JACOB SHULAM, DC OCEAN REALTY LLC, IBFR REALTY LLC, RICHARD CELLA VENTURES LLC and LEAA REALTY LLC v. ROBERT CIGNETTI, MEIKI OLIN, JOSEPH MIELE, WILLIAM NOLAN, and REBECCA KILBORN as members of the Danvers Zoning Board of Appeals, ROHM & HAAS CHEMICALS LLC and MRS MANAGEMENT COMPANY LLC

Introduction

In this case, pursuant to G.L. c. 40A § 17, plaintiffs Jacob Shulam, DC Ocean Realty LLC, IBFR Realty LLC, Richard Cella Ventures LLC, and LEAA Realty LLC (owners of commercial condominium units at 150A Andover Street (Rte 114) in Danvers), [Note 1] appeal from a decision of defendant Danvers Zoning Board of Appeals granting defendants Rohm & Haas Chemicals and MRS Management Company a variance to build a 74,000 square foot indoor sports facility on the abutting property at 150 Andover Street. The appeal was filed eighty-eight days after the variance decision was filed with the Danvers Clerk’s office, beyond the twenty day deadline set forth in G.L. c. 40A § 17 ¶ 1. Plaintiffs allege that they did not receive notice of the November 30, 2009 variance application hearing and that this notice defect allows them to file within the ninety day period provided by G.L. c. 40A § 17 ¶ 2. In response, defendants contend that notice of the November 30, 2009 hearing complied with the requirements set forth in G.L. c. 40A § 11 and, even if defects in the notice existed, the plaintiff(s) to whom these defects related were not prejudiced thereby. If the defendants are correct, the plaintiffs’ claims (each of which was brought under G.L. c. 40A § 17) must be dismissed on jurisdictional grounds. Calnan v. Planning Bd. Of Lynn, 63 Mass. App. Ct. 384 , 389-90 (2005).

An evidentiary hearing was held before me to address the factual issue of whether notice had been properly mailed [Note 2] and, if not, whether the plaintiffs were prejudiced by the lack of proper mailing. Based on the testimony and exhibits admitted into evidence at the hearing, the parties’ admissions during the course of the proceedings, and my assessment of the credibility, weight, and inferences to be drawn from that evidence, and as more fully set forth below, I find and rule that notice of the November 30, 2009 hearing was adequately posted, published, and mailed by the Board of Appeals. See Zuckerman v. Zoning Bd. of Appeals of Greenfield, 394 Mass. 663 , 669 (1985) (finding that notice must only “be mailed,” not received; and when all mailing requirements were adhered to there was no notice defect which could extend the appeal deadline beyond twenty days). As there was no material defect in notice the plaintiffs’ appeal is subject to, and untimely under, the twenty day deadline laid out in G.L. c. 40A § 17 ¶ 1. Moreover, since the plaintiffs object not to the sports facility itself but only to its proposed use (and the scope of that use) of an alleged easement through their condominium’s parking area, and since that use (and scope of use) is the subject of a separate, independent lawsuit in which plaintiffs will have full opportunity to make that challenge, plaintiffs have not materially been prejudiced by any notice defects. Plaintiffs’ complaint is thus DISMISSED, in its entirety, with prejudice.

Facts

As previously noted, plaintiffs Jacob Shulam, DC Ocean Realty LLC, IBFR Realty LLC, Richard Cella Ventures LLC, and LEAA LLC are owners of commercial condominium units at 150A Andover Street (Rte 144) in Danvers. Defendants Robert Cignetti, Meike Olin, Joseph Miele, William Nolan, and Rebecca Kilborn are members of the Danvers Zoning Board of Appeals. Defendant Rohm & Haas Chemicals LLC is the owner of the property at 150 Andover Street. Defendant MRS Management Company LLC is the prospective purchaser of the property on which it proposes to construct a 74,000 square foot indoor sports facility. Such a facility requires a use variance. Rohm & Haas’ application for a use variance was granted by the Board of Appeals on November 30, 2009. The plaintiffs claim that they never received mailed notice of the board’s hearing (required by G.L. c. 40A § 11) and, on that basis, contend that it was never mailed to them. An evidentiary hearing was held to address this claim since, if notice was properly given, the plaintiffs’ appeal of the variance grant was untimely and this case must be dismissed.

Testimony at the hearing disclosed the following. When the application for the use variance was filed, the senior secretary for the Danvers Zoning Board of Appeals, Marybeth Burak-Condon, prepared the legal notice of that hearing and, in accordance with her usual practices, confirmed by a checklist she maintained, arranged for the posting, publication, and mailing of that notice. Posting was made on the “legal notices” bulletin board at town hall. Publication was made, on two occasions, in the Salem News, and also posted on the town’s internet web page. Mailing occurred as follows.

Ms. Burak-Condon began with the tax assessor’s map of the project site and its surrounding area. In accordance with the statutory requirements she then identified all parcels “directly opposite on any public or private street or way,” all abutting parcels, and all abutters to the abutters within 300 feet of the property line and requested the names of their owners from the tax assessor’s office. G.L. c. 40A § 11. The tax assessor’s office prepared both a list of these names and addresses “as they appear on the most recent applicable tax list” and a set of mailing labels. Ms. Burak-Condon then checked the labels against the list (they matched without discrepancy), put the labels on envelopes containing the board’s name and return address, prepared envelopes addressed to the planning boards of all abutting cities and towns, placed copies of the notice in each of these envelopes, put first class postage on each, and placed them in the office basket for outgoing mail. None were returned as “undeliverable” or for any other reason. Each of the plaintiffs’ condominium units was on the list and labels. The variance hearing was held. None of the plaintiffs attended. Each of the plaintiffs (or, in the case of the LLC’s, a representative) testified that they never received mailed notice.

The mailing addresses were correct in all respects for the units owned by Richard Cella Ventures LLC and LEAA LLC. Jacob Shulam’s address at 150A Unit 9 Andover Street, however, was listed as Jacob Shulan at 50A Unit 9 Andover Street and DC Ocean Realty LLC’s address at 150A Unit 8C Andover Street was listed as 150 Unit 8C Andover Street. Additionally, IBFR Realty LLC’s address at 150A Unit 4A Andover Street was listed as 150A Unit 2 Andover Street, but as Units 4A and 2 are shared offices (and as the tax assessor’s list indicates that mailings for both are to go to Unit 2) this was not a material error.

Deposition testimony (by agreement) was offered from Ms. Sally Howell, the US Postal Service letter carrier for the Andover Street route at the time of the mailing in November of 2009. Ms. Howell testified that there is no “50A” Andover Street (the address on the list for Mr. Shulam). That section of Andover Street was on her route, however, and she stated that if a letter to Mr. Shulam (whom she knew from previous special deliveries) was addressed to 50A Andover Street she would have known to deliver, and have delivered it, to 150A Andover Street instead. I infer that she would have done, and did, the same for DC Ocean Realty LLC (listed as “150 Unit 8C Andover Street” rather than “150A”), particularly in the light of her testimony that if mail is misaddressed she first attempts to deliver it to the correct address, if known, and if delivery is unsuccessful for any reason, returns the mail to its sender, stamped “undeliverable.”

David Rosenberg, the manager of 160 Andover Street LLC and trustee of the condominium association for 150A Andover Street, [Note 3] testified that he received legal notice of the hearing in the mail. That notice was addressed to 160 Andover Street LLC at 150 Unit 3 Andover Street (not 150A, the actual address) corroborating Ms. Howell’s testimony that even facially incorrect addresses are nonetheless delivered to the correct address so long (as here) the recipient’s name appears correctly and the actual address was on her route. Testimony confirmed receipt of mailed notice by at least one other condominium owner. Richard Cella, who uses offices in Unit 2 and Unit 4A, testified that on November 25, 2009 Steven Bergholtz, another unit owner, mentioned in passing having received notice in the mail of the hearing for an indoor sports facility on the neighboring lot (which I find was the notice for the hearing at issue in this lawsuit). Mr. Bergholtz’s legal notice was mailed to him at SJB Andover Realty Trust at 150A Unit 1 Andover Street. All of the mailboxes for the units are located in the same place (the main lobby of the condominium building) and are serviced by the same letter carrier.

Based on the testimony of both Ms. Burak-Condon and Ms. Howell, the fact that none of the letters were returned as undeliverable, and the fact that at least two owners of units at 150A Andover Street did receive legal notice, I find that the legal notices of the hearing on November 30, 2009 were both mailed and delivered to each of the plaintiffs, even those whose addresses had the errors noted above.

Analysis

The plaintiffs claim, first, that they never received notice by mail of the November 30, 2009 variance hearing and second, that that lack of notice prejudiced them in that they were thus unaware of the hearing and thus could not voice their objections to the proposed use of an alleged easement across the condominium’s parking area. This first claim, in conjunction with the errors on the mailing labels generated from the tax assessor’s list, raised the factual question of whether or not the notices had been mailed. After hearing the evidence I find and conclude that the plaintiffs’ argument fails at each level; notice was adequate and any deficiency of notice that did exist did not prejudice the plaintiffs.

With respect to the mailed notice requirement of G.L. c. 40A § 11, it is only required that the notice of the hearing “be sent by mail,” with no additional requirement that the notice be received. G.L. c. 40A § 11; see Zuckerman, 394 Mass. at 669; Costello v. Bd. of Appeals of Lexington, 3 Mass. App. Ct. 441 , 444 (1975). In any event, as set forth above, I find and conclude that the plaintiffs received that notice as well.

The plaintiffs contend that the errors in the mailing addresses compiled from the tax assessor’s list made that notice defective. I reject that argument for two reasons. First, the addresses generated from the tax list are “conclusive for all purposes.” G.L. c. 40A § 11 ¶ 2. Second, as previously stated, I find that the notices were, in fact, delivered. The testimony of Ms. Howell indicates that the errors on Mr. Shulam’s address would not have prevented her from delivering the notice; Ms. Howell was familiar with Mr. Shulam and the condominium units at 150A Andover Street, knew that there was no 50A Andover Street (though if such an address existed it would have been included on her route), and would have delivered it to the correct address. Ms. Howell’s testimony also highlights the fact that the notices, if in fact undeliverable due to errors in the mailing addresses, would have been returned to the board. As Ms. Burak-Condon testified, there were no returns. Furthermore, Mr. Rosenberg testified that he received notice in the mail despite the fact that his address on the tax assessor’s list is 150 Andover Street rather than 150A Andover Street. And, of course, as disclosed by Mr. Cella’s testimony, Mr. Bergholtz received the mailed notice as well.

I recognize that five people associated with the plaintiffs all testified otherwise. I disbelieve this aspect of their testimony not because I find them untruthful people but for a far simpler reason. The legal notice indicates that there would be a hearing on November 30, 2009 at 7 pm to hear six applications. The application in question appears sixth on this list and simply states that a variance was requested by Rohm & Haas Chemicals to “allow the construction of a new indoor sports facility and to install directional signage in excess of four square feet and four feet in height . . . at 150 Andover Street.” (emphasis in original). There was no mention of how the site at 150 Andover Street was to be accessed, no mention at all of the property at 150A Andover Street, nothing to indicate the potential use of an easement over the property at 150A Andover Street and, for that matter, nothing to indicate any effect on the plaintiffs’ property at all. [Note 4] In fact, as each testified, none of the plaintiffs were even aware of the easement to 150 Andover Street through their parking area and thus would have taken no particular alarm. Even Mr. Cella took Mr. Berhgholtz’s comment about a hearing on the development of a soccer facility on the 150 Andover Street property in stride and did not even bother to stop and question Mr. Bergholtz about it or follow up with the town in any way. In light of this, it is likely that the plaintiffs received the mailing and simply paid no attention to it.

Finally, the plaintiffs are not prejudiced by any defect in notice that might have existed. The plaintiffs do not object to the sports facility itself, but only to the impact the facility’s proposed use of an alleged easement through their parking area will have on their property. The existence of an easement is the subject of another pending lawsuit in which Rohm & Haas and MRS’ rights, if any, to use the alleged easement will be fully addressed and adjudicated. [Note 5] Thus the dismissal of this case does not preclude plaintiffs from challenging the existence and scope of the easement itself.

Conclusion

For the foregoing reasons, the plaintiffs’ complaint was untimely and is accordingly DISMISSED, with prejudice. Judgment shall issue accordingly.

SO ORDERED.

By the court (Long, J.)