Deadlines matter, particularly in the world of Massachusetts zoning. Statutory deadlines govern everything from when a board must hold hearing to the number of days within which to file an appeal. Need a zoning freeze? There are multiple deadlines for that. And the result of missing a deadline is often draconian: waiver of appeal rights, loss of zoning freeze protection, dismissal of cases.

For this reason, the steady chipping away of one such deadline requirement is surprising and raised the hackles of at least one member of the Massachusetts Appeals Court in a decision this month. The facts of Hickey v. Zoning Bd. of Appeals of Dennis are straightforward and focus on a dispute regarding access to the sea, as many land use disputes in Massachusetts seem to. The Hickeys owned property adjacent to a proposed stairway leading to Cape Cod Bay, which the Dennis building inspector determined was a landscape feature and hence not subject to setback requirements or requiring a building permit. The Hickeys appealed that decision to the Dennis Zoning Board of Appeals, which unanimously supported the building inspector.

The Hickeys decided to appeal that decision to the Land Court, which is where they arguably ran afoul of M.G.L. c. 40A, § 17’s requirement of “[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.”  As the Appeals Court acknowledged, there is good reason for this requirement: it allows the public to know whether a decision by a local board is being challenged or is now final by consulting the public files of the town clerk.  

The Hickeys’ counsel checked the rest of the technical boxes by filing the action with the Land Court within 20 days and sending by certified mail a copy of the complaint to each of the members of the Zoning Board individually at their home addresses. But instead of sending a copy of the complaint plus a notice document to the town clerk, the Hickeys 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. That package made its way to the town planner who discussed the filing of the appeal with the assistant town clerk prior to the expiration of the 20-day appeal period. However, having not received a complaint or notice of appeal, the assistant town clerk certified that there had been no appeal.

At the Land Court, the Town moved to dismiss the case for the Hickeys’ failure to comply with the notice requirement. The Land Court permitted discovery on this issue, which apparently included depositions of town officials to ascertain the path of the Hickeys’ package at town hall and what and when the assistant town clerk knew regarding the filing of the appeal. As a result, as the Appeals Court noted, it was undisputed that (1) the Hickeys’ counsel did not mail a copy of the complaint to the Dennis town clerk; (2) neither the clerk nor the assistant clerk saw a copy of the Hickeys’ complaint before appeal deadline had expired; and (3) the assistant town clerk had actual knowledge that the Hickeys had appealed the decision before the appeal period had expired. Ultimately, the Land Court dismissed the appeal as failing to meet the Section 17 requirement of providing written notice to the town clerk.

The Appeals Court started out firm, reciting a tough standard: “[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,’” quoting Konover Mgmt. Corp. v. Planning Bd. of Auburn, 32 Mass. App. Ct. 319, 322-323 (1992), which is in turn quotes Supreme Judicial Court cases from the 1970s and 1980s (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)). And from that stringent principle, the Court recited how cases have chipped away at the rule. “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 limited.’” quoting Costello v. Board of Appeals of Lexington, 3 Mass. App. Ct. 441, 443 (1975):

• It’s ok if you file a copy of the complaint but not a separate notice of appeal. McLaughlin v. Rockland Zoning Bd. of Appeals, 351 Mass. 678, 680 (1967);
• It’s fine if you file a copy of the notice of the appeal but not the complaint. Carr v. Board of Appeals of Saugus, 361 Mass. 361, 362-363 (1972);
• No problem if you deliver the complaint to the town clerk at her home at 6:35 pm on the last day of the appeal period after town offices are closed. Garfield v. Board of Appeals of Rockport, 356 Mass. 37, 39 (1969).
• Don’t worry if the process server doesn’t realize you have two different packages inside the envelope and just leaves the entire thing for the wrong person at town hall, so long as the clerk learns of the appeal and the documents make it to the right place with the town clerk by the filing deadline. Konover Mgmt. Corp., 32 Mass. App. Ct. 319, 324-325.

Despite the talk of “strict enforcement” and policing this deadline “in the strongest way” and the clear statutory language that a particular set of documents – notice of action with a copy of the complaint – be provided to the town clerk within the specified time period, the unifying principle for the cases according to the Appeals Court apparently is that the “state of the clerk’s knowledge, not the physical location of the papers” controls. The Appeals Court found this to be a straightforward application of that principle, reversing the Land Court on whether the Hickeys had complied with Section 17’s notice requirements.

As the dissent by Associate Justice Singh explains, the Appeals Court avoided two important considerations and failed to grapple with the implications of this steady whittling away of this requirement. First, Justice Singh takes issue that previous cases rest of what is in the clerk’s mind. Instead, distinguishing the Garfield case’s home delivery to the clerk, Justice Singh pointed out that the case turned on whether the paperwork needed to be filed in the clerk’s office, not that the clerk had knowledge of the appeal. Second, she is upset that the Appeals Court has brushed aside the requirement “there had been an attempt by the plaintiff to provide the clerk with written notice of the appeal by some reasonably effective (albeit imperfect) means.” In Justice Singh’s analysis, an appellant needs to try to reach the town clerk to at least be considered for flexibility in application of this rule. 

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. 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.

In addition to the additional litigation burden this approach is likely to entail as municipal employees are deposed about errant packages and their knowledge of appeals, focus on the clerk’s knowledge raises questions of whether purely oral notification can be sufficient. Except the Appeals Court has dismissed phone call compliance in County of Norfolk v. Zoning Bd. of Appeals of Walpole, 16 Mass. App. Ct. 930, 930 (1983) plus oral notification leaves the clerk’s office with nothing for the file to be reviewed by members of the public.

Simply put, the best practice remains the simplest.  Hand deliver a copy of the complaint and a separate notice of appeal to the town clerk before the expiration of the 20-day appeal period. Obtain a date-stamped copy of the notice and complaint for your records as proof. Do it all as early as possible and check it carefully a day or two before the deadline expires.

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