The Appeals Court decided in July, and the Supreme Judicial Court denied further appellate review in September, the case of Carney v. Town of Framingham, 79 Mass. App. Ct. 1129, review denied, 460 Mass. 1111 (2011).

Certiorari is a type of court challenge common to tribunal decisions made outside the ambit of zoning, where a statutory type of review is provided in the Zoning Act.
You appreciate that a certiorari case is a court review of the administrative record upon which the challenged decision was based, essentially on a "certified record" of the proceedings, to see if the board committed legal errors warranting a remedy.

Outside the real estate context, of course, our boards of selectmen, boards of education, and boards of public works have become very familiar with certiorari review.

In the land use and environmental context, of concern to us here, certiorari review applies to such boards as local conservation commissions under Home Rule wetland bylaws, boards of health under state codes and local regulations, sand and gravel/earth removal boards under general bylaws, historic commissions outside the zoning context, boards of public works for sewer, water, electric and roadway issues, boards of selectmen (under various non-zoning bylaws and state laws), and city councils for certain land use decision making.

The certiorari statute requires that an appeal "shall be commenced within sixty days next after the proceeding complained of." Counsel for parties wishing to appeal the decision of a local board over the years disagreed whether this language required that a lawsuit be filed within sixty days of the date the board voted, the date the client received notification of the decision, or instead the date that the written permit, denial, or order was actually issued.

To some it appeared logical to start the sixty days running at the board vote or other action or inaction that had operative legal effect, especially when any later board writing was optional, just ministerial, or merely memorialized the decision.

To others it seemed common sense to run the sixty days from the phone call, letter, or other actual notice the prospective plaintiff learned of the decision.

To still others it looked appropriate to count from the date of the ultimate written document, especially when it is a permit type approval or disapproval. After all, one cannot read it, and assess it for potential suit, until understanding the nature and reasons for any disapproval or the conditions imposed in any approval.

This Appeals Court decision provides an important lesson for town counsel and city solicitors representing boards about local board enforcement. The date of issuance on the enforcement order is irrelevant for determining the deadline for filing a certiorari appeal. The sixty-day period to file a petition for certiorari review will begin running on the day the vote is taken to issue the enforcement order.

The facts were as follows. On April 2, 2008, the Framingham Conservation Commission voted to issue an enforcement order to the plaintiff, William Carney, for alleged violations of the state Wetlands Protection Act and the Town's wetlands bylaw. The enforcement order (which was preceded by a notice of violation) required that Mr. Carney submit a restoration plan, which he did. The Commission considered the matter at its June 4, 2008 meeting, and voted that same day to amend the enforcement order. On June 6, 2008, the Commission issued the amended enforcement order.

On August 5, 2008, Mr. Carney filed a complaint in Superior Court pursuant to G.L. c. 249, § 4, seeking certiorari review of the decision to issue the enforcement order. On summary judgment, the Superior Court granted the Town's motion to dismiss Mr. Carney's complaint as untimely. Mr. Carney challenged this decision, alleging that the Superior Court judge erred in dismissing his action.

The Appeals Court discussed the language in M.G.L. ch. 249, §4 and cited earlier cases. The key pronouncement of the Appeals Court is this proposition: "The term 'proceeding complained of' refers to 'the last administrative action' taken by an agency." The Court made clear this precept: "The last administrative action occurs when the administrative agency makes a final decision on the issue at hand, not when it later memorializes that determination in written form."

Therefore, the Appeals Court, and the SJC by not taking further review, determined that Mr. Carney's appeal of the board's enforcement order was filed late and his court case properly dismissed.

Incidentally, the court left open the question of whether the "last agency action" was April 2, 2008 (the hearing at which the Commission voted to issue the original enforcement order) or June 4, 2008 (the hearing at which the Commission voted to issue the amended order) because the Complaint, filed on August 5, 2008, was filed more than sixty days after either date.

We offer this important caveat: this ruling is an Unpublished Disposition of the Appeals Court. Rule 1:28 decisions of the Appeals Court are primarily addressed to the parties and so may not fully address the facts of the case or decision rationale. This ruling was not circulated to the entire court and so represents only the view of the panel of justices on this case. The ruling may be cited for persuasive value, but not as binding precedent.

With that disclaimer in mind, we believe this decision applies persuasively to several other types of conservation commission (and other land use board) decisions beyond enforcement situations. Good examples are actions on permit extensions (beyond the first term of years) and rulings on certificates of compliance (approving usually with some continuing conditions). Like enforcement orders, these are not appealable to MassDEP and there is no statutory appeal route. Appeal is to court in the nature of certiorari and the operative end of the proceeding is the board vote, even though it is to be memorialized in a written document later.

Municipal attorneys as well as counsel for parties dealing with local boards will want to consider carefully whether and how this ruling, and this way of calculating the sixty-day deadline, applies to board actions outside the enforcement setting, such as those culminating in permits from conservation commissions and other non-zoning boards.

For permit decisions, in contrast to enforcement situations, it is worth noting that the state Wetlands Protection Act, the MassDEP regulations, the state permit form itself, most Home Rule wetlands bylaws, many conservation commission regulations, and the local permit form itself, all contemplate or specify that the issuance date is the date on the form, which in turn is the date of mailing or attempted first delivery to the permit applicant.

While appeals from the state wetlands permit (or denial or inaction) are to MassDEP, by statute, appeals from the local bylaw permit decisions are to court in the nature of certiorari. Many such certiorari cases over the years were filed within sixty days from permit issuance or denial, but longer than sixty days from the last hearing or meeting. Some of these cases are still pending.

We repeat the straightforward language of the Appeals Court here, approved by the SJC, drawing on earlier decisions: "The last administration action occurs when the administrative agency makes a final decision on the issue at hand, not when it memorializes that determination in written form."

On the other hand, we observe that in a key earlier decision cited by the Appeals Court, the Appeals Court itself described the legal deadline as running from what is the "operative" conclusion of the proceedings complained of. In that case it found the "critical event" was the date a hearing officer issued the final decision of a committee or, at the latest, when the plaintiff received seasonable notice of it. Committee for Public Counsel Services v. Lookner, 47 Mass. App. Ct. 833, at 837 (1999).

After the recent Carney case and recalling the Lookner case, which must be read and understood together, we will be careful to count the sixty-day certiorari statute of limitations from the critical event that is the operative conclusion of the board proceeding, commonly the date the board makes its final decision on the issue at hand or, at the latest, seasonable notice thereof to the applicant.