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Appeals Court of Massachusetts.



Decided: October 06, 2021

By the Court (Meade, Shin & Walsh, JJ.2)


In October of 2018, Somerville's zoning board of appeals (ZBA) granted a special permit in favor of YEM Somerville Ave., LLC (YEM) to build a hotel. YEM's original 2018 proposal, approved by the ZBA, included eighty parking spaces in a self-park garage (the 2018 decision). In 2019, in an effort to reduce costs, YEM filed another application with the ZBA, seeking to materially change the original proposal. YEM sought to replace the eighty-space self-park garage with a smaller fifty-eight-space self-park garage, as well as a valet service for an additional twenty-two spaces. Such application was approved by the ZBA (the 2019 decision).

Claudia Murrow, an abutter, challenged the 2019 decision by filing a complaint in the Land Court pursuant to G. L. c. 40A, § 17. Shortly thereafter, YEM elected to abandon its rights under the 2019 decision and instead construct the hotel and parking garage in accordance with the specifications of the previously approved 2018 decision. YEM and other parties then moved for entry of judgment, asking that the 2019 decision be annulled. A Land Court judge allowed the joint motion in part, first concluding that the 2018 decision was not before the court and then entering a judgment remanding the matter to the ZBA so that it could consider the effect of YEM's election; on remand the ZBA annulled its 2019 decision.

Before us now is Murrow's appeal from the Land Court's judgment. Murrow argues: (1) YEM failed to meet its burden of proof in the 2018 and 2019 applications for a variance,3 (2) the Land Court erred in treating the 2018 decision as a separate and final decision apart from the 2019 decision, and (3) the Land Court's order of remand did not serve the interests of justice and equity. For the reasons set forth below, we affirm.

Discussion. “Courts generally ‘decline to hear moot cases.’ ” M.C. v. Commissioner of Correction, 399 Mass. 909, 911 (1987), quoting Lockhart v. Attorney Gen., 390 Mass. 780, 782-783 (1984). “Litigation ordinarily is considered moot when the party claiming to be aggrieved ceases to have a personal stake in its outcome” (quotation and citation omitted). Aquacultural Research Corp. v. Austin, 88 Mass. App. Ct. 631, 633 (2015).

Here, pursuant to G. L. c. 40A, § 17, Murrow had the right to challenge the 2019 decision within twenty days of it being filed in the office of the city clerk. Murrow did so through the complaint she filed in the Land Court.4 After Murrow filed her complaint, however, YEM abandoned its rights under the 2019 decision and elected instead to proceed in accordance with the 2018 decision. Because YEM irrevocably abandoned its rights under the 2019 decision, an abandonment that was “binding upon [YEM's] successors and assigns,” the 2019 decision no longer was of any effect.5

Where a plaintiff receives the relief sought in her complaint, her suit becomes moot. See McCants v. Clerk of Suffolk Superior Court for Criminal Business, 465 Mass. 1007, 1007-1008 (2013). Because Murrow received the relief sought in her complaint, i.e., to prevent YEM, or any successor or assignee, from building a parking garage in accordance with the specifications of the 2019 decision, her suit challenging the 2019 decision became moot. See id. See also Taylor v. Board of Appeals of Lexington, 451 Mass. 270, 274 (2008) (suit challenging special permit that is no longer operative is moot).

Furthermore, and contrary to Murrow's arguments, her complaint did not resurrect any rights she previously possessed to challenge the ZBA's 2018 decision. The 2018 decision was filed with the Somerville City Clerk on October 25, 2018. Any challenge to the 2018 decision was required to be brought within twenty days of its filing with the Somerville City Clerk. See G. L. c. 40A, § 17. Such a requirement is jurisdictional, and “courts police zoning appeal jurisdictional requirements ‘in the strongest way.’ ” 311 West Broadway LLC v. Board of Appeal of Boston, 90 Mass. App. Ct. 68, 75 (2016), quoting Pierce v. Board of Appeals of Carver, 369 Mass. 804, 808 (1976). Therefore, where Murrow failed to appeal the 2018 decision within twenty days of it being filed with the Somerville City Clerk, she no longer retained the right to challenge it. See Cappuccio v. Zoning Board of Appeals of Spencer, 398 Mass. 304, 311-312 (1986) (appeal of zoning board decision filed one day after twenty-day appeal period expired left court without jurisdiction to hear plaintiff's appeal). Accordingly, the judge properly concluded that the Land Court did not have before it the 2018 decision and, Murrow's c. 40A complaint having been mooted, the judgment properly entered.

Judgment affirmed.


3.   Murrow also argues that the ZBA failed to make specific findings as to whether such variances were necessary, both to avoid substantial hardship and for YEM's reasonable use of the land.

4.   The 2019 decision was filed on August 22, 2019, and Murrow filed her complaint on September 9, 2019. Murrow's complaint challenging the 2019 decision was timely. See G. L. c. 40A, § 17 (twenty day period to challenge zoning decisions).

5.   Murrow argues that the Land Court did not have the authority to enter the remand order on the defendants’ joint motion for entry of judgment. However, contrary to Murrow's assertion, the plain language of G. L. c. 40A, § 17, permits the court to make any such decree “as justice and equity may require.”

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