LEWANDOWSKI v. ZONING BOARD OF APPEALS OF CHELSEA (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff admits that providing timely notice of the action to the city or town clerk is a jurisdictional prerequisite for an action under G. L. c. 40A, § 17, to appeal from a decision of the zoning board of appeals (board).³ He also admits that he failed to serve such notice within the statutory twenty-day appeal period. Nevertheless, the plaintiff contends that dismissal on summary judgment of his § 17 complaint was improper because, prior to the issuance of the board's decision, the plaintiff and his counsel repeatedly called and visited the board's secretary and the clerk's office, inquiring whether the decision had issued, and because the plaintiff told the board's secretary he planned to appeal. We affirm.

Background. It is undisputed that, on September 28, 2018, the board filed with the Chelsea city clerk its decision granting a variance and special permit for property located at 34 Beacon Street (decision). On October 17, 2018, nineteen days after the decision was filed, the plaintiff filed in Superior Court an appeal from the decision pursuant to G. L. c. 40A, § 17. Although the plaintiff's counsel requested that the constable serve a copy of the complaint on the city clerk on that same day, the constable was unable to do so and service was not made on the city clerk until October 23, 2018, twenty-five days after the board filed its decision. The city clerk averred that she did not become aware of the action until October 23, 2018.

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.’ ” Hickey v. Zoning Bd. of Appeals of Dennis, 93 Mass. App. Ct. 390, 392 (2018), quoting Konover Mgt. Corp. v. Planning Bd. of Auburn, 32 Mass. App. Ct. 319, 322-323 (1992). See Bingham v. City Council of Fitchburg, 52 Mass. App. Ct. 566, 567, 571 (2001) (“Failures in meeting the twenty-day deadline are not forgiven” even where notice to clerk was delivered fifteen minutes after clerk's office closed on twentieth day, mayor opened clerk's office door and date-stamped papers, but clerk was not made aware of notice until next day).

While certain exceptions exist, “[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. The statutory purpose is then served, because ‘interested third parties [can] be forewarned [by the clerk] that the zoning status of the land is still in question.’ ” Konover, 32 Mass. App. Ct. at 324-325, quoting Carr v. Board of Appeals of Saugus, 361 Mass. 361, 363 (1972). By contrast, here it is undisputed that the clerk did not have notice of the complaint within the twenty-day appeal period. That the plaintiff and his attorney verbally communicated their intention to appeal is insufficient to meet the notice requirements of the statute. The plaintiff's argument that dismissal is not warranted unless the city can show prejudice was considered and rejected in Norfolk County v. Zoning Bd. of Appeals of Walpole, 16 Mass. App. Ct. 930, 930 (1983), quoting Carr, 361 Mass. at 363 (“telephone notice that an appeal from the board's decision will be taken is nugatory because such notice puts nothing in the record by which ‘interested third parties would be forewarned that the zoning status of the land is still in question’ ”).⁴

Judgment affirmed.

FOOTNOTES

3.   General Laws c. 40A, § 17, provides, in pertinent part:“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.”

4.   Because of the result we reach, we need not consider whether the complaint also could have been dismissed for failure to name and serve the individual members of the board.