The Easthampton Planning Board filed a decision with the City Clerk on September 21, 2011 regarding the denial of a special permit to the Plaintiff. The Plaintiff, Valley Community Development, filed a copy of the complaint and a Notice of the action with the Town Clerk within twenty days of the decision being filed (on of before October 11), in full compliance with the statute G.L. c. 40A, § 17. The complaint, necessary papers, and entry fee was mailed on October 4, 2011 by first class mail to the Land Court in Boston. The envelope was mis-addressed and did not arrive to the Court until October 25. Unaware that the envelope had not been received, the Plaintiff served the Defendants by certified mail. The certificate of service was mailed to the Land Court on October 14, 2012. Since there was no docket number, the Court called the Plaintiff to make them aware that there was no case filed with the Court. Once the Plaintiff was aware, they immediately over-nighted a new envelope and the matter became a case on October 19th. The original envelope arrived and became a second case on October 25.
G.L. c. 40A, § 17 requires that the action be brought in court within twenty days after the decision has been filed in the office of the city or town clerk. The Court noted that cased are commenced by “(1) mailing to the clerk of the proper court by certified or registered mail a complaint and an entry fee prescribed by law, or (2) filing such complaint and an entry fee with such clerk.” Since the envelope was sent by first class mail, the case was not commenced until it had been received, outside the deadline of the statute. Even though the board contends that it was not prejudiced by the delay, the action filed fails. The Court dismissed the actions with prejudice.
Valley Community Development Corporation v. Ogulewicz, 2012 WL 1720178N(Mass. Land. Ct. 5/12/2012)
The opinion can be accessed at: http://masscases.com/cases/land/2012/2012-11-454836-MEMO.html