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17-P-382                                              Appeals Court

   BRIAN S. HICKEY & another1     vs. ZONING BOARD OF APPEALS OF
                                 DENNIS


                              No. 17-P-382.

           Suffolk.       February 5, 2018. - June 15, 2018.

             Present:    Green, C.J., Henry, & Singh, JJ.


Zoning, Notice, Appeal, Board of appeals: decision. Practice,
     Civil, Zoning appeal, Summary judgment. Notice.



     Civil action commenced in the Land Court Department on
April 20, 2016.

     The case was heard by Alexander H. Sands, III, J., on
motions for summary judgment.


    John E. Bowen for the plaintiffs.
    Jackie Cowin for the defendant.


    GREEN, C.J.       Section 17 of the Zoning Act, G. L. c. 40A,

sets out the procedural requirements for a person aggrieved by a

decision of a zoning board of appeals or special permit granting

authority to seek judicial review "by bringing an action within


    1   Mary P. Hickey.
                                                                     2


twenty days after the decision has been filed in the office of

the town clerk," and further specifies 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."     A

judge of the Land Court allowed the defendant's motion for

summary judgment, dismissing the plaintiffs' complaint, on the

ground that the plaintiffs did not timely give the required

notice to the town clerk.    Because the undisputed facts in the

summary judgment record establish that the town's assistant

clerk had actual knowledge of the plaintiffs' complaint within

the required time, we reverse the judgment.    See Konover Mgmt.

Corp. v. Planning Bd. of Auburn, 32 Mass. App. Ct. 319, 324-325

(1992) (Konover).

    Background.     The following facts are established by the

summary judgment record.    Plaintiffs Brian S. Hickey and Mary P.

Hickey own land abutting the location of a proposed stairway

leading to Cape Cod Bay.    The Dennis building commissioner

determined that the stairway would be a landscape feature not

subject to the setback requirements set forth in the local

zoning bylaws, and not requiring a building permit.

    The Hickeys unsuccessfully appealed that decision to the

defendant zoning board of appeals of Dennis (board).    After

voting unanimously to uphold the building commissioner's
                                                                    3


determination, the board filed its decision with the town

clerk's office on April 14, 2016.

     On April 20, 2016, the Hickeys timely filed their complaint

appealing the board's decision in the Land Court under G. L. c.

40A, § 17.   On April 21, 2016, the Hickeys' counsel sent copies

of the complaint by certified mail to each of the individual

members of the board, addressed to their respective homes.2    On

the same day, the Hickeys' counsel sent a package by certified

mail addressed to "Chairman, Zoning Board of Appeals" at the

Dennis town hall, which included copies of the same documents

sent to the board members individually.

     The chairman's packet was received at the Dennis town hall

on April 25, 2016, where it was routed to the office of the town

planner by some time on April 26, 2016.   After his receipt of

the chairman's packet, the town planner had a series of

conversations with the assistant town clerk.   At some point

prior to May 4, 2016 (the end of the twenty day appeal period),

the town planner told the assistant town clerk that the

plaintiffs had filed their complaint in the present case in the




     2 In addition to the complaint, the packages included a
cover letter, a copy of a summons, a civil action cover sheet,
and the Land Court's Limited Assistance Representation
Information Sheet.
                                                                   4


Land Court.3   It is, in other words, undisputed that the

assistant town clerk had actual knowledge that the plaintiffs

had appealed the board's decision before the appeal period

expired.4

     It is undisputed that the Hickeys' counsel did not mail a

copy of the complaint to the Dennis town clerk.   Moreover,

neither the clerk nor the assistant clerk saw a copy of the

Hickeys' complaint before May 5, 2016.   The Hickeys' counsel's

only direct communication with the town clerk's office for the

purpose of providing notice of the appeal occurred by e-mail

dated May 5, 2016 -- which he sent after the town clerk

certified that she had not received any notice of an appeal

within the required timeframe.5


     3 The parties agree that service of notice on the assistant
clerk is the equivalent of service on the clerk. See Konover,
supra at 324 n.9.

     4 In allowing the defendant's motion for summary judgment,
the motion judge reasoned that because the assistant clerk's
knowledge of the plaintiffs' complaint relied on a hearsay
statement by the town planner rather than the assistant clerk's
direct personal observation of the complaint, it did not
constitute "knowledge" of the complaint within the meaning of
Konover. We are aware of no authority requiring, and we see no
reason for, the imposition of such adjudicative evidentiary
standards on the assessment of the clerk's actual knowledge that
an appeal has been taken.

     5  The town clerk's May 5, 2016, certification was attached
to the board's original decision and stated that "this decision
was filed on April 14, 2016, and no appeal was filed within 20
days after date of filing." Later that day, apparently
recognizing that the earlier certification did not accurately
                                                                   5


    The board moved to dismiss the Hickeys' complaint, based on

the failure to file notice of the appeal or a copy of the

complaint with the town clerk before May 4, 2016.   After the

Land Court judge permitted limited discovery on the issue, the

board converted its motion to one for summary judgment.     The

judge then allowed the motion, and entered judgment dismissing

the complaint.   This appeal followed.

     Discussion.   "[R]eceipt of notice by the town clerk is a

jurisdictional prerequisite for an action under G. L. c. 40A,

§ 17, which the courts have 'policed in the strongest way' and

given 'strict enforcement.'"   See Konover, 32 Mass. App. Ct. at

322-323, quoting from Pierce v. Board of Appeals of Carver, 369

Mass. 804, 808 (1976) and O'Blenes v. Zoning Bd. of Appeals of

Lynn, 397 Mass. 555, 558 (1986).   The purpose of notice to the

town clerk is to provide "notice to interested persons that the

decision of the board of appeals has been challenged and may be

overturned."   Pierce, supra at 808.

    However, "[s]trict compliance with all the details of the

notice provision is not required, so long as notice adequate to

serve the purpose of the provision is given within the period



describe matters as known to the clerk's office, the town clerk
affixed a revised certification to the board's decision, stating
"this decision was filed with the Town Clerk's office on April
14, 2016, and no Notice of Appeal from the decision was filed
with the Town Clerk's Office within 20 days of April 14, 2016."
                                                                       6


limited."   Costello v. Board of Appeals of Lexington, 3 Mass.

App. Ct. 441, 443 (1975).   By way of example, in McLaughlin v.

Rockland Zoning Bd. of Appeals, 351 Mass. 678, 680 (1967), the

court concluded that the purpose of the statute was met when the

plaintiffs timely filed a copy of their complaint with the town

clerk, even though they did not file a separate notice stating

that it had been filed in court.   Similarly, the court found

notice adequate in Carr v. Board of Appeals of Saugus, 361 Mass.

361, 362-363 (1972), where the plaintiff timely filed a notice

of the appeal with the town clerk but did not include a copy of

the complaint.   In Garfield v. Board of Appeals of Rockport, 356

Mass. 37, 39 (1969), the plaintiffs delivered notice that they

had filed an appeal and a copy of the complaint to the town

clerk at her home at 6:35 P.M. on the last day of the appeal

period, after the town offices had closed.   The court held that

delivery to the clerk at her home satisfied the notice

requirement.   Ibid.

    Finally, in the circumstances closest to those in the

present case, notice was deemed adequate in Konover, supra.       In

that case, counsel for the plaintiff had prepared two sets of

papers for service at town hall -- one for service on the board

and the other for delivery to the town clerk.   Id. at 320-321.

Both were placed together in a sealed envelope marked "Summonses

to the Auburn Planning Board in the Town of Auburn."     Id. at
                                                                           7


320.       The process server, unaware that the envelope contained

two sets of papers, left the sealed envelope with the secretary

to the town planner.       Ibid.   Days later, but within the appeals

period, the town planner opened the envelope and walked across

the hall to the town clerk's office where he told the clerk and

an assistant town clerk that he had received the plaintiff's

complaint.      Id. at 321.   He showed the assistant town clerk the

front page of the complaint -- "to see if she received what I

had received" -- which she had not.        Ibid.    After that, the town

planner placed all of the documents he had received into a file

in the board's office, and no formal notice of the appeal was

ever filed with the town clerk.       Id. at 322.    In concluding that

the requirements of § 17 had been met, the court observed that

the "key element" in cases "relaxing the rigors of strict

compliance with the zoning appeal statute" is that within the

twenty-day statutory appeal period "the clerk is actually

notified that an appeal -- i.e., a complaint -- has in fact been

timely filed," id. at 324-325, and that "it is the state of the

clerk's knowledge, not the physical location of the papers, that

controls."6      Id. at 324-325.




       The paramount significance of the state of the clerk's
       6

knowledge was reiterated in Bingham v. City Council of
Fitchburg, 52 Mass. App. Ct. 566, 571 (2001), even as it
declined to accept as adequate a notice of appeal delivered to
the mayor fifteen minutes after the clerk's office closed on the
                                                                    8


     As we have observed, in the present case it is established

that the clerk knew sometime before May 4, 2016, that the

plaintiffs had filed a complaint in the Land Court appealing the

April 24, 2016, decision of the board.   Since it is the state of

the clerk's knowledge that controls, the requirements of G. L.

c. 40A, § 17, were satisfied, and the order allowing the

defendant's summary judgment motion was error.7

                                   Judgment reversed




twentieth day, since the clerk did not learn of the appeal until
the following day.

     7 In the present case, the plaintiff served the individual
members of the board, and mailed a copy of the complaint to the
chairman of the board at the town hall. The case accordingly
does not require us to consider whether notice would be adequate
if it came to the attention of the town clerk by means other
than through communications with other officials charged with
administration of the local zoning by-law.
     SINGH, J. (dissenting).     It is undisputed that the

plaintiffs failed to give timely "[n]otice of the action with a

copy of the complaint" to the town clerk as required by G. L.

c. 40A, § 17.     Nonetheless, they were able to depose the town

clerk, the assistant town clerk and the town planner in an

effort to establish that the town clerk had actual knowledge of

the filing of their complaint.     I believe this inquiry into the

"actual knowledge" of the clerk removes the burden from where it

properly should be placed, squarely on the shoulders of the

plaintiffs.     Where a party has failed in its statutory notice

obligation, local officials should not be drawn into litigation.

     I acknowledge that dismissal of an appeal is a severe

sanction for failure to give timely notice to the town clerk,

particularly where it appears that the plaintiffs timely filed a

complaint in court to challenge the decision of the local zoning

board of appeals.     Given that the requirement of G. L. c. 40A,

§ 17, is a jurisdictional requisite to judicial review, however,

see Garfield v. Board of Appeals of Rockport, 356 Mass. 37, 39

(1969), this requirement must be enforced even where it leads to

harsh results.1    See Bjornlund v. Zoning Bd. of Appeals of


     1 The requirement of notice to the town clerk appears in the
first paragraph of G. L. c. 40A, § 17. The second paragraph
describes those persons who must be named as defendants in a
zoning appeal -- and the list does not include the town clerk.
See G. L. c. 40A, § 17. The statute goes on to provide a method
of supplying notice to the defendants "instead of the usual
                                                                   2


Marshfield, 353 Mass. 757, 757 (1967); O'Blenes v. Zoning Bd. of

Appeals of Lynn, 397 Mass. 555, 558-559 (2001); Costello v.

Board of Appeals of Lexington, 3 Mass. App. Ct. 441, 442 (1975);

Bingham v. City Council of Fitchburg, 52 Mass. App. Ct. 566,

566-567 (2001).

    The Hickeys argue that their failure to serve the town

clerk with notice of their appeal should be excused because the

assistant town clerk was told by the town planner that he had

received the Hickeys' complaint.   In doing so, they rely

primarily on Konover Mgmt Corp. v. Planning Board of Auburn, 32

Mass. App. Ct. 319 (1992) (Konover).




service of process" in order "to avoid delay in the
proceedings." G. L. c. 40A, § 17. Such notice must be sent to
the defendants within "fourteen days after the filing of the
complaint." G. L. c. 40A, § 17. Here, it is undisputed that
the Hickeys supplied notice to the board members both in the
manner directed by the statute and also by sending a packet
including a summons and copy of the complaint (addressed to the
board's "Chairman") to the town offices with a cover letter
invoking Mass.R.Civ.P. 4, as amended, 402 Mass. 1401 (1988).
Because the town clerk is not a defendant to a zoning appeal, it
is apparent that the two separate notice requirements found in
§ 17 serve entirely different purposes. Thus, it is clear in
the statutory scheme that providing notice of the action to the
named defendants is not the same as providing notice to the
clerk. Moreover, lapses in compliance with the former
requirement have been forgiven to an extent that lapses in
compliance with the latter have not. See Pierce v. Board of
Appeals of Carver, 369 Mass. 804, 809 (1976) ("there is a
different approach to the carrying out of the later steps of an
action which has been timely commenced and timely recorded in
the town clerk's office").
                                                                   3


    Under the circumstances recited in Konover, this court held

that the plaintiff had adequately complied with G. L. c. 40A,

§ 17.    In so doing, we found that the "key element" in cases

"relaxing the rigors of strict compliance with the zoning appeal

statute" is that within the appeals period "the clerk is

actually notified that an appeal -- i.e., a complaint, has in

fact been timely filed."     Id. at 324-325.   Referring to

Garfield, supra, the Konover court wrote, "[t]he decision makes

it clear that it is the state of the clerk's knowledge, not the

physical location of the papers, that controls."     Konover, supra

at 325.     In Garfield, however, the court did not discuss the

state of the clerk's personal knowledge as a basis for its

decision.    Instead, the court relied on the statutory language -

- emphasizing that, in contrast to G. L. c. 40A's provisions for

filing the board's decision "in the office of the city or town

clerk," the language relevant to judicial appeals required only

that notice be given "to . . . (the) city or town clerk," and

did not require filing in the clerk's "office."     Garfield, supra

at 39.

    There is, however, another "key element" that is apparent

from Konover and the cases cited therein -- which is that,

before the notice requirement had been "relaxed," there had been

an attempt by the plaintiff to provide the clerk with written

notice of the appeal by some reasonably effective (albeit
                                                                   4


imperfect) means.   See Konover, supra at 321 (counsel sent out

notice packet for service on town clerk).   See also, McLaughlin

v. Rockland Zoning Board of Appeals, 351 Mass. 678, 679 (1967)

(complaint was delivered to town clerk without a notice of

filing); Garfield, 356 Mass. at 39 (notice and copy of complaint

were delivered to clerk at home, after close of business); Carr

v. Board of Appeals of Saugus, 361 Mass. 361, 361 (1972) (notice

of filing was delivered to town clerk without complaint).

      Moreover, in all of these cases, the clerk's "actual

knowledge" of the appeal has been linked in some way to the

attempt by the plaintiff to serve her with notice.2   See Konover,

supra at 321 (town planner received notice intended for clerk

and informed clerk that appeal had been filed).   See also,

McLaughlin, supra at 679; Carr, supra at 361; Garfield, supra at

39.




      2The motion judge addressed this issue by interpreting
Konover in such a way as to limit "personal knowledge" to
instances where the clerk or assistant clerk has actually seen
the complaint, so as to avoid reliance on hearsay. Although the
majority sees no reason to apply "adjudicative evidentiary
standards" on assessment of the clerk's "actual knowledge," it
provides no guidance as to how such an assessment is to be made.
There is good reason for the clerk not to rely on
representations from other individuals. First, those other
individuals may be mistaken. Second, not all individuals are
entitled to the same degree of trust. The clerk is ultimately
responsible for certifying the status of an appeal. The public
is entitled to a certification based on the clerk's first-hand
knowledge, not the passing on of mere hearsay.
                                                                   5


     In other words, in my view, Konover does not stand for the

proposition that a clerk's actual knowledge of a pending appeal

is necessarily dispositive of the jurisdictional question,

regardless of the source from which that knowledge might flow.3

Such an exception, in all cases where the clerk has learned of

an appeal by some happenstance independent of the plaintiff's

efforts at perfecting the appeal, could negate entirely the

statutory requirement that timely notice be provided to the

clerk.   Moreover, such an exception would have the effect of

requiring town clerks (as well as other town officials) to

submit to litigation discovery in every instance where the

plaintiff has failed to give the formal notice required by the

statute.4   While Konover and Garfield "expanded the manner in


     3 The majority takes the position that, given the Hickeys'
notice to the board, we need not consider whether notice would
be adequate if it came to the attention of the town clerk by
some means other than communication among town officials. In
every case of this nature, however, town officials will be named
defendants and will therefore receive notice through service.
See G. L. c. 40A, § 17 (second paragraph). I would expect that,
in most cases, this information would further be transmitted to
the town clerk through casual conversation among officials
within town hall. Thus, this view has the potential to nullify
the legislative requirement that separate notice be sent to the
town clerk. See G. L. c. 40A, § 17 (first paragraph).

     4 Not only is such involvement in litigation burdensome, it
causes town officials to be placed in the untenable position of
assisting a party with perfecting his or her appeal. In the
context of a zoning appeal, what is helpful to one party may be
harmful to another. And where two neighbors are at loggerheads
over a proposed project, both are the constituents of town
officials. Here, the town planner and/or the assistant town
                                                                    6


which the deadline could be met," see Bingham, supra at 571, I

do not believe this expansion is broad enough to encompass this

situation where there has been no attempt by the plaintiff to

provide the written notice to the clerk required by the statute.

    Written notice is contemplated by the statute's reference

to "notice of the action with a copy of the complaint."     G. L.

c. 40A, § 17.   See County of Norfolk v. Zoning Board of Appeals

of Walpole, 16 Mass. App. Ct. 930, 930 (1983) (telephone notice

that an appeal will be taken is nugatory because it puts nothing

in the record by which interested third parties would be

forewarned that the zoning status of the land is still in

question).   By relying on an oral representation to satisfy the

notice requirement to the town clerk, the majority further

extends the exceptions to the rule. See McLaughlin, supra (copy

of complaint filed with clerk); Garfield, supra (notice of

appeal and copy of complaint delivered to clerk); Carr, supra




clerk may well have scrupulously refrained from any active
attempt to help the Hickeys by curing the notice defect -- which
would have been to the detriment of project's proponent. I view
such behavior as appropriately neutral, and not the sort of
willful attempt to dodge notice or process that would be
improper. As the town planner testified at deposition, "[the]
responsibility to file with the Town Clerk the appeal of a
decision is not mine . . . It's not my job to provide the Town
Clerk what the attorney for the appellant is supposed to provide
the Town Clerk."
                                                                  7


(notice of appeal filed with clerk); Konover, supra (copy of

complaint shown to clerk).

     For these reasons, I would hold that a plaintiff seeking

judicial zoning review is not entitled to the benefit of the

town clerk's personal knowledge for purposes of satisfying G. L.

c. 40A, § 17, unless that knowledge can reasonably be connected

to a timely attempt to provide formal, written notice to the

clerk by some reasonably effective means.   Such a rule is

consistent with Konover, where the court emphasized the details

of the plaintiffs' counsel's attempted service on the clerk's

office, and found that his failure to do so was a "'relatively

innocuous' misstep that was not 'so repugnant to the procedural

scheme, so destructive of its purposes, as to call for

dismissal."5   Konover, supra at 327, quoting from Schulte v.

Director of the Div. of Employment Sec., 369 Mass. 74, 79

(1975).




     5 As stated in Konover, "[s]trict compliance with § 17 is
not an undue burden; nor would be an inquiry directly to the
town clerk's office prior to the expiration of the twentieth day
as to the fact of the clerk's receipt of the papers. Double-
checking the accomplishment of such jurisdictional and
potentially outcome-determinative matters appears to be well
within the duty of competence within which a lawyer, as a
fiduciary, owes to the client -- a duty that cannot be delegated
without proper supervision and control." Konover, supra at 327,
n.13 (noting that Konover's procedural misstep might have been
fatal in different circumstances).
                                                                    8


    Here, because the plaintiffs served only the board and

made no attempt to provide separate notice to the town clerk, as

required by the statute, I believe the appeal was properly

dismissed by the Land Court.   See Pasqualino v. Board of Appeals

of Wareham, 14 Mass. App. Ct. 989, 990 (1982).   I would affirm.
