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.
SANDS, J.
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.
Of even date hereof, this court has issued a Decision (the "Decision"). NOW, THEREFORE, for the reasons stated in the Decision, it is hereby:
ORDERED and ADJUDGED that Plaintiffs failed to timely file a copy of the ZBA Chairman Notice [Note 2] with the Clerk; and,
ORDERED and ADJUDGED that, because the notice requirements of G. L. c. 40A, § 17 were not met, this court lacks jurisdiction over this appeal; and,
ORDERED and ADJUDGED that the ZBA's Motion for Summary Judgment is ALLOWED and Plaintiffs' Motion for Summary Judgment is DENIED; and,
ORDERED and ADJUDGED that this case is DISMISSED, with prejudice.
SO ORDERED.
FOOTNOTES
[Note 1] This case is a companion to Hickey v. Pathways Ass'n, Inc., 472 Mass. 735 (2015), in which the Supreme Judicial Court ("SJC") ruled that a number of inland neighbors had implied easement rights in the Way. Two other ongoing cases (Land Court Case Nos. 16 MISC 000123 and 16 MISC 000333) involve disputes regarding certain neighbors' rights to use the beaches on Cape Cod Bay accessed via the Way.
[Note 2] The ZBA Chairman Notice is defined in the Decision as the notice of this appeal and copy of the Complaint in this case served by Plaintiffs on April 21, 2016 (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.