ANN TUITE, JAMES CALLERY, and CLAIRE WRIGHT v. RORY WARREN, MICHAEL J. PEIRCE, MICHAEL DiMASCIO, JOHN SAVIGNANO, and MARK J. HYMAN, as they are members of the HOPKINTON BOARD OF APPEALS, and RPI HOPKINTON, LLC.

The narrow issue before the court in this matter is whether the plaintiffs gave sufficient notice of the commencement of this action to the Hopkinton town clerk to comply with the notice requirements of G. L. c. 40A, §17. The defendants, the Board of Appeals of the Town of Hopkinton (“Board”) and the developer of the project that is the subject of the appeal, RPI Hopkinton, LLC (“RPI”), have moved jointly to dismiss the one-count complaint, an appeal under G. L. c. 40A, §17, pursuant to Mass. R. Civ. P. 12(b)(1). For the reasons stated below, the motion to dismiss is ALLOWED.

In reviewing a Rule 12 motion to dismiss, the court determines whether, viewing the allegations in the complaint in the light most favorable to the non-moving parties, it appears beyond doubt that the non-moving parties can prove no set of facts in support of their claim entitling them to relief. Boston Water & Sewer Comm’n v. Commonwealth, 64 Mass. App. Ct. 611 , 614 (2005). In reviewing a motion to dismiss for lack of subject matter jurisdiction pursuant to Mass. R. Civ. P. 12(b)(1), the court accepts as true the factual allegations in the complaint, as well as any favorable inferences reasonably drawn from them. Ginther v. Comm’r of Ins., 427 Mass. 319 , 322 (1998). In considering subject matter jurisdiction under Rule 12(b)(1), the court may consider matters outside the four corners of the complaint, which are used to support the movant’s claim that the court lacks subject matter jurisdiction. Id. at n.6.

The complaint and other materials submitted by the parties establish the following facts, which are accepted as true for the purposes of this motion. The Board issued a decision, dated October 13, 2015, and filed with the town clerk the same day, approving an application by RPI for a special permit to change a lawfully nonconforming warehouse at 34-40 Hayden Rowe Street in Hopkinton to a seventeen-unit multifamily dwelling (the “Property). The three plaintiffs, all abutters to the Property, filed the present appeal of the Board’s decision with this court on October 30, 2015, within the statutory twenty-day appeal period required by G. L. c. 40A, §17, asserting as its sole count an appeal pursuant to G. L. c. 40A, §17. The plaintiffs filed a copy of the complaint with the town clerk on November 3, 2015, the twenty-first day after the filing of the the Board’s decision with the town clerk. On October 27, 2015, which was prior to the expiration of the twenty-day appeal period on November 2, 2015, Jerry Tuite, the husband of plaintiff Ann Tuite, went to the town clerk’s office to obtain a “certified” copy of the Board’s decision for the purpose of attaching it to the intended complaint in this action as required by G. L. c. 40A, §17. [Note 1] Mr. Tuite left the town clerk’s office without a copy of the decision after a conversation with the town clerk in which there was apparently some confusion between them about what he was seeking. He returned later that day and spoke to an assistant town clerk to again seek a copy of the decision. The assistant town clerk, within earshot of Mr. Tuite, informed the town clerk that, “He needs (a copy of the decision) to file an appeal with the Land Court.” The town clerk responded that they could give Mr. Tuite an “attested” copy for that purpose. The assistant clerk then provided Mr. Tuite with an attested copy of the Board’s decision, and he left the office. The complaint, as is noted above, was then filed with this court on October 30, 2016, and a copy of the complaint was filed with the town clerk on November 3, 2016.

Section 17 requires that an appeal of a decision of a local board of appeals granting zoning relief be made “by bringing an action within twenty days after the decision has been filed in the office of the city or town clerk.” The section further provides, “Notice 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.” “Receipt of notice by a city clerk is a prerequisite ‘for an action under G. L. c. 40A, §17, which the courts have “policed in the strongest way” and given “strict enforcement”’”. Bingham v. City Council of Fitchburg, 52 Mass. App. Ct. 566 , 568 (2001), quoting from Konover Management Corp. v. Planning Bd. of Auburn, 32 Mass. App. Ct. 319 , 322-323 (1992). “Failure to comply with this jurisdictional requirement means that the (court) lacked jurisdiction over the zoning appeal.” Town of Uxbridge v. Griff, 68 Mss. App. Ct. 174, 175, fn. 3 (2007). “Failures in meeting the twenty-day deadline are not forgiven.” Bingham v. City Council of Fitchburg, supra, 52 Mass. App. Ct. at 569.

The plaintiffs, relying primarily on Konover Management Corp. v. Planning Bd. of Auburn, supra, and Garfield v. Bd. of Appeals of Rockport, 356 Mass. 37 (1969), argue that Mr. Tuite’s conversations with the town clerk and the assistant town clerk within the twenty-day appeal period were sufficient to give the town clerk notice of the appeal, thereby satisfying the notice requirements of the statute. The plaintiffs argue that these conversations show that the town clerk had knowledge of the action, and that although no copy of the complaint had been filed with the town clerk, it is the clerk’s knowledge of the action that fulfills the statutory requirement.

The plaintiffs correctly state that in some limited circumstances the courts have not insisted on strict compliance with the statutory notice requirement. In Konover, the notice to the town clerk was mistakenly filed with the town planner, who showed the complaint to the town clerk within the statutory period, without any copy of the complaint actually being filed with the town clerk. In Garfield, notice of the action was filed with the town clerk at the town clerk’s home after the close of business on the twentieth day. In Carr v. Bd. of Appeals of Saugus, 361 Mass. 361 (1972), the notice was filed with the town clerk but a copy of the complaint was not filed. And finally, in McLaughlin v. Rockland Zoning Bd. of Appeals, 351 Mass. 678 (1967), a copy of the complaint was filed with the town clerk, but no notice of the filing of the action was filed. [Note 2] In all of these cases, the notice was procedurally deficient, but was deemed to have fulfilled the purposes of the statute, because in each of these cases, “within the mandatory twenty-day period the clerk is actually notified that an appeal – i.e., a complaint has in fact been timely filed.” Konover Management Corp. v. Planning Bd. of Auburn, supra, 32 Mass. App. Ct. at 324-325.

The crucial difference between the cases cited and the present action is that in the cited cases, despite the procedural deficiencies in the notices, the town clerk in each case was given notice that a complaint had already been filed, and that there was a pending action. In the present action, Mr. Tuite’s colloquy with the town clerk and assistant town clerk at best put them on notice that someone, perhaps Mr. Tuite, but perhaps someone else, intended to file a complaint but had not yet done so. This is not the same as putting the town clerk on notice that an action has actually been filed and was pending. As the defendants correctly point out, the statutory notice requirement would be eviscerated if the mere request to the town clerk for a copy of a board of appeal decision were deemed to be notice under the statute that an action had actually been filed. There undoubtedly are situations in which someone requests a copy of a decision from a town clerk for reasons other than to file an appeal, or in which someone who does intend to file an appeal ultimately chooses not to do so. The town clerk should not be forced to assume or be deemed to know that an action will be filed, nor should the town clerk be required to guess whether an action is to be filed. The statutory purpose of the notice, “to give interested third persons at least constructive notice of the appeal”, Bingham v. City Council of Fitchburg, supra, 52 Mass. App. Ct. at 569, cannot be fulfilled until the town clerk has notice that an action actually has been filed.

Accordingly, because the town clerk did not receive notice that a complaint actually had been filed until after the twenty-day period had expired, this court is without jurisdiction to hear the plaintiffs’ appeal pursuant to G. L. c. 40A, §17. Accordingly, the defendants’ motion to dismiss pursuant to Mass. R. Civ. P. 12(b)(1) is ALLOWED.

Judgment to enter accordingly.