Massachusetts Court Sheds Light on Procedure for Appealing a BHAC Determination

Photo of Heather V. Baer

In Maiocco v. Leggs, 32 Mass.L.Rptr. 228 (2014), Judge Robert Gordon considered when a party’s right to appeal a decision of the Beacon Hill Architectural Commission terminated. Under 1995 Mass. Acts, Chapter 616, the proponent of a construction project involving exterior architecture within the Beacon Hill Historic District must apply to the Beacon Hill Architectural Commission for approval of the project in the form of a Certificate of Appropriateness (COA). After holding a public hearing on the application, the Commission “determine[s]” whether the proposed construction project is “appropriate to the preservation of the historic Beacon Hill district…” Any party “aggrieved” by the Commission’s decision must notify the Commission of its intent to appeal within 8 days of mailing of notice of the determination and must file its appeal in Suffolk Superior Court within 30 days of the “determination.”

In Maiocco, there was a 32-day delay between the public hearing at which the Commission voted to grant the COA subject to conditions and mailing of notice that the COA was granted. An abutter to the property at which the proposed construction project was to occur filed notice of its intent to appeal the COA within 8 days of the issuance of written notice of the Commission’s determination and, thereafter, its appeal. The applicant for the COA moved to dismiss the appeal, arguing it was untimely because the Commission’s vote at the hearing was its “determination” and that determination commenced the appeal period.

The Court noted that the language of the statute called for the Commission to “make” the determination of appropriateness after the hearing and that certain provisos that were clarified in the written COA were only “cursorily” discussed at the hearing. It also pointed out that the applicant’s interpretation could deprive potentially aggrieved parties who did not attend the public hearing of notice within sufficient time to file an appeal and that the reasons supporting Commission’s decision, on which an appeal would be based, were not articulated until the written notice of the decision was issued. The Court held that it must construe the statute in way that “produces properly sequenced legal events and fulfills evident legislative intent in the broad sweep of disputes that may arise thereunder, not merely in the case sub judice.” It concluded that the Commission’s “official” determination was its written decision and that the 30-day appeal period commenced when notice of the determination was mailed.

To learn more about Fitch Law Partners LLP‘s real estate litigation practice, please click here.


Fitch Law Partners LLP reports news and insights on complex litigation topics. Clients, colleagues and friends may receive The Fitch Briefs by signing up here.