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17-P-382 Appeals Court

BRIAN S. HICKEY & another1 vs. ZONING BOARD OF APPEALS OF 

DENNIS

No. 17-P-382.

Suffolk. February 5, 2018. - June 15, 2018.

Present: Green, C.J., Henry, & Singh, JJ.

Zoning, Notice, Appeal, Board of appeals: decision. Practice, 

Civil, Zoning appeal, Summary judgment. Notice.

Civil action commenced in the Land Court Department on 

April 20, 2016.

The case was heard by Alexander H. Sands, III, J., on 

motions for summary judgment.

John E. Bowen for the plaintiffs.

Jackie Cowin for the defendant.

GREEN, C.J. Section 17 of the Zoning Act, G. L. c. 40A, 

sets out the procedural requirements for a person aggrieved by a 

decision of a zoning board of appeals or special permit granting 

authority to seek judicial review "by bringing an action within 

 

1 Mary P. Hickey.
2

twenty days after the decision has been filed in the office of 

the town clerk," and further specifies 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." A 

judge of the Land Court allowed the defendant's motion for 

summary judgment, dismissing the plaintiffs' complaint, on the 

ground that the plaintiffs did not timely give the required 

notice to the town clerk. Because the undisputed facts in the 

summary judgment record establish that the town's assistant 

clerk had actual knowledge of the plaintiffs' complaint within 

the required time, we reverse the judgment. See Konover Mgmt. 

Corp. v. Planning Bd. of Auburn, 32 Mass. App. Ct. 319, 324-325 

(1992) (Konover).

Background. The following facts are established by the 

summary judgment record. Plaintiffs Brian S. Hickey and Mary P. 

Hickey own land abutting the location of a proposed stairway 

leading to Cape Cod Bay. The Dennis building commissioner 

determined that the stairway would be a landscape feature not 

subject to the setback requirements set forth in the local 

zoning bylaws, and not requiring a building permit. 

The Hickeys unsuccessfully appealed that decision to the 

defendant zoning board of appeals of Dennis (board). After 

voting unanimously to uphold the building commissioner's 
3

determination, the board filed its decision with the town 

clerk's office on April 14, 2016. 

On April 20, 2016, the Hickeys timely filed their complaint 

appealing the board's decision in the Land Court under G. L. c. 

40A, § 17. On April 21, 2016, the Hickeys' counsel sent copies 

of the complaint by certified mail to each of the individual 

members of the board, addressed to their respective homes.2 On 

the same day, the Hickeys' counsel sent a package by certified 

mail addressed to "Chairman, Zoning Board of Appeals" at the 

Dennis town hall, which included copies of the same documents 

sent to the board members individually. 

The chairman's packet was received at the Dennis town hall 

on April 25, 2016, where it was routed to the office of the town 

planner by some time on April 26, 2016. After his receipt of 

the chairman's packet, the town planner had a series of 

conversations with the assistant town clerk. At some point 

prior to May 4, 2016 (the end of the twenty day appeal period), 

the town planner told the assistant town clerk that the 

plaintiffs had filed their complaint in the present case in the 

 

2 In addition to the complaint, the packages included a 

cover letter, a copy of a summons, a civil action cover sheet, 

and the Land Court's Limited Assistance Representation 

Information Sheet.
4

Land Court.3 It is, in other words, undisputed that the 

assistant town clerk had actual knowledge that the plaintiffs 

had appealed the board's decision before the appeal period 

expired.4

It is undisputed that the Hickeys' counsel did not mail a 

copy of the complaint to the Dennis town clerk. Moreover, 

neither the clerk nor the assistant clerk saw a copy of the 

Hickeys' complaint before May 5, 2016. The Hickeys' counsel's 

only direct communication with the town clerk's office for the 

purpose of providing notice of the appeal occurred by e-mail 

dated May 5, 2016 -- which he sent after the town clerk 

certified that she had not received any notice of an appeal 

within the required timeframe.5

 

3 The parties agree that service of notice on the assistant 

clerk is the equivalent of service on the clerk. See Konover, 

supra at 324 n.9.

4 In allowing the defendant's motion for summary judgment, 

the motion judge reasoned that because the assistant clerk's 

knowledge of the plaintiffs' complaint relied on a hearsay 

statement by the town planner rather than the assistant clerk's 

direct personal observation of the complaint, it did not 

constitute "knowledge" of the complaint within the meaning of 

Konover. We are aware of no authority requiring, and we see no 

reason for, the imposition of such adjudicative evidentiary 

standards on the assessment of the clerk's actual knowledge that 

an appeal has been taken.

5 The town clerk's May 5, 2016, certification was attached 

to the board's original decision and stated that "this decision 

was filed on April 14, 2016, and no appeal was filed within 20 

days after date of filing." Later that day, apparently 

recognizing that the earlier certification did not accurately 
5

The board moved to dismiss the Hickeys' complaint, based on 

the failure to file notice of the appeal or a copy of the 

complaint with the town clerk before May 4, 2016. After the 

Land Court judge permitted limited discovery on the issue, the 

board converted its motion to one for summary judgment. The 

judge then allowed the motion, and entered judgment dismissing 

the complaint. This appeal followed.

Discussion. "[R]eceipt 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.'" See Konover, 32 Mass. App. Ct. at 

322-323, quoting from Pierce v. Board of Appeals of Carver, 369 

Mass. 804, 808 (1976) and O'Blenes v. Zoning Bd. of Appeals of 

Lynn, 397 Mass. 555, 558 (1986). The purpose of notice to the 

town clerk is to provide "notice to interested persons that the 

decision of the board of appeals has been challenged and may be 

overturned." Pierce, supra at 808. 

However, "[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 

 

describe matters as known to the clerk's office, the town clerk 

affixed a revised certification to the board's decision, stating 

"this decision was filed with the Town Clerk's office on April 

14, 2016, and no Notice of Appeal from the decision was filed 

with the Town Clerk's Office within 20 days of April 14, 2016."
6

limited." Costello v. Board of Appeals of Lexington, 3 Mass. 

App. Ct. 441, 443 (1975). By way of example, in McLaughlin v. 

Rockland Zoning Bd. of Appeals, 351 Mass. 678, 680 (1967), the 

court concluded that the purpose of the statute was met when the 

plaintiffs timely filed a copy of their complaint with the town 

clerk, even though they did not file a separate notice stating 

that it had been filed in court. Similarly, the court found 

notice adequate in Carr v. Board of Appeals of Saugus, 361 Mass. 

361, 362-363 (1972), where the plaintiff timely filed a notice 

of the appeal with the town clerk but did not include a copy of 

the complaint. In Garfield v. Board of Appeals of Rockport, 356 

Mass. 37, 39 (1969), the plaintiffs delivered notice that they 

had filed an appeal and a copy of the complaint to the town 

clerk at her home at 6:35 P.M. on the last day of the appeal 

period, after the town offices had closed. The court held that 

delivery to the clerk at her home satisfied the notice 

requirement. Ibid. 

Finally, in the circumstances closest to those in the 

present case, notice was deemed adequate in Konover, supra. In 

that case, counsel for the plaintiff had prepared two sets of 

papers for service at town hall -- one for service on the board 

and the other for delivery to the town clerk. Id. at 320-321. 

Both were placed together in a sealed envelope marked "Summonses 

to the Auburn Planning Board in the Town of Auburn." Id. at 
7

320. The process server, unaware that the envelope contained 

two sets of papers, left the sealed envelope with the secretary 

to the town planner. Ibid. Days later, but within the appeals 

period, the town planner opened the envelope and walked across 

the hall to the town clerk's office where he told the clerk and 

an assistant town clerk that he had received the plaintiff's 

complaint. Id. at 321. He showed the assistant town clerk the 

front page of the complaint -- "to see if she received what I 

had received" -- which she had not. Ibid. After that, the town 

planner placed all of the documents he had received into a file 

in the board's office, and no formal notice of the appeal was 

ever filed with the town clerk. Id. at 322. In concluding that 

the requirements of § 17 had been met, the court observed that 

the "key element" in cases "relaxing the rigors of strict 

compliance with the zoning appeal statute" is that within the 

twenty-day statutory appeal period "the clerk is actually 

notified that an appeal -- i.e., a complaint -- has in fact been 

timely filed," id. at 324-325, and that "it is the state of the 

clerk's knowledge, not the physical location of the papers, that 

controls."6 Id. at 324-325.

 

6 The paramount significance of the state of the clerk's 

knowledge was reiterated in Bingham v. City Council of 

Fitchburg, 52 Mass. App. Ct. 566, 571 (2001), even as it 

declined to accept as adequate a notice of appeal delivered to 

the mayor fifteen minutes after the clerk's office closed on the 
8

As we have observed, in the present case it is established 

that the clerk knew sometime before May 4, 2016, that the 

plaintiffs had filed a complaint in the Land Court appealing the 

April 24, 2016, decision of the board. Since it is the state of 

the clerk's knowledge that controls, the requirements of G. L. 

c. 40A, § 17, were satisfied, and the order allowing the 

defendant's summary judgment motion was error.7

Judgment reversed

 

twentieth day, since the clerk did not learn of the appeal until 

the following day.

7 In the present case, the plaintiff served the individual 

members of the board, and mailed a copy of the complaint to the 

chairman of the board at the town hall. The case accordingly 

does not require us to consider whether notice would be adequate 

if it came to the attention of the town clerk by means other 

than through communications with other officials charged with 

administration of the local zoning by-law.
SINGH, J. (dissenting). It is undisputed that the 

plaintiffs failed to give timely "[n]otice of the action with a 

copy of the complaint" to the town clerk as required by G. L. 

c. 40A, § 17. Nonetheless, they were able to depose the town 

clerk, the assistant town clerk and the town planner in an 

effort to establish that the town clerk had actual knowledge of 

the filing of their complaint. I believe this inquiry into the 

"actual knowledge" of the clerk removes the burden from where it 

properly should be placed, squarely on the shoulders of the 

plaintiffs. Where a party has failed in its statutory notice 

obligation, local officials should not be drawn into litigation. 

I acknowledge that dismissal of an appeal is a severe 

sanction for failure to give timely notice to the town clerk, 

particularly where it appears that the plaintiffs timely filed a 

complaint in court to challenge the decision of the local zoning 

board of appeals. Given that the requirement of G. L. c. 40A, 

§ 17, is a jurisdictional requisite to judicial review, however, 

see Garfield v. Board of Appeals of Rockport, 356 Mass. 37, 39 

(1969), this requirement must be enforced even where it leads to 

harsh results.1 See Bjornlund v. Zoning Bd. of Appeals of 

 

1 The requirement of notice to the town clerk appears in the 

first paragraph of G. L. c. 40A, § 17. The second paragraph 

describes those persons who must be named as defendants in a 

zoning appeal -- and the list does not include the town clerk. 

See G. L. c. 40A, § 17. The statute goes on to provide a method 

of supplying notice to the defendants "instead of the usual 
2

Marshfield, 353 Mass. 757, 757 (1967); O'Blenes v. Zoning Bd. of 

Appeals of Lynn, 397 Mass. 555, 558-559 (2001); Costello v. 

Board of Appeals of Lexington, 3 Mass. App. Ct. 441, 442 (1975); 

Bingham v. City Council of Fitchburg, 52 Mass. App. Ct. 566, 

566-567 (2001). 

The Hickeys argue that their failure to serve the town 

clerk with notice of their appeal should be excused because the 

assistant town clerk was told by the town planner that he had 

received the Hickeys' complaint. In doing so, they rely 

primarily on Konover Mgmt Corp. v. Planning Board of Auburn, 32 

Mass. App. Ct. 319 (1992) (Konover). 

 

service of process" in order "to avoid delay in the 

proceedings." G. L. c. 40A, § 17. Such notice must be sent to 

the defendants within "fourteen days after the filing of the 

complaint." G. L. c. 40A, § 17. Here, it is undisputed that 

the Hickeys supplied notice to the board members both in the 

manner directed by the statute and also by sending a packet 

including a summons and copy of the complaint (addressed to the 

board's "Chairman") to the town offices with a cover letter 

invoking Mass.R.Civ.P. 4, as amended, 402 Mass. 1401 (1988). 

Because the town clerk is not a defendant to a zoning appeal, it 

is apparent that the two separate notice requirements found in 

§ 17 serve entirely different purposes. Thus, it is clear in 

the statutory scheme that providing notice of the action to the 

named defendants is not the same as providing notice to the 

clerk. Moreover, lapses in compliance with the former 

requirement have been forgiven to an extent that lapses in 

compliance with the latter have not. See Pierce v. Board of 

Appeals of Carver, 369 Mass. 804, 809 (1976) ("there is a 

different approach to the carrying out of the later steps of an 

action which has been timely commenced and timely recorded in 

the town clerk's office").
3

Under the circumstances recited in Konover, this court held 

that the plaintiff had adequately complied with G. L. c. 40A, 

§ 17. In so doing, we found that the "key element" in cases 

"relaxing the rigors of strict compliance with the zoning appeal 

statute" is that within the appeals period "the clerk is 

actually notified that an appeal -- i.e., a complaint, has in 

fact been timely filed." Id. at 324-325. Referring to 

Garfield, supra, the Konover court wrote, "[t]he decision makes 

it clear that it is the state of the clerk's knowledge, not the 

physical location of the papers, that controls." Konover, supra

at 325. In Garfield, however, the court did not discuss the 

state of the clerk's personal knowledge as a basis for its 

decision. Instead, the court relied on the statutory language -

- emphasizing that, in contrast to G. L. c. 40A's provisions for 

filing the board's decision "in the office of the city or town 

clerk," the language relevant to judicial appeals required only 

that notice be given "to . . . (the) city or town clerk," and 

did not require filing in the clerk's "office." Garfield, supra

at 39. 

There is, however, another "key element" that is apparent 

from Konover and the cases cited therein -- which is that, 

before the notice requirement had been "relaxed," there had been 

an attempt by the plaintiff to provide the clerk with written 

notice of the appeal by some reasonably effective (albeit 
4

imperfect) means. See Konover, supra at 321 (counsel sent out 

notice packet for service on town clerk). See also, McLaughlin

v. Rockland Zoning Board of Appeals, 351 Mass. 678, 679 (1967) 

(complaint was delivered to town clerk without a notice of 

filing); Garfield, 356 Mass. at 39 (notice and copy of complaint 

were delivered to clerk at home, after close of business); Carr

v. Board of Appeals of Saugus, 361 Mass. 361, 361 (1972) (notice 

of filing was delivered to town clerk without complaint).

Moreover, in all of these cases, the clerk's "actual 

knowledge" of the appeal has been linked in some way to the 

attempt by the plaintiff to serve her with notice.2 See Konover, 

supra at 321 (town planner received notice intended for clerk 

and informed clerk that appeal had been filed). See also, 

McLaughlin, supra at 679; Carr, supra at 361; Garfield, supra at 

39.

 

2 The motion judge addressed this issue by interpreting 

Konover in such a way as to limit "personal knowledge" to 

instances where the clerk or assistant clerk has actually seen 

the complaint, so as to avoid reliance on hearsay. Although the 

majority sees no reason to apply "adjudicative evidentiary 

standards" on assessment of the clerk's "actual knowledge," it 

provides no guidance as to how such an assessment is to be made. 

There is good reason for the clerk not to rely on 

representations from other individuals. First, those other 

individuals may be mistaken. Second, not all individuals are 

entitled to the same degree of trust. The clerk is ultimately 

responsible for certifying the status of an appeal. The public 

is entitled to a certification based on the clerk's first-hand 

knowledge, not the passing on of mere hearsay.
5

In other words, in my view, Konover does not stand for the 

proposition that a clerk's actual knowledge of a pending appeal 

is necessarily dispositive of the jurisdictional question, 

regardless of the source from which that knowledge might flow.3 

Such an exception, in all cases where the clerk has learned of 

an appeal by some happenstance independent of the plaintiff's 

efforts at perfecting the appeal, could negate entirely the 

statutory requirement that timely notice be provided to the 

clerk. Moreover, such an exception would have the effect of 

requiring town clerks (as well as other town officials) to 

submit to litigation discovery in every instance where the 

plaintiff has failed to give the formal notice required by the 

statute.4 While Konover and Garfield "expanded the manner in 

 

3 The majority takes the position that, given the Hickeys' 

notice to the board, we need not consider whether notice would 

be adequate if it came to the attention of the town clerk by 

some means other than communication among town officials. In 

every case of this nature, however, town officials will be named 

defendants and will therefore receive notice through service. 

See G. L. c. 40A, § 17 (second paragraph). I would expect that, 

in most cases, this information would further be transmitted to 

the town clerk through casual conversation among officials 

within town hall. Thus, this view has the potential to nullify 

the legislative requirement that separate notice be sent to the 

town clerk. See G. L. c. 40A, § 17 (first paragraph). 

4 Not only is such involvement in litigation burdensome, it 

causes town officials to be placed in the untenable position of 

assisting a party with perfecting his or her appeal. In the 

context of a zoning appeal, what is helpful to one party may be 

harmful to another. And where two neighbors are at loggerheads 

over a proposed project, both are the constituents of town 

officials. Here, the town planner and/or the assistant town 
6

which the deadline could be met," see Bingham, supra at 571, I 

do not believe this expansion is broad enough to encompass this 

situation where there has been no attempt by the plaintiff to 

provide the written notice to the clerk required by the statute. 

Written notice is contemplated by the statute's reference 

to "notice of the action with a copy of the complaint." G. L. 

c. 40A, § 17. See County of Norfolk v. Zoning Board of Appeals 

of Walpole, 16 Mass. App. Ct. 930, 930 (1983) (telephone notice 

that an appeal will be taken is nugatory because it puts nothing 

in the record by which interested third parties would be 

forewarned that the zoning status of the land is still in 

question). By relying on an oral representation to satisfy the 

notice requirement to the town clerk, the majority further 

extends the exceptions to the rule. See McLaughlin, supra (copy 

of complaint filed with clerk); Garfield, supra (notice of 

appeal and copy of complaint delivered to clerk); Carr, supra

 

clerk may well have scrupulously refrained from any active 

attempt to help the Hickeys by curing the notice defect -- which 

would have been to the detriment of project's proponent. I view 

such behavior as appropriately neutral, and not the sort of 

willful attempt to dodge notice or process that would be 

improper. As the town planner testified at deposition, "[the] 

responsibility to file with the Town Clerk the appeal of a 

decision is not mine . . . It's not my job to provide the Town 

Clerk what the attorney for the appellant is supposed to provide 

the Town Clerk."
7

(notice of appeal filed with clerk); Konover, supra (copy of 

complaint shown to clerk). 

For these reasons, I would hold that a plaintiff seeking 

judicial zoning review is not entitled to the benefit of the 

town clerk's personal knowledge for purposes of satisfying G. L. 

c. 40A, § 17, unless that knowledge can reasonably be connected 

to a timely attempt to provide formal, written notice to the 

clerk by some reasonably effective means. Such a rule is 

consistent with Konover, where the court emphasized the details 

of the plaintiffs' counsel's attempted service on the clerk's 

office, and found that his failure to do so was a "'relatively 

innocuous' misstep that was not 'so repugnant to the procedural 

scheme, so destructive of its purposes, as to call for 

dismissal."5 Konover, supra at 327, quoting from Schulte v. 

Director of the Div. of Employment Sec., 369 Mass. 74, 79 

(1975). 

 

5 As stated in Konover, "[s]trict 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. Doublechecking the accomplishment of such jurisdictional and 

potentially outcome-determinative matters appears to be well 

within the duty of competence within which a lawyer, as a 

fiduciary, owes to the client -- a duty that cannot be delegated 

without proper supervision and control." Konover, supra at 327, 

n.13 (noting that Konover's procedural misstep might have been 

fatal in different circumstances).
8

Here, because the plaintiffs served only the board and 

made no attempt to provide separate notice to the town clerk, as 

required by the statute, I believe the appeal was properly 

dismissed by the Land Court. See Pasqualino v. Board of Appeals 

of Wareham, 14 Mass. App. Ct. 989, 990 (1982). I would affirm.