appealed the issuance of a building permit authorizing construction of a single-family house on an abutting lot. Though they knew immediately that the permit had issued, the plaintiffs didn’t file their appeal until 44 days later, well past the 30-day deadline imposed by M.G.L. c. 40A, § 15. Despite the lateness of the appeal, the Braintree zoning board of appeals (ZBA) held two hearings before determining that it had no jurisdiction to consider the merits of the appeal. At the second hearing the ZBA voted unanimously to deny the appeal but did not issue a written decision that day.
If these were all the facts there probably wouldn’t have been a court case. But of course there’s more. The same statute that imposes the filing deadline – M.G.L. c. 40A, § 15 – includes a constructive approval mechanism that works like this: when a zoning board receives an appeal it must open a public hearing within 65 days, decide the appeal within 100 days, and file its written decision within 14 days of the 100-day deadline. If the board fails to decide the appeal within 100 days, the appellant may file a notice of constructive approval with the city or town clerk and notify all “parties in interest” as defined in M.G.L. c. 40A, § 11. If no one appeals the constructive approval to court within 20 more days, the city or town clerk must certify that the constructive approval is final.
In McIntyre, the ZBA met the 65-day deadline to open the hearing but did not make its decision within 100 days. On the 112th day, the plaintiffs filed their notice of constructive approval and that same day the ZBA (no doubt aroused by the plaintiffs’ filing) filed its written decision denying the appeal. Neither the ZBA nor the permit-holder appealed the constructive approval to court. Instead, the plaintiffs filed a Land Court case seeking a declaratory judgment that their constructive approval was valid.
The Land Court granted summary judgment to the ZBA and the other defendants, ruling that because the plaintiffs’ initial appeal of the building permit was untimely, the appeal could not later be constructively approved. The Appeals Court affirmed, noting that the 30-day deadline to appeal a building permit is both strictly enforced and necessary to invest a zoning board with jurisdiction over the appeal. This observation led the court to conclude that a timely appeal “is a statutory prerequisite to a board’s duty – or even authority – to comply with the various hearing and decision deadlines imposed on it by § 15.” The Appeals Court flatly rejected the plaintiffs’ suggestion that, “by holding a hearing in error, a board of appeals can somehow grant itself jurisdiction to hear an untimely appeal.” The court also dismissed the plaintiffs’ argument that, in these circumstances, the ZBA was required to appeal the supposed constructive approval to court. The court referred to the supposed approval as “a nullity.”
While the result in McIntyre isn’t surprising, the case is a useful reminder that jurisdiction is a foundational requirement for all legal proceedings. While the issue crops up more often in court cases, jurisdiction is equally necessary in administrative proceedings conducted by zoning boards and other government bodies. Because jurisdiction is the sine qua non of a valid legal proceeding, lack of jurisdiction can be raised at any time, regardless of how long the proceeding has gone on and regardless of any mistaken belief by the parties – or the administrative tribunal itself – that jurisdiction exists. Practitioners challenging an administrative decision should carefully review the statutory and regulatory framework as well as the procedural history to determine whether all applicable deadlines and other jurisdictional requirements were met.