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Hickey v. Zoning Board of Appeals of Dennis

Appeals Court of Massachusetts, Suffolk

June 15, 2018

BRIAN S. HICKEY & another[1]
v.
ZONING BOARD OF APPEALS OF DENNIS

          Heard: February 5, 2018.

         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.

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

          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 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 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 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]

         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 ...


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