Board of Appeals denies late appeal of planning board permit, sets 45‑day window to appeal board decision

The Board of Appeals on April 7 denied an appeal of a Planning Board permit as untimely, with the board finding the appellant filed more than the allowed appeal period after the Planning Board’s action and voting to dismiss the appeal by a 4–0 vote with one abstention.

The ruling matters because the board treated the question as strictly jurisdictional: whether the written appeal was filed within the ordinance’s deadline. If the Board of Appeals’ denial stands, the developer may proceed and the appellant’s only remaining option is to seek further judicial review within the new appeal window the board set.

At a public hearing, Tim Pease, counsel representing the Board of Appeals, told members that the Planning Board voted on the permit on June 5, 2024 and issued a written decision on June 11, 2024. “At a minimum, the appeal was 64 days late, if you count it from the written decision,” Pease said, adding that if the board used the June 5 meeting date the appeal would be 70 days late. The board’s ordinance requires appeals to be filed within 30 days unless good cause is shown, Pease said.

Edward Kelleher, attorney for Drummond & Woodson (the developer’s counsel), argued the burden was on the appellant to document any medical or other excuse. “The burden is on Mr. Brooks to show that he had good cause for delay,” Kelleher said, noting the ordinance language (identified in filings as section 13‑o‑4 of article 13, chapter 56) and telling the board that he had seen no medical evidence in the record that would satisfy that standard.

Kelleher also said his client did not learn of the appeal’s pendency until November 19 and had proceeded with development work after believing the Planning Board decision was final. Mr. Black, a representative of LV Development, was present and available to confirm that the developer had relied on the Planning Board approval.

The chair moved that the board find the appeal untimely and deny it; the motion was seconded and carried with four voting in favor and one abstention. The chair announced that the board would prepare a written decision “very quickly.” The board also set the period for filing an appeal of the Board of Appeals’ decision: the chair and members confirmed on the record that the appellant has 45 days from the date of the board’s decision to file a further appeal.

The appellant, identified in meeting materials as Mr. Brooks, did not appear at the hearing in person; the record contains multiple written submissions from the appellant and the developer dated between January and April, which the board reviewed in advance. The board and counsel discussed that municipal officers generally cannot waive or change ordinance deadlines; counsel cited case law and the ordinance text in arguing the board’s jurisdiction to decide timeliness was narrowly defined.

The Board of Appeals adjourned after adopting the motion and agreeing to issue a written order. The decision as announced was procedural — denying the appeal because it was filed beyond the ordinance deadline — and does not resolve the underlying merits of the Planning Board’s permit decision. The record shows the Planning Board action remains in effect pending any timely appeal of the Board of Appeals’ ruling.