MISC. 18-000344

August 28, 2018

Barnstable, ss.




By Decision filed with the town clerk on June 20, 2018, the Chatham Zoning Board of Appeals denied plaintiff Stephen Kuzma's application for a special permit to expand an existing deck and spa on his non-conforming house, sited on a non-conforming lot. Appeal from that denial is governed by G.L. c. 40A, §17, which requires that the complaint making that appeal be filed in the Land or Superior court "within twenty days after the [board's] decision has been filed in the office of the city or town clerk" (i.e., in this case, on or before July 10, 2018); [Note 1] that "notice of the action with a copy of the complaint" be given to, and received by, the city or town clerk "within such twenty days" (i.e., on or before July 10, 2018); and that a copy of the complaint be served on the defendants "within fourteen days after the filing of the complaint" with the affidavit attesting to that service filed with the court "within twenty-one days after the entry of the complaint."

The defendants moved to dismiss this case based on the plaintiff's failure to give the requisite notice to the town clerk, and the town clerk to receive it, by the July 10 deadline. On the undisputed facts, as a matter of law, the motion is ALLOWED and the plaintiff's appeal is DISMISSED in its entirety, WITH PREJUDICE.


The relevant timeline is as follows.

The board's decision denying the plaintiff's special permit application was filed with the town clerk on June 20, 2018. [Note 2] The G.L c. 40A, §17 deadlines thus began to run that day. The plaintiff's complaint was filed in Land Court on July 9, one day before the expiration of the twenty-day deadline for such filing (July 10) and thus was timely. However, the plaintiff did not send copies of the complaint to the defendants until July 19 (the plaintiff mailed them that day), [Note 3] and none were actually received until July 24. [Note 4] The plaintiff submitted two affidavits regarding his notice to the town clerk — one claiming that he mailed the clerk a copy of his complaint on July 19, [Note 5] and the second that he did not "duly file" notice with the clerk until August 14, 2018, [Note 6] but the difference is not material. Under either, the clerk did not receive notice until after July 19, and likely not until after July 24 when the mailings to the defendants were received by the town's Central Permit Coordinator. [Note 7] Thus, the clerk had no actual notice of the plaintiff's appeal, formal or informal, by the July 10 deadline, and the clerk's certification on the board's Decision so states. [Note 8]

"Receipt of notice by the town clerk is a jurisdictional prerequisite for an action under G.L. c. 40A, §17, which the courts have policed in the strongest way and given strict enforcement." Hickey v. Zoning Bd. of Appeals of Dennis, 93 Mass. App. Ct. 390 (2018) (internal citations and quotations omitted). Such notice must be given and received within the twenty-day deadline and, if it is not, the case must be dismissed. See Pierce v. Board. of Appeals of Carver, 369 Mass. 804 , 808 (1976); O'Blenes v. Zoning Bd. of Appeals of Lynn, 397 Mass. 555 , 558 (1986). "This goes on the common sense basis that a record in the clerk's office should be available to furnish 'constructive' notice to interested persons that the decision of the board of appeals has been challenged and may be overturned." Pierce, 369 Mass. at 808. It is undisputed that the town clerk did not receive actual notice, of any kind, on or before July 10, 2018 when the twenty-day deadline expired. This case must therefore be dismissed. See Hickey v. Zoning Bd. of Appeals of Dennis, 93 Mass. App. Ct. 390 (2018) (FAR petition pending) (holding that, at the least, the town clerk must have actual notice within the twenty-day statutory time period that "an appeal — i.e., a complaint — has in fact been timely filed" to avoid dismissal).

The plaintiff makes three arguments against dismissal. Conceding, as he must, that he neither gave, nor did the town clerk receive, actual timely notice of the filing of his complaint (i.e., notice by July 10), [Note 9] he argues that the board should nonetheless be estopped from so asserting because (1) he has a meritorious appeal, (2) the "timeliness" argument was not specifically raised by the board in its Answer, and (3) he was "mislead" by the board's Decision that states, "An appeal, if any, from this Decision must be filed with the Superior or a District Court of Barnstable County or the Massachusetts Land Court within twenty days" without mentioning notice to the town clerk. None of those contentions has merit.

First, whether the plaintiff's appeal has merit is irrelevant to the question of whether it complied with the statutory requirements for pursuing such an appeal. As noted above, timely receipt of notice by the town clerk is a jurisdictional prerequisite for an action under G.L. c. 40A, §17. Without such timely notice, this court has no subject matter jurisdiction to proceed.

Second, the board's failure to specifically assert "lack of timely notice to the town clerk" as an affirmative defense does not preclude it from raising that argument. The court's lack of subject matter jurisdiction can be raised at any time and, if there is no such jurisdiction, the court must dismiss the case. See Mass. R. Civ. P. 12(h)(3). In any event, the board's explicit challenge to the adequacy of service suffices to include this argument. Pleadings are to be construed "as to do substantial justice", Mass. R. Civ. P. 8(f), and this falls within that category.

Lastly, the plaintiff's "estoppel" and "due process" arguments based on the board's failure to specifically notify him that he needed to give notice to the town clerk fail as well. Mr. Kuzma is an attorney and either knows, or should know, how to read a statute and research its requirements. Moreover, the Supreme Judicial Court has expressly rejected such arguments. See O'Blenes, 397 Mass. at 558-559, where the court held:

This court has been reluctant to apply principles of estoppel to public entities where to do so would negate requirements of law intended to protect the public interest. Application of estoppel principles would be inappropriate here. The 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.

Furthermore, in order to work an estoppel is must appear that one has been induced by the conduct of another to do something different from what otherwise would have been done and which has resulted to his harm and that the other knew or had reasonable cause to know that such consequence might follow. The reliance of the party seeking the benefit of estoppel must have been reasonable. As a matter of law, it was not reasonable for counsel to rely on the statement of a clerk of the board for a determination of the last day for completing the procedural requirements for initiating an appeal from the board's decision. Counsel had an obligation to determine the date on which the board's decision was filed, and he was bound to take notice of the statutory requirements.

(internal citations and quotations omitted).


For the foregoing reasons, the plaintiff's complaint is DISMISSED in its entirety, WITH PREJUDICE.

Judgment shall so enter.



[Note 1] The provisions allowing filing in certain District and Housing Courts are inapplicable in this case, which was filed in Land Court.

[Note 2] See copy of Decision attached to the plaintiff's complaint, stamped "Chatham Town Clerk, '18 Jun 20 2:45 p.m."

[Note 3] See Affidavit of Plaintiff at 1, ¶ 2 (Aug. 24, 2018).

[Note 4] See Affidavit of Sarah Clark, Central Permit Coordinator, Town of Chatham at 2, ¶¶ 6-8 (Aug. 8, 2018).

[Note 5] See Affidavit of Plaintiff at 1, ¶ 2 (Aug. 24, 2018).

[Note 6] See Plaintiff Stephen Kuzma's Affidavit of Notice of Service Pursuant to Massachusetts General Law Chapter 40A, §17 at 1, ¶ 2 (Aug. 16, 2018).

[Note 7] This is consistent with the assistant town clerk's affidavit, in which she attests that the clerk's office's first knowledge of the plaintiff's appeal came from the Central Permit Coordinator's office the week of July 30. See Affidavit of Paula Tobin, Assistant Town Clerk at 1, ¶ 2 (Aug. 9, 2018).

[Note 8] See Certification on the Board's Decision: "Pursuant to MGL Chapter 40A, I hereby certify that twenty days has elapsed after this Decision was filed in the Office of the Chatham Town Clerk and no appeal has been filed, or if such appeal was filed that it has been dismissed or denied. Paula Tobin, Asst. Town Clerk (Aug. 3, 2018)."

[Note 9] See his Affidavits referenced above at nn. 3 & 6.