Neighbor appealed from decision by city zoning board of appeal granting landowner approval to change occupancy of its property.
After the case was remanded by the Superior Court and proceedings were stayed, the board issued another decision in landowner’s favor. After more than 20 days, landowner moved to dismiss the Superior Court action for neighbor’s failure to appeal second decision. The Superior Court Department granted the motion. Neighbor appealed.
The Appeals Court held that neighbor was not required to appeal second decision to invoke Superior Court’s subject matter jurisdiction.
Neighbor challenging zoning appeal board’s approval of landowner’s change of occupancy, who had already appealed an earlier decision of board in litigation that remained pending, was not required to appeal board’s decision after superior court remand or to amend its complaint within 20 days, in order to invoke subject matter jurisdiction of superior court, despite ordinance stating that appeal must be filed within 20 days. Neighbor had been diligent in efforts to assert rights, landowner could not claim surprise and was not prejudiced by any delay, and decision after remand did not concern an entirely different or new project.