NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 

23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, 

as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties 

and, therefore, may not fully address the facts of the case or the panel's 

decisional rationale. Moreover, such decisions are not circulated to the entire 

court and, therefore, represent only the views of the panel that decided the case. 

A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 

2008, may be cited for its persuasive value but, because of the limitations noted 

above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 

n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-416

JOSHUA SMALL & another1

vs.

PLANNING BOARD OF WESTPORT & others.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On June 17, 2022, the plaintiffs filed a complaint in the 

Superior Court seeking to challenge the planning board of 

Westport's (board) grant of a special permit and site plan to 

Ironwood Renewables, LLC (Ironwood), issued May 31, 2022. 

Although the plaintiffs timely filed their appeal in court, they 

failed to file a notice of appeal with the town clerk's office 

as required by G. L. c. 40A, § 17 (§ 17). As a result, Ironwood 

filed a motion to dismiss under Mass. R. Civ. P. 12 (b) (1), 365 

Mass. 754 (1974). The plaintiffs served discovery, and sought 

an extension of time to respond to the motion. A judge allowed 

the extension, but stayed discovery. Ultimately the plaintiffs 

1 Richard Armstrong. 2 Ironwood Renewables, LLC and Pat Mayall in her capacity as 

trustee of the Mayall Family Realty Trust.
2

filed an opposition to the motion, and after a hearing, a 

different judge allowed the motion. Judgment entered, and this 

appeal followed.

Here, the plaintiffs filed their complaint in the Superior 

Court within twenty days, but failed to file any notice of 

appeal with the town clerk's office within twenty days as 

required by § 17. Section 17 states in relevant part:

"Any person aggrieved by a decision of the board of appeals 

. . . may appeal to . . . the superior court . . . 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."

Thus, receipt of notice by a city or town clerk is a 

prerequisite for an action under G. L. c. 40A, § 17, that is 

"policed in the strongest way and given strict enforcement" 

(quotation omitted). Bingham v. City Council of Fitchburg, 52 

Mass. App. Ct. 566, 568 (2001). Here, the plaintiffs filed an 

affidavit "as to service of appeal complaint" with certified 

mail receipts addressed to the defendants (but not the town 

clerk) dated June 23, 2022, two days after the twenty day appeal 

period had expired under § 17. It is well settled that the 

notice requirement is jurisdictional, and therefore the

plaintiff's failure to timely file their notice of appeal with 

the town clerk's office is fatal. See Iodice v. Newton, 397 

Mass. 329, 333-334 (1986). This is due to "[t]he public 
3

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" (quotation omitted). O'Blenes v. Zoning Bd. of 

Appeals of Lynn, 397 Mass. 555, 558 (1986).

Notwithstanding, the plaintiffs contend that they are 

entitled to conduct limited discovery on the town clerk's 

knowledge of their appeal and thus the judge erred by not 

allowing them to do so. The plaintiffs' reliance on our holding 

in Hickey v. Zoning Bd. of Appeals of Dennis, 93 Mass. App. Ct. 

390 (2018), to support their claim is misplaced. Unlike this 

case, in Hickey, there was record evidence that the clerk had 

actual knowledge within the twenty day appeal period that the

plaintiffs had filed a complaint in the Land Court, and thus we 

held that, under the circumstances presented, the state of the 

clerk's knowledge controlled, and the requirements of § 17 were 

satisfied. Id. at 394. Here, the unrebutted sworn affidavits

of the town clerk and assistant town clerk confirm that they had 

no knowledge of the appeal until sometime after June 21, 2022,

and that no notice of appeal was filed within the requisite 

twenty day appeal period. On these facts, the judge did not 

abuse her discretion in denying the plaintiffs' request for
4

limited discovery. See L.L. v. Commonwealth, 470 Mass. 169, 185 

n.27 (2014).3

Judgment affirmed.

By the Court (Rubin, Blake & 

Shin, JJ.4),

Assistant Clerk

Entered: March 6, 2024.

3 The defendants' request for an award of appellate attorney's 

fees is denied.

4 The panelists are listed in order of seniority.