In Schultz v. Gately, Superior Court Judge Douglas H. Wilkins recently discovered that, “[s]urprisingly, there appears to be no clear authority on the proper avenue, if any, for challenging a determination” that a Planning Board makes in the course of monitoring compliance with an earlier approval. 

This case involved several disputes between the plaintiff home buyers and a defendant builder.  In one dispute, the buyers complained that the Town of Wayland and the Wayland Planning Board had misinterpreted the town’s local regulations by allowing the builder to plant pear trees instead of “suitable shade trees.”  The Planning Board responded with a letter in which it sided with the builder and refused to act on the buyers’ complaint.

Judge Wilkins held that the Planning Board’s response was not governed by the appeals process set forth in M.G.L. c. 41, §81BB, which provides for a 20-day appeal period after a planning board decision gets filed with the town clerk.  Instead, the judge ruled that the only way to obtain review of the Planning Board’s refusal to act on the buyers’ complaint was to file an action in the nature of certiorari under M.G.L. c. 249, §4.  This statute authorizes actions “to correct errors in proceedings which are not according to the course of the common law, which proceedings are not otherwise reviewable by motion or by appeal . . . .”

Unfortunately for the buyers, M.G.L. c. 249, §4 requires certiorari actions to be filed within 60 days after the proceeding (or failure to act) complained of.  Because the buyers had not filed suit within 60 days of the Planning Board’s letter refusing to act on their complaint, Judge Wilkins dismissed the buyers’ certiorari claim.  He also rejected their argument that they could get around the 60-day deadline by proceeding on a declaratory judgment theory.

This case gives us one more procedural twist to keep in mind when dealing with planning boards.