In Hickey v. Zoning Board of Appeals of Dennis, a divided panel of the Massachusetts Appeals Court weakened and confused the requirement that a zoning appellant notify the Town Clerk of an appeal within the statutory deadline.
The Dennis ZBA upheld a determination by the building commissioner that a stairway to the beach was not subject to certain zoning requirements, and filed its written decision with the Town Clerk. The Hickeys, abutters to the site, appealed to the Land Court within 20 days of the filing of the decision, as required by Chapter 40A, Section 17.
However, that statute also requires that “[n]otice of the action with a copy of the complaint shall be given to such city or town clerk … within such twenty days.” The Hickeys failed to send any timely notice to the Town Clerk. Instead, they sent the complaint to the ZBA Chairman at Town Hall, that package ended up in the town planner’s office, and the town planner told the assistant town clerk about the appeal, all within the 20 days.
Reversing the Land Court, the Appeals Court held that those steps complied with Section 17. It acknowledged that the 20-day notice requirement is strictly enforced to ensure that the public has timely notice that the parcel’s zoning status is in dispute. Having the notice and copy of the complaint stamped in at the city clerk’s office by the mayor 15 minutes after the office had closed on the 20th day was insufficient (Bingham v. City Council of Fitchburg). However, the requirement has been relaxed as long as the clerk had notice of the appeal within the 20 days. It was held to comply where the plaintiff filed a copy of the complaint without a separate notice (McLaughlin v. Rockland Zoning Board of Appeals), filed a notice without a copy of the complaint (Carr v. Board of Appeals of Saugus), misdirected the papers addressed to the town clerk but the town planner showed the complaint to the assistant town clerk (Konover Management Corp. v. Planning Board of Auburn), and even delivered the notice and copy of the complaint to the town clerk at home after business hours (Garfield v. Board of Appeals of Rockport). Thus, the key issue is the clerk’s actual knowledge of the complaint, not the physical location of the papers. (The cases do not distinguish between a town clerk and an assistant town clerk.)
The Court in Hickey extended “actual knowledge” by holding that the clerk’s being told about the appeal by the town planner was sufficient. It rejected the Land Court’s reliance on the hearsay nature of the information, declining to impose “adjudicative evidentiary standards” on that knowledge.
The dissent noted that, under the previous cases, the clerk’s actual knowledge suffices only where the plaintiff tried to deliver the required papers within the 20 days. More important, the dissent correctly noted two problems with this decision for future cases where the plaintiff did not strictly comply with Section 17.
First, the decision opens the door for other people to tell the clerk about the appeal. It guarantees future litigation about which third parties – Any town employee involved in zoning and planning? Any town employee? Anyone? – are sufficiently reliable that their telling the clerk about the appeal satisfies the statute. Surely the court did not mean that plaintiff’s counsel can call the clerk on the 20th day instead of filing the papers. That would completely gut the statutory requirement.
Second, by making routine town hall conversations among various municipal employees and volunteers – who ordinarily want to remain neutral in disputes between town residents – part of the determination of what the town clerk knew, the decision both places those people in a difficult position and subjects them to discovery in the appeal. In Hickey itself, the town clerk, assistant town clerk and town planner all were deposed. This decision makes it likely that such impositions will become more common in zoning appeals.
The lesson for plaintiff’s counsel, of course, is simple. Even after Hickey, the safer course is simply to file the notice and copy of the complaint with the city or town clerk within the 20 days. Section 17’s requirement of notice to the clerk, with its assumption that that constitutes effective notice of a zoning dispute to the public, may be antiquated, but it is clear.