BRIAN S. HICKEY & another
ZONING BOARD OF APPEALS OF DENNIS
Heard: February 5, 2018.
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.
E. Bowen for the plaintiffs.
Cowin for the defendant.
Present: Green, C.J., Henry, & Singh, JJ.
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 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) .
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.
Hickeys unsuccessfully appealed that decision to the
defendant zoning board of appeals of Dennis (board). After
voting unanimously to uphold the building commissioner's
determination, the board filed its decision with the town
clerk's office on April 14, 2016.
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. 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.
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 Land Court. 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.
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
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 ...