MISC 139992

April 5, 1991

Worcester, ss.



By complaint filed December 21, 1989, Auburn Commercial Associates ("the Association"), Simon Konover ("Konover"), and Konover Management Corporation ("KMC") (referred to collectively as "Plaintiffs"), pursuant to G.L. c. 40A, §17, appeal the denial of a special permit by the Planning Board of the Town of Auburn ("the Board").

On April 9, 1990, the Board and its members ("Defendants") filed a Motion for Summary Judgment which was subsequently denied on July 26, 1990. On May 17, 1990 Plaintiffs filed a Motion for Partial Summary Judgment which was subsequently allowed on July 26, 1990.

A trial was held on October 25 and 26, 1990, at which times the proceedings were transcribed by a court-appointed reporter. Nine witnesses testified and eighteen exhibits were introduced into evidence. All of the exhibits are incorporated herein for the purpose of an appeal.

On all of the evidence before the Court, I make the following findings of fact:

1. The Association is a duly organized Connecticut limited partnership with a business address at 2410 Albany Avenue, West Hartford, Connecticut. KMC is a corporation duly organized under the laws of Connecticut with a principal place of business at 2410 Albany Avenue, West Hartford, Connecticut and is the general partner of the Association. Plaintiff, Konover is a resident of Connecticut.

2. The Board is, by virtue of §9.6.1 of the Zoning By-Law of the Town of Auburn ("the By-Law"), the special permit granting authority under the provisions of G.L. c 40A.

3. The Association and Konover are owners of approximately 29.17 acres of land ("Locus") situated on the southerly side of Washington Street (Route 20) in Auburn, Massachusetts.

4. On May 8, 1989, the Association and Konover ("the Applicants") filed an application for a special permit with the Auburn Town Clerk ("the Town Clerk") for the construction, maintenance and use of a shopping mall at Locus ("the Project") (See Exhibit No. 3). On October 23, 1989, the Association and Konover submitted an Addendum to the Application (Exhibit No. 6).

5. On October 30, 1989, the Board orally denied Plaintiffs' application, subject to the issuance of findings at a later date. On December 14, 1989, the Board filed its decision ("the Decision") denying the application (Exhibit No 14).

6. G.L. c. 40A, §17 provides, "notice of (an appeal by a person aggrieved by a decision of a special permit granting authority) with a copy of the complaint shall be given to such city or town clerk so as to be received within . . . twenty-days."

7. The Town Clerk's office has three employees -- Town Clerk Doris Hill and Assistant Town Clerks Elizabeth Prouty and June Herberg. The Board's office is located directly across the hall from the Town Clerk's office. A sign above the Board's office reads "Code Enforcement" (See Exhibit No. 18).

8. On December 21, 1989, seven days after the Board filed the Decision, Sherin & Lodgen, counsel for Plaintiffs, provided Blaustein & Witten, a Constable's Office for the City of Boston, with legal documents including summonses and complaints relating to the present action to be delivered to Defendants and the Town Clerk (See Exhibit No. 17). A messenger from Sherin & Lodgen delivered the papers with a cover letter to Kelly Ann Dwyer, an administrative assistant and secretary with Blaustein & Witten. The letter instructed Ms. Dwyer to serve the members of the Board, the Board and the Town Clerk as soon as the Town Hall opened on December 22, 1989. Ms. Dwyer copied the documents and made sets for each of the people to be served (Exhibit No. 17). She testified that she put a yellow label on one set of documents designating that they were for the Town Clerk and combined those documents with a similar but unmarked set for the Board. She then placed both sets in an envelope ("the Envelope") addressed, "Summonses to the Auburn Planning Board in the "Town of Auburn." Finally, she put the Envelope in a larger manilla envelope ("the Sealed Envelope") addressed to Joan Hoogasian, secretary at Jacobson & Associates, a Constable's Office in Worcester and gave the Sealed Envelope to David Sullivan.

9. David Sullivan is a telemarketing representative for A T & T and a constable registered in Cambridge who works evenings for Blaustein & Witten. On the night December 21, 1989, Mr. Sullivan picked up the Sealed Envelope along with other envelopes containing documents to be served on the Board members individually, and without opening the Sealed Envelope he dropped it off with Ms. Hoogasian's thirty-three year old son at the Hoogasian household in Worcester.

10. On December 21, 1989, Ms. Dwyer called Ms. Hoogasian with the instructions that a package would be dropped of at her house which was to be served in Auburn on the following day. That night, Ms. Hoogasian received the Sealed Envelope from her son and brought it to work with her the next morning. Removing the Envelope, she attached to it a form ("the Form") with instructions to serve the Envelope on the Board and gave the Envelope to John Zick.

11. At around 10:00 a.m. on December 22, 1989, John Zick, III, a field investigator for the Massachusetts State Lottery and an independent constable authorized to make service in the Town of Auburn, picked up the Envelope and brought it to the Auburn Town Hall. The Form instructed Mr. Zick to serve the Envelope on the Board. At the Town Hall, Mr. Zick delivered the Envelope to Bette Mitchell, a secretary employed by the Board and a long time acquaintance. Mr. Zick did not know what was inside the Envelope.

12. Mr. Zick made a return showing in-hand service to Bette Mitchell as an agent for the Board. The return does not show service on the Town Clerk.

13. At around 11:00 a.m. on December 22, 1989, Ms. Mitchell received the Envelope from John Zick and put it on the Town Planner's desk. She also told Ms. Herberg and Ms. Prouty that she had received the summons from Konover.

14. Although Stephen Costello, the Town Planner was not at work on December 22, 1989, he returned on December 26, 1989 to find the Envelope on his desk. He later walked into the Town Clerk's office with papers in hand and told Ms. Prouty and Doris Hill that the Town "had received a complaint for judicial action." He did not show nor did Ms. Prouty or Doris Hill examine the documents he held. Ms. Prouty remarked that no notice had been given to the Town Clerk. Mr. Costello then put the papers from the Envelope in a folder for Konover in the Board's office. There is no evidence that either Ms. Mitchell or Mr. Costello ever received or saw the label designating the documents to be delivered to the Town Clerk, neither were questioned on that point. Indeed, Ms. Mitchell's best recollection was that the envelope she received was labeled "Summons to the Auburn Planning Board."

15. On occasion the Town Planner has corrected a misfiling by giving documents to the Town Clerk, however, the Planner admitted that doing so was contrary to the policy set at the Town Hall. There is no evidence as to the last time such delivery was made suffice to say it is not a general or known practice in the Town.

The purpose of the notice requirement in G.L. c. 40A, §17 is to give interested third persons at least constructive notice of an appeal. [Note 1] Pasqualino v. Board of Appeals of Wareham, 14 Mass. App. Ct. 989 (1982); Costello v. Board of Appeals of Lexington, 3 Mass. App. Ct. 441 , 443 (1975); Carr v. Board of Appeals of Saugus, 361 Mass. 361 , 362-363 (1972). While the Court has been more lenient in other situations where a lapse of the statute has occurred, the requirements of timely commencing an action and timely filing of notice with the city or town clerk have been diligently enforced. Nightengale v. Board of Appeals of Methuen, 7 Mass. App. Ct. 887 (1979); O'Blenes v. Zoning Board of Appeals of Lynn, 397 Mass. 555 , 558 (1986); Marvin v. Board of Appeals of Medfield, 5 Mass. App. Ct. 772 (1977); Pierce v. Board of Appeals of Carver, 369 Mass. 804 , 808 (1976). Further, notice is not given until received by the person to be notified. Costello at 443 quoting Regan v. Atlantic Ref. Co., 304 Mass. 353 , 354 (1939).

In the present case, neither notice of the Plaintiffs' action nor a copy of the complaint was conveyed to the Town Clerk within the twenty day statutory period and accordingly this appeal must be and is hereby dismissed. While Ms. Prouty was told that documents had been served on the Board, she was not told that there were documents to be filed with the Town Clerk, and in fact no such documents were served on the Town Clerk as was apparent to Plaintiff from the return. In such instances it is not the responsibility of the Board to serve or notify the Town Clerk.

Plaintiffs argue that this is a case where judicial discretion should prevent dismissal under the rationale used by the court in Schulte v. Director of the Division of Employment Security, 369 Mass. 74 (1975) in consonance with the Rules of Appellate Procedure, particularly Rule 3(a). In this case, where there is direct persuasive authority that the harm caused by the failure to timely file notice is not "innocuous" but a "serious misstep", Schulte at 78-79 ; See Pierce supra, I find that dismissal is warranted.

Plaintiffs submitted Requests for Findings of Fact and Rulings of Law and a Post-Trial Memorandum. Defendants submitted a Trial Memorandum. I have not attempted to rule on each of Plaintiffs Requests as I have made my own findings on the questions of fact which I deem material and on the law which I believe is applicable.

In view of the evidence, I find that whatever notice the Town Clerk may have had, if any, was insufficient to comply with the statutory requirements.

In summary, I find and rule that neither notice of an appeal nor a copy of the complaint was filed with the Town Clerk and accordingly, this action is dismissed.

Judgment accordingly.


[Note 1] The earlier cases cited in this decision were based on G.L. c. 40A, §21 which was replaced in 1975 by the modern G.L. c. 40A, §17. There are no changes material to this case.