Appeals Court affirmed Superior Court Judge's dismissial in the Johsnon-LandGate case.
Every term/word written in bold/italic is a link to a document or webpage!A panel of three judges of the Appeals Court of the Commonwealth in Boston has finally ruled in my Appeal in the so called “Johnson-Landgate” case.
The ruling is consistent with what is going on in the two other branches of government. While the failing Legislative and Executive Branch affects the lives of everybody, the failing Judiciary branch affects in most cases “only” the lives of involved individuals.
Yes, I lost my Appeal. However, I know that the panel of three judges didn’t get it right and I will file an application for “Further Appellate Review,” (FAR).
Superior Court Judge Peter Velis claimed in his ruling that I would not have standing to bring this action to court and dismissed the case granting the town’s motion to dismiss.
I disagreed and appealed judge Velis’s ruling to the Appeal’s Court. I addressed the issue of “standing” in my brief to the Appeals Court.
The Appeals Court NOW ruled that I failed to file my appeals appealing Jack Keough’s (building inspector) letters of denial. The issue whether I have standing or not does not seem to justify dismissal of my action any longer.
The Appeals Court ruled:
[T]he plaintiff did not file an appeal from the letters denying his request for enforcement within thirty days following such denials, as required by G. L. c. 40A, s.15.It will surprise you that I actually filed the two appeals, one separate document for each of Jack’s letters of denial. The two documents the Appeals Court in error claims I failed to file are just one step of many in the lenghty procedure I had to follow to bring this action up in Superior Court. Jack Keough issued his two letters of denial on March 17, 2008, see exhibit 8, appendix page 037 and exhibit 9, appendix page 039; I filed my two letters of appeal 14 days later, see exhibit 10, appendix page 41; and exhibit 11, appendix page 43. It is frightening how sloppy a panel of three judges administered “justice” here. Any civilized society ceases to exist without a functioning Judiciary and tyranny is the ensuing consequence.
See also par. 77, 78, on page 8 of my complaint.
The reader may be in disbelieved and will ask how can that happen? The answer is simple; why would the Judiciary be any different than the two other branches? If you follow the news you know what I’m talking about.
The other reason the Appeals Court mentioned, a shortcoming in connection with filing an appeal pursuant c.40A, s.17, is ludicrous. I mean it in the true sense of the word!
I filed a section 8 appeal and not a section 17 appeal!
Click here to read the town’s brief.
Click here to read my reply brief.
Every term/word written in bold/italic is a link to a document or webpage!
Here is the ruling by the Appeals Court:
Peter K. Frei (Appellant) v. Town Clerk of Holland et all. (Appellees)
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
We affirm the judgment of the Superior Court dismissing the plaintiff's complaint for the reason (among others) that the plaintiff's appeals to the defendant zoning board of appeals were untimely. The plaintiff in 2008 sought enforcement of the zoning laws against structures and uses authorized by two special permits issued in 2004 and 2006, respectively. Any challenge to either special permit was required to have been filed within twenty days after its issuance. See G. L. c. 40A, s.17. Moreover, the plaintiff did not file an appeal from the letters denying his request for enforcement within thirty days following such denials, as required by G. L. c. 40A, s.15. Because he failed timely to pursue the denial of his requests for enforcement, the defendant zoning board of appeals was under no obligation to consider them, and the plaintiff accordingly is not entitled to an order mandating the defendant town clerk to issue a certificate of constructive grant. Timely commencement of an appeal is a jurisdictional requirement. See Bingham v. City Council of Fitchburg, 52 Mass. App. Ct. 566, 569 (2001). Furthermore, a plaintiff may not use an action seeking a declaratory judgment to circumvent the procedural requirements imposed by G. L. c. 40A, s.17. See Iodice v. Newton, 397 Mass. 329, 333-334 (1986).
Judgment affirmed.
By the Court (Kantrowitz, Green & Meade, JJ.), Clerk