Friday, July 6, 2012

Appeals are never easy . . .

Sometimes it just doesn’t pay to even make the effort. While I have been a frequent critic of the hypertechnical requirements of the common law writ of certiorari here in Tennessee, as a means by which to appeal zoning and planning decisions, we Tennesseans certainly don’t have the worst of it. In a recent case from Massachusetts, the applicants gave notice of their intent to appeal, and sent the complaint and other papers by first-class mail to the court. Unfortunately, the envelope was misaddressed and it did not reach the court until approximately 2 weeks after the filing deadline (only 20 days Massachusetts). Evidently, if the documents had been sent via registered or certified mail, under Massachusetts law, they would have been deemed filed as of the date of mailing; but because the documents were sent by first-class mail, they were not deemed filed until actually received by the court. As a result, the appellant missed the statute of limitations, and the case was dismissed. The Court of Appeals upheld the decision, even in the face of a concession by the planning board that there was no prejudice to it by virtue of the late filing.

Perhaps my criticisms of the Tennessee procedure are too strong: certainly, other states have their own foibles in the area of administrative appeals.

Valley Comm. Dev. Corp. v. Ogulewicz, 2012 WL 1720178N (Mass. Land. Ct. 5/12/2012)

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