BRIAN HICKEY and MARY HICKEY vs. ERNIE OLIVEIRA, PETER CHECKOWAY, LINDA SLOWE, ELISA ZAWADZKAS, GARY BARBER, GREG STONE, and JOYCE LEOGRANDE, members of the Dennis Zoning Board of Appeals.

This action involves a dispute between Plaintiffs Brian and Mary Hickey ("Plaintiffs") and Defendants members of the Dennis Zoning Board of Appeals (together, the "ZBA") regarding the ZBA's decision to approve the construction of a stairway (the "Stairway") leading to Cape Cod Bay on a 20 foot wide way (the "Way") that directly abuts Plaintiffs' property to the east. [Note 1] Plaintiffs commenced this action by filing an unverified complaint on April 20, 2016, by which they appealed, pursuant to G. L. c. 40A, §17, the ZBA's decision to uphold the determination of the Building Commissioner (the "Commissioner") of the Town of Dennis (the "Town") that the Stairway would be a landscape feature not subject to the setback requirements set forth in the Town's zoning bylaws (the "Bylaw").

On May 18, 2016, the ZBA filed a pre-Answer motion to dismiss this case, supported by a memorandum of law and affidavits of Theresa Bunce (Dennis Town Clerk) (the "Clerk") and Laura McCarthy (Assistant Town Clerk) (the "Assistant Clerk"). On May 26, 2016, the parties appeared for a case management conference, after which the court issued an order ruling that, before reaching the merits of the case, it would be necessary to determine whether Plaintiffs timely gave notice of this appeal to the Clerk pursuant to G. L. c. 40A, § 17. As such, the court directed the parties to engage in discovery (ending on June 30, 2016) only on the issue of notice. Because the court's determination of this jurisdictional issue would be based on the facts elicited through such discovery, the court directed the ZBA to revise and refile its motion to dismiss as a motion for summary judgment by August 15, 2016, which the ZBA timely did. Plaintiffs filed their opposition brief on September 30, 2016. A hearing on the motion was held on October 6, 2016, at which time the court took the motion under advisement.

Based upon the parties' pleadings and the exhibits annexed thereto, the parties' summary judgment briefs and the documents and affidavits annexed thereto, I find that the following material facts are not in dispute:

1. Plaintiffs are the record owners of the property located at 104 Shore Drive in Dennis ("Plaintiffs' Property"). Plaintiffs' Property is a rectangular parcel that abuts Shore Drive to the south, Cape Cod Bay to the north, private property to the west, and the Way to the east. The Way is a twenty-foot-wide right of way running from Shore Drive to Cape Cod Bay.

2. Pathways Association, Inc. ("Pathways") is an association of landowners in Plaintiffs' neighborhood. In connection with its intentions to reconstruct an elevated stairway and landings for beach access via the Way, on January 15, 2016, Pathways sought a zoning determination from the Commissioner regarding whether such a development (the Stairway) would require a building permit.

3. On February 18, 2016, the Commissioner issued a zoning determination (the "Zoning Determination") responding to Pathways's request, concluding that the Stairway would constitute a "landscape feature designed for pedestrian access", for the construction of which, he concluded, no building permit was required by the Bylaw. Moreover, he determined, no relief from the ZBA would be required due to noncompliance with setback requirements in the zoning district where the Way is located.

4. Plaintiffs timely appealed the Zoning Determination to the ZBA, which held a hearing on that appeal on April 11, 2016, at which the ZBA unanimously voted to deny Plaintiffs' appeal of the Zoning Determination. The ZBA filed its decision denying Plaintiffs' appeal (the "ZBA Decision") with the Clerk on April 14, 2016. [Note 2]

5. Regarding the issue of whether a building permit was required, the ZBA held that "the issuance of Building Permits are not zoning issues . . . and therefor [sic] finds that where[as] this authority falls entirely within the jurisdiction of the Building Commissioner[,] the Building Commissioner is correct in making the determination that no building permit is required." As to the issue of setbacks, the ZBA found that "setbacks do not apply to facilities located in ways; and that ways are regulated under the Subdivision Control By-law not the Zoning By-law." The ZBA further denied several requests by Plaintiffs that the ZBA limit the size of the Stairway and the uses that could be made of it.

6. Pursuant to G.L. c. 40A, § 17:

Any person aggrieved by a decision of the board of appeals or any special permit granting authority . . . may appeal [said decision] . . . by bringing an action within twenty days after the decision has been filed in the office of the city or town clerk. . . . 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. The complaint shall allege that the decision exceeds the authority of the board or authority, and any facts pertinent to the issue, and shall contain a prayer that the decision be annulled. There shall be attached to the complaint a copy of the decision appealed from, bearing the date of filing thereof, certified by the city or town clerk with whom the decision was filed.

Based upon this provision, any appeal from the ZBA Decision was required to have been filed with the Clerk not later than May 4, 2016.

7. As noted above, Plaintiffs filed their Complaint, appealing the ZBA Decision, with this court on April 20, 2016 -- well within the twenty-day appeal period of G.L. c. 40A, § 17. On April 29, 2016, Plaintiffs filed an affidavit of notice, demonstrating service of notice of this appeal and a copy of the Complaint upon each of the members of the ZBA at their homes (by Federal Express and Certified Mail, return receipt requested) on April 21, 2016 (the "ZBA Notices"). Plaintiffs' affidavit of notice further demonstrated that, also on April 21, 2016, Plaintiffs additionally served notice of this appeal and a copy of the Complaint (via Certified Mail, return receipt requested) in a package addressed to the "Chairman, Zoning Board of Appeals" care of the Town of Dennis at the street address of 685 Route 134, P.O. Box 2060, South Dennis, MA 02660 (the "ZBA Chairman Notice"). The return receipt for the ZBA Chairman Notice indicates that it was signed for by "L. Barr" on April 25, 2015. [Note 3] [Note 4]

8. Daniel Fortier, Dennis Town Planner (the "Town Planner") testified in his deposition that he was responsible for writing ZBA decisions, and that he penned the ZBA Decision at issue here. He testified that his office's procedure with respect to ZBA decisions was that, after he had written a ZBA decision, his assistant, Eileen Gregory ("Gregory"), would bring it to the Clerk's office to be date-stamped and initialed by the Clerk or Assistant Clerk as having been filed. [Note 5] At that time, Gregory would leave a copy with the Clerk's office (which the Clerk's office kept in its "appeals file" pending the appeals period) and would retain the original ZBA decision (which the Town Planner's office kept in its "red file" pending the appeals period). Later, he stated, upon the expiration of the time to appeal the ZBA decision, Gregory would bring back the Town Planner's "red file" for the Clerk's office to certify whether an appeal had been filed. [Note 6] The Town Planner claimed that this procedure was followed in this case.

9. With respect to appeals of ZBA decisions, the Town Planner expressed a familiarity with the technical requirements of G.L. c. 40A, which he cited on the numerous instances during the course of his deposition in which he insisted that the notice requirements of G.L. c. 40A strictly required that such notice be filed in the office of the Clerk, and that doing so "should be the [appellant]'s responsibility" due to "legal ramifications and clocks". [Note 7]

10. As to this ZBA appeal, the Town Planner acknowledged that his office received the ZBA Chairman Notice at some point within two weeks after the ZBA Decision had issued (the return receipt indicates it was signed for on April 25, 2015), but he stated that he did not date-stamp the ZBA Chairman Notice as having been received, forward same to the Clerk's office, or even notify the Clerk's office of his receipt of same -- nor did he instruct Gregory to do so. [Note 8] As to why he did not take any of these actions, the Town Planner insisted repeatedly that it was "not my responsibility" and "not my job" to do so, even denying that it was "[his] job to notify the Town Clerk if important matters are happening in the Town related to owners of property in the Town."

11. Based on this explanation, the Town Planner testified that, when he received the ZBA Chairman Notice, he provided copies of same only to Gregory and to the Town's legal administrator, Wendy Gothan ("Gothan") for forwarding to Town counsel. [Note 9] He further testified that he had several conversations with the Clerk and Assistant Clerk but that he did not "recall [ ] specifically" discussing the ZBA Chairman Notice with them. He did testify, however, to having a conversation with the Assistant Clerk (after the appeals period had run) in which the Assistant Clerk told him that they had, in fact, discussed the ZBA Chairman Notice within the appeals period.

12. In her affidavit, Gregory (the Town Planner's assistant) confirmed the Town Planner's description of her job duties as including bringing decisions of the ZBA to the Clerk's office for filing, holding onto the originals of such decisions pending the appeals period, and then bringing such decisions back to the Clerk's office for certification that no appeal had been filed -- and that she performed such duties in this case. She also confirmed that the Town Planner had provided her with a copy of the ZBA Chairman Notice within the appeals period, but she claimed that she never spoke to anyone from the Clerk's office regarding the appeal, nor gave a copy of same to the Clerk or Assistant Clerk. She stated that she did not mention to the Clerk having received the ZBA Chairman Notice when she brought the ZBA Decision back to the Clerk's office for certification that no appeal had been filed. [Note 10]

13. In her affidavit, the Assistant Clerk testified that "[s]everal times" within the appeals period, the Town Planner (whose office, as noted above, was in possession of the ZBA Chairman Notice) asked her if the Clerk's office had received a copy of same. In her deposition, she acknowledged having "heard that [the Complaint] had been filed in the Land Court . . . [s]ome time during the 20-day appeal period [emphasis added]." In her affidavit, she elaborated, stating that "once, when I spoke with [the Town Planner] . . . he told me that he understood that an appeal had been taken related to the [ZBADecision] [emphasis added]." [Note 11] Despite these conversations, however, she testified that she never saw or received a copy of the ZBA Chairman Notice within the appeals period and did not recall ever discussing with the Clerk whether an appeal had been filed. [Note 12]

14. In her deposition, the Clerk testified that, on May 5, 2015 (the twenty-first day after the ZBA Decision had been filed in her office), she and the Assistant Clerk together reviewed the Clerk's office's "appeals" file and the Town Planner's "red file" for the ZBA Decision for this zoning dispute to certify that no appeal had been filed. At that time, she stated, the Assistant Clerk did not mention to her that the Town Planner had advised her "that he understood that an appeal had been taken related to the [ZBA Decision]." [Note 13] Finding no copy of the ZBA Chairman Notice in her file -- and without inquiring of any members of the ZBA, [Note 14] the Assistant Clerk, the Town Planner, Gregory, her assistant, or any other person whether any of them knew whether an appeal had been filed [Note 15] -- the Clerk thus certified that no appeal had been filed.

15. In her affidavit, Kathleen Travelo (former office assistant in the Clerk's office at the time of the facts at issue here) ("Travelo") testified that the Town Planner mentioned "several times . . . that he was expecting something to be filed", but that he "never specified what case he was referring to, what property was involved or who was involved." [Note 16] She stated that she never conveyed this information to the Clerk, and that she only received confirmation of the nature of the appeal on May 5, 2016.

16. In her affidavit, Gothan (Town legal administrator) confirmed that the Town Planner's office provided her with a copy of the ZBA Chairman Notice on April 26, 2016, which she forwarded to Town Counsel. She stated that she never spoke to anyone from the Clerk's office regarding the appeal, nor gave a copy of the ZBA Chairman Notice to the Clerk or Assistant Clerk.

17. On May 5, 2016 (after the appeals period had run), upon receiving notice of the Clerk's certification that no appeal of the ZBA Decision had been filed, Plaintiffs' counsel e-mailed copies of the ZBA Chairman Notice to the Clerk, Assistant Clerk, Town Planner, Gregory, and Travelo, together with, among other documents, his affidavit of notice that had already been filed with this court. In responding to this communication, the Town Planner did not acknowledge his receipt of the ZBA Chairman Notice within the appeals period, but instead simply referred Plaintiffs' counsel to Town counsel.

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Summary judgment is appropriate where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. E.g. Cassesso v. Comm'r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56 (c).

The sole issue on this motion is whether Plaintiffs complied with the notice requirements of G.L. c. 40A, § 17, which requires 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" "after the decision has been filed in the office of the city or town clerk." This rule is jurisdictional, and failure to comply deprives the courts of jurisdiction to hear the appeal. O'Blenes v. Zoning Bd. of Appeals of Lynn, 397 Mass. 555 , 558 (1986) (citing Bjornlund v. Zoning Bd. of Appeals of Marshfield, 353 Mass. 757 (1967)). "The purpose of the notice provision is to give interested third persons at least constructive notice of the appeal." Costello v. Bd. of Appeals of Lexington, 3 Mass. App. Ct. 441 , 443 (1975). And, "[t]he public interest in assuring that there is a timely record in the city clerk's office giving notice to interested persons that the decision of the board of appeals has been challenged and may be overturned requires strict enforcement of the statutory notice requirements." O'Blenes, 397 Mass. at 558 (quotation omitted).

Notwithstanding the foregoing, case law has established a number of exceptions to this rule, so long as the public interest in providing interested third parties with timely notice of any appeal is served. Thus, "[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." Costello, 3 Mass. App. Ct. at 443. For instance, in McLaughlin v. Rockland Zoning Bd. of Appeals, 351 Mass. 678 , 680 (1967) the SJC found the notice requirement satisfied where the appellant timely filed only a copy of a complaint without a written notice of the appeal, since "filing the copy of the bill with the town clerk was in effect an assertion that the bill had been filed." Id.; see also Carr v. Bd. of Appeals of Saugus, 361 Mass. 361 , 362-63 (1972) (reaching the same conclusion where the appellant timely filed written notice of an appeal not accompanied by a copy of the complaint).

Other cases have further relaxed the notice requirements under various circumstances. In Garfield v. Board of Appeals of Rockport, 356 Mass. 37 , 39 (1969), the SJC found G. L. c. 40A, § 17 satisfied where the appellant delivered notice of the appeal and a copy of the complaint to the town clerk's home after close of business on the twentieth day of the appeals period, finding no requirement in the statute that the notice be made in the town clerk's office, nor during business hours. The Appeals Court reached the same conclusion in Konover Mgmt. Corp. v. Planning Bd. of Auburn, 32 Mass. App. Ct. 319 , 324-26 (1992), where the appellant inadvertently sent the notice of appeal and copy of the complaint to the town planner (rather than to the town clerk), who did not forward that complaint to the proper office. However, in Konover, unlike here, the town planner actually showed the complaint to the town clerk and assistant town clerk. Id. at 322. [Note 17] In reaching this conclusion, the court held that "it is the state of the clerk's knowledge, not the physical location of [the complaint and notice] that controls." Id. at 325. Thus, because the clerk actually saw the complaint, she was "actually and seasonably alerted to the [ ] complaint for judicial review-and no one representing the interests of the town [ ] can justifiably claim prejudice." Id. at 327.

On the other hand, Bingham v. City Council of Fitchburg, 52 Mass. App. Ct. 566 , 571 (2001) demonstrates that there are limits to the courts' leniency in enforcing the notice requirements of G.L. c. 40A, § 17. In Bingham, the appellant failed to file the complaint and notice of the appeal with the town clerk's office before that office closed on the last day of the appeals period. Id. at 567-68. Instead, the appellant filed same with the mayor's office (which had later hours of operation) on said date, and the town clerk did not see the documents until the next day. Id. There, the court found that the notice requirement of the statute was not met, since in no way was "the clerk [ ] made aware that a complaint had been filed prior to the expiration of the time in which to appeal." Id. at 571; see also Cty. of Norfolk v. Zoning Bd. of Appeals of Walpole, 16 Mass. App. Ct. 930 (1983) (rescript) (advising town clerk by telephone of an intent to appealis insufficient); Robertson v. Tyler Court Ltd. P'ship, 22 LCR 60 , 61 (2014) (Sands, J.) (emailing the complaint and notice of appeal to the town clerk after close of business on the last day of the appeal period does not satisfy G.L. c. 40A, § 17, since the appellant could not demonstrate that the clerk had opened the email and was timely made aware that an appeal had been filed).

Here, it is undisputed that the ZBA Chairman Notice was not addressed to the Clerk's office, and that it was neither received nor seen by the Clerk or Assistant Clerk within the twenty-day appeal period. That did not occur until the twenty-first day after the ZBA Decision was filed with the Clerk when Plaintiffs' counsel e-mailed a copy of the ZBA Chairman Notice after having received notice that the Clerk had certified that no appeal had been filed. In the view of this court, such circumstances fall in the latter camp of cases, in which notice was not found to be sufficient. In reaching this view, it is important to focus on Konover and the cases cited therein. See Schulte v. Director of the Div. of Employment Sec., 369 Mass. 74 (1975); Costello v. Bd. of Appeals of Lexington, 3 Mass. App. Ct. 441 (1975).

Costello defines the purpose of the notice requirements of G.L. c. 40A, § 17 as "to give interested third persons at least constructive notice of the appeal. Strict 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." Costello, 3 Mass. App. Ct. at 443 (emphasis added). In Konover, both the Town Clerk and the Assistant Town Clerk had seen the Complaint, which the Town Planner had in his hand. As such, they were "aware that [the appellant] had commenced an action seeking review of the board's [ ] decision denying the special permit . . . . They both were also aware that the papers reflecting that action lay in a file a few feet from their office." Konover, 32 Mass. App. Ct. at 322. The Appeals Court deemed this adequate notice.

The facts presented in Konover are different from the facts at the case at bar. Here, the Assistant Clerk never saw the Complaint. In her affidavit, she stated that she had "heard that [the Complaint] had been filed in the Land Court [emphasis added]" and that "[the Town Planner] told me that he understood that an appeal had been taken related to the [ZBA Decision] [emphasis added]." And, while her testimony was somewhat inconsistent, [Note 18] it does not appear, on balance, that the information she received was sufficiently concrete to be able to say that the Assistant Clerk had actual "knowledge" of the Complaint, such that she would have been in the position to be able to give "notice to interested persons that the decision of the board of appeals has been challenged and may be overturned . . . ." O'Blenes, 397 Mass. at 558 (quotation omitted). Moreover, the Town Planner testified that he did not specifically recall any such conversations.

The critical evidence, however, is that neither the Clerk nor Assistant Clerk had seen the Complaint, and thus, at best, could only rely on hearsay evidence. Konover states that "[t]he key element of these decisions relaxing the rigors of strict compliance with the zoning appeal statute is that 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, 32 Mass. App. Ct. at 324-325. Konover goes on to say that "the complaint itself was, to the actual knowledge of the clerk and the assistant clerk [because they had physically seen it], easily and immediately accessible for the perusal of any interested person who might inquire at the clerk's office." Id. at 325-326.

Konover also focuses on the role of the plaintiff. In a footnote, the court states as follows:

Our decision should not be taken to imply that we condone Konover's procedural misstep, which might have been fatal in different circumstances. Strict compliance with § 17 is not an undue burden; nor would be an inquiry directly to the town clerk's office prior to the expiration of the twentieth day as to the fact of the clerk's receipt of the papers. Double-checking the accomplishment ofsuchjurisdictional and potentially outcome-determinative matters appears to be well within the duty of competence which a lawyer, as a fiduciary, owes to the client-a duty that cannot be delegated without proper supervision and control.

Id. at 327, n. 13. Schulte also stresses the role of the plaintiff, focusing on which steps in an appeal are jurisdictional and which are not:

Sloppiness in following a prescribed procedure for appeal is not encouraged or condoned, but at the same time a distinction is taken between serious missteps and relatively innocuous ones. Some errors or omissions are seen on their face to be so repugnant to the procedural scheme, so destructive of its purposes, as to call for dismissal of the appeal. A prime example is attempted institution of an appeal seeking judicial review of an administrative decision after expiration of the period limited by a statute or rule. . . . With respect to other slips in the procedure for judicial review, the judge is to consider how far they have interfered with the accomplishment of the purposes implicit in the statutory scheme and to what extent the other side can justifiably claim prejudice. After such an assessment, the judge is to decide whether the appeal should go forward without more, or on terms, or fail altogether.

Schulte, 369 Mass. at 79-80 (citations omitted).

Here, as discussed, the appeal was not timely filed. Moreover, by contrast with this case, in Konover, the appellant actually prepared a notice for service on the Town Clerk, and the reason why it never reached the Town Clerk was because the process server failed to open the sealed envelope he had been instructed to serve to find that there were two separate sets of papers to be served (one of which was to be served on the local Planning Board and the other on the Town Clerk) and thus mistakenly served both on the Planning Board. In the case at bar, the error cannot be attributed to such an outside force; rather, the ZBA Chairman Notice was simply mis-addressed to the Chairman of the ZBA, rather than to the Clerk.

Plaintiffs argue that the Clerk and/or Town Clerk may not "wilfully shut [their] eyes to the means of acquiring knowledge which [they know] are at hand and thus escape the consequences which would flow from the notice had it been actually received." Konover, 32 Mass. App. Ct. at 326. This argument is unavailing, however, as there is no concrete evidence that the Clerk and/or Assistant Clerk ever actually did so. [Note 19] Thus, unfortunately for Plaintiffs, the necessary documents were simply filed one day late. To relax the rule under circumstances not advancing the purpose of the notice requirements of G. L. c. 40A, § 17 is beyond the authority of this court to do based upon the relevant case law. Bingham, 52 Mass. App. Ct. at 571. [Note 20]

Based upon the foregoing, I FIND that Plaintiffs failed to timely file a copy of the ZBA Chairman Notice with the Clerk. Thus, I FIND that because the notice requirements of G. L. c. 40A, § 17 were not met, this court lacks jurisdiction over this appeal. The ZBA's Motion for Summary Judgment is thus hereby ALLOWED and Plaintiffs' Motion for Summary Judgment is DENIED. As such, this case is DISMISSED, with prejudice.

Judgment to enter accordingly.