Regardless of ideology, political
affiliation, or any assessment of whether emergency orders and legislation in
its wake have been good policy, the Covid-19 pandemic has stretched our
existing legal
The Governor’s legal team, likely, shared
the same concern, as the General Court moved extremely expeditiously at his petitioning,
among others, to codify his March 12, 2020 Executive Order, in the enactment of
H.B. 4598, which
Baker signed into law on April 3, 2020. No harm, no foul, at least on the score
of this potential legal overreach, since it lasted all of about three weeks.
However, this was not the only example of well-entrenched and likely
constitutionally-required respect for separation of powers being formally
ignored, albeit for exceptionally good policy reasons, during the pandemic.
Section 17 of the Zoning Act requires that
an appeal be brought “within twenty days after the decision has been filed in
the office of the city or town clerk”, and that “[n]otice of the action with a
copy of the complaint shall be given to such city or town clerk so as to be
received within such twenty days.” “[R]eceipt of notice by the town clerk is a
jurisdictional requisite for an action under G. L. c. 40A, §
17, Garfield v. Board of Appeals of Rockport, 356 Mass. 37, 39 (1969),
which the courts have ‘policed in the strongest way,’ Pierce v. Board of
Appeals of Carver, 369 Mass. 804,
808 (1976), and given ‘strict enforcement,’ O'Blenes v. Zoning
Bd. of Appeals of Lynn, 397 Mass. 555,
558 (1986).” Konover Management
Corp. v. Planning Bd. of Auburn, 32 Mass. App.
Ct. 319, 322-323 (1992). In sum,
generally-speaking, in real estate litigators’ line of work, a zoning appeal
and the clerk’s notice absolutely must be filed within 20 days; the 20-day
deadline is a drop-dead date. An abutter’s stage coach will turn into a pumpkin
on the 21st day.
The Supreme Judicial Court, however,
issued a series of emergency orders during the Covid-19 crisis, the most recent of which was entered on June 24, 2020,
was effective as of July 1, 2020, and includes a
provision that purports to toll “all deadlines set forth in statutes
. . . that expired at any time from March 17, 2020, through June 30, 2020” to a
date on or after June 30, 2020, based on a calculation formula. (Emphasis
added.) On its face, this order seems to apply inter alia to G. L. c. 40A, §
17’s 20-day deadline, notionally supplying potential plaintiffs in zoning
appeals with a period of time considerably in excess of the 20 days prescribed
by the statute. This is unprecedented in MA land use practice, based on
existing appellate law on this issue.
It is true that decisions, such as Konover,
supra, show that “strict enforcement and strong policing” do not require
“inflexible literalness”, i.e., some marginal exceptions to statutory
requirements have been allowed. 32 Mass. App. Ct. at 323. However, “[t]he
key element of these decisions relaxing the rigors of strict compliance with
the zoning appeal statute is that within the mandatory twenty-day period the
clerk is actually notified that an appeal -- i.e., a complaint -- has
in fact been timely filed.” Id. at 324-325 (footnote omitted). “The
statutory purpose is then served, because ‘interested third parties [can] be
forewarned [by the clerk] that the zoning status of the land is still in
question.’” Id. at 325, quoting Carr v. Board of Appeals of Saugus,
361 Mass. 361, 363 (1972).
This rationale for loosening the standards
would appear to be absent when considering, and inapplicable to, the Covid-19
crisis, even though there is a different, arguably even more powerful, policy
rationale for such loosening under the SJC’s emergency orders, at present. That
said, however, the emergency orders also reflect a loosening of standards
beyond any prior point—no one has been permitted to file and give notice beyond
the 20-day mark before, not even on the 21st day. See Planning Board of
Falmouth v. Board of Appeals, 5 Mass. App. Ct.
324, 325, 328 (1977). But, at least based on
present human memory, the courts have also never effectively been closed before
(only emergency matters were being heard for a considerable period of time over
the spring).
Equitable principles, asserted to extend
the deadline, such as reliance upon faulty advice from a town clerk, have been
rejected by the SJC, in this area of law, on this precise type of issue. See
O’Blenes, 397 Mass. at 556-559. Equitable tolling, sparingly applied to
statutes of limitation, which this deadline arguably is not, has never been
applied in this context before. And, the number of decisions, in which the SJC
has held and reasoned that, regardless of its own perceived policy preferences,
it has no authority to graft more language upon, or alter, statutory text, are
legion. Generally-speaking, it is the job of the Legislature to enact laws, and
the courts to interpret them, not to amend or change statutory language,
including extending statutory deadlines, even if there were exceedingly good
policy reasons for doing so. But, again, the body that ultimately makes the
rules and decides if MA law has been broken or violated, the SJC, apparently
has ordered this deadline “tolled”. It speaks, and generally we must listen.
Who are practitioners to appeal to, if the SJC has violated its own rules? On
matters of MA State law, the SJC has the final word.
Having taken an informal poll of
colleagues—names will be withheld to protect the innocent—the consensus appears
to be that, yes, these orders appear to apply to the 20-day appeal period under
the Zoning Act, and yes, this type of extension seems at a minimum to be
unprecedent, if not violative of separation of powers, but what is a
practitioner going do about it? For the reasons already stated, it would be an
apparent fool’s errand to try to convince the SJC that it had acted ultra
vires during an extreme public health emergency. Doctrinal purity must bend
to practical exigencies. And, who wants to be that attorney—the one who
complains about finite, though potentially illegal, extensions granted during a
serious crisis? To avoid this type of conversation, quarrel and issue,
practitioners appear to be advancing from the premise that, where possible, it
would be preferable to continue to comply with the 20-day deadline, and only
seek to take advantage of the emergency orders’ extensions, when/if Covid-19
truly, practically prevented an appeal and notice from being filed within the
20-day appeal period otherwise prescribed by the statute.
Regardless of how it should be practically
approached, this matter of the interplay between the SJC’s emergency orders and
the 20-day appeal period under the Zoning Act is a microcosm of what has been
happening more broadly, throughout the country. Our rule of law is not
particularly set up or suited to handle emergencies of the type that we have
been enduring. Enactment of broader emergency powers can be scary and
dangerous, because other polities have seen such powers abjectly abused. But,
the present crisis demonstrates that it would be doctrinally cleaner, and
perhaps better for the long-term health of the rule of law, for the legislative
branches of Federal, State and local governments to grant executive and
judicial branches the express latitude needed to meet emergency challenges,
such as the Covid-19 pandemic, rather than force them to act arguably illegally.
Norms, rules and separation of powers matter. They should be respected, lest
they be set asunder.
Nick
Shapiro is a shareholder at Phillips
& Angley. Nick joined the firm as an associate in 2011.
His focus and practice areas are concentrated on zoning, land use, real estate
and telecommunications, counseling real estate developers, private land owners,
neighbors and abutters, and institutional/corporate clients throughout the
Commonwealth. Nick is a member of the
REBA Board of Directors and serves as co-chair of the Association’s Land Use
and Zoning Section. Nick’s email address
is nshapiro@phillips-angley.com.
