Appealing a zoning board decision is an option available for anyone who has received an unfavorable zoning decision, or who is harmed by someone else’s zoning matter.
This blog post does not cover zoning matters in the City of Boston. Zoning in Boston falls under a different set of rules and is slightly different. I’ll write about Boston zoning in a future blog post.
Who Can Appeal?
A “person aggrieved” by a decision from a zoning board is entitled to appeal such a decision. This requirement is known as standing: one must have a real interest in the outcome of the zoning board to pursue an appeal.
This is a critical point about appealing a zoning board decision. Not just anyone can pursue such a matter; one needs to show aggrievement. Failure to do so will be fatal to a zoning appeal.
What is the Deadline for Appealing a Zoning Board Decision?
This is a “hard and fast” deadline: there are few, if any, exceptions allowed for the late filing of such an appeal.
Zoning appeals are generally filed in either Superior Court or Land Court, with advantages and disadvantages for pursuing such a case in each court.
Considerations for An Appeal
A major consideration for a zoning appeal is the likelihood of success in such a matter. The law gives zoning boards wide discretion in the decisions they make. However, such relief needs to have supporting basis in law and fact.
Variances, in particular, have detailed requirements to obtain, and a failure to meet each of these criteria can be grounds for a viable appeal.
Reviewing a zoning board decision with an experienced attorney is critical before making a decision to appeal.
I’ve helped many Massachusetts property owners pursue and defend zoning appeals. If you need assistance with such a matter, contact me for a consultation.
Appearing before a zoning board is often required when a property owner is seeking a specific use of their property, or wishes to appeal a decision of a town or city building department. Unlike courts, where most parties are represented by attorneys, it is common for individuals to appear on their own behalf before a zoning board (although having an attorney can help in many cases).
Here, I want to offer some advice on appearing before a zoning board in Massachusetts.
What Are the Zoning Boards in Massachusetts?
The two most common zoning boards in Massachusetts are the Zoning Board of Appeals (“ZBA”) and the Planning Board. Each town or city has different rules on the specific zoning relief that each of these boards can consider.
Some towns and cities also have zoning decisions heard by the city council or selectboard. Boston has its own, unique system of zoning decision making.
Know What Is Required For What You Are Seeking
Zoning requests have different requirements that an applicant must satisfy. Simply explaining why you want the zoning relief is generally not enough; an applicant must show why their request meets each of the requirements.
Variances have detailed requirements which are generally uniform for all Massachusetts cities and towns. Special permit requirements are often unique for each individual jurisdiction.
Put It In Writing
A good piece of advice on appearing before a zoning board is what you can do before the meeting. You should consider submitting a letter to the board, in advance, that explains what you are looking for and why you meet each of the zoning requirements.
Doing this before the meeting will give the board members time to review your request in advance.
Seek the Support of Abutters
Often, a zoning request can implicate the rights of persons living near the property, known as abutters. Because of this, zoning boards often like to hear that abutters have no objection to the zoning request before them.
If you can, try to obtain a letter of support from such abutters or, even better, ask them to appear at the meeting on your behalf. If an abutter has concerns about the zoning relief you are seeking, try to work this out with them in advance.
Understand the Appeals Process
Anyone aggrieved by a zoning decision has the right to appeal. Such appeals, however, generally come with an extremely tight deadline. If you find yourself having to appeal, be sure to pay close attention to the timing of when the appeal must be filed. You should also consider obtaining an attorney, as zoning appeals can be complicated.
Zoning is an incredibly important topic for property owners in Massachusetts. If you find yourself in need of assistance with such a matter, contact me for a consultation.
I previously wrote a post about Murchison v. Zoning Board of Appeals, concerning the matter of challenging a zoning decision. This was a decision from the Appeals Court that discussed who can pursue a zoning appeal. Murchison, in essence, held that any zoning decision that affected a density matter was grounds for pursuing a zoning appeal.
This decision was of great concern to many developers and real estate professionals, who worried that the decision would allow anyone to pursue a zoning appeal. The Supreme Judicial Court (“SJC”) agreed to review this decision again, and ruled that the party trying to pursue this appeal in Murchison lackedstanding to do so.
Challenging a Zoning Decision: Who Is Permitted to File an Appeal?
Massachusetts law allows for appeals of local zoning decisions from zoning board of appeals (“ZBA”), planning boards, and other local zoning agencies. Such an appeal must be filed twenty days after the decision is filed with the city or town clerk.
Challenging a zoning decision requires a party to be aggrieved. In essence, this means that the party will suffer harm from the zoning decision. In legal terms, this is referred to as having standing to pursue the case.
Standing for a zoning appeal is a critical, threshold requirement. If a party lacks standing, the appeal will be dismissed.
Zoning Appeals After Murchison
Murchison concerned one of the common grounds for showing aggrievement: density. Density is often regulated through front and side setback requirements, height limitations, and lot-width restrictions. The purpose of such density restrictions are to prevent overcrowding of properties.
Massachusetts law allows a party to apply for an exemption from a zoning requirement, known as a variance. In limited circumstances, the town or city zoning board can grant such a exemption. If, however, another party is harmed by such a decision, they have a right to appeal.
For example, if a property owner obtains a variance allowing them to build a storage shed closer to their neighbor’s home, the neighbor will likely be able to appeal this decision.
The Appeals Court decision in Murchison (which the SJC overturned) suggested that any violation of a density requirement was grounds for standing. This was contrary to prior decisions, which suggested that a party needed to show some actual harm from the zoning relief. If, for example, the party wishing to appeal was not located near the subject property, the Appeals Court decision suggested that the zoning appeal could still proceed.
The SJC overturned the Appeals Court decision in Murchisonthe day after the hearing in this matter. I’ve never heard of the SJC ever issuing a decision so quickly, which underscores the importance of this matter.
However, the SJC has not yet issued a written decision on this matter. Until they do, the law on zoning appeals remains unclear.
If you need assistance with a zoning appeal, contact me for a consultation.
The Massachusetts Property Law Blog is proud to have Attorney Joseph N. Schneidermanguest blog on upcoming zoning decisions from the Massachusetts Appeals Court. Attorney Schneiderman is an appellate attorney licensed in Massachusetts and Connecticut and may be contacted at email@example.com.
Verizon sought to build a cellular tower in Dudley. On August 22, 2017, Verizon successfully obtained a special permit from the Dudley Planning Board. On September 11, 2017, the Pecynas, as self-represented abutters, timely appealed the special permit to the Worcester Superior Court but did not join Verizon as a party. Compare G.L. c. 40A, §17 (Aggrieved party has 20 days to appeal.) Curiously, the Town Clerk issued a certificate of no appeal the next week. As ten months of litigation elapsed, Verizon built the tower.
Later represented by counsel, the Pecynas unsuccessfully sought an injunction to demolish the tower and to belatedly join Verizon as a party. A Superior Court judge denied both motions and dismissed their appeal, reasoning that: (1) because the Town Clerk never received the notice of appeal, the appeal was untimely and (2) belatedly joining Verizon would be prejudicial because Verizon built the tower despite the faulty notice. The Pecynas appealed to the Appeals Court. Curiously, the Town of Dudley did not file a brief-although Verizon appeared and argued as amicus curiae.
The Pecynas asserted that they notified the town orally that they intended to challenge and appeal the special permit. The Pecynas further asserted that they attempted to file the appeal but the Town Clerk refused to accept it until Day 21-and apparently wanted discovery on that point. By contrast, Verizon asserted that only actual notice suffices, citing much of the caselaw leading to Hickey. Verizon also asserted that the Pecynas forfeited or waived their right to seek discovery on the issue notice by filing a written motion for discovery.
Like Hickey, two compelling doctrines are clashing here. On the one hand, courts demand and enforce strict compliance with the timing and notice provisions of Section 17. Those provisions ensure that Verizon has no encumbrances to building its tower, or conversely, so the Pecynas know about and can challenge it.
If the Pecynas have truly preserved their right to seek discovery on notice, a good intermediate solution is for the Appeals Court to remand the case for a hearing on that point-and possibly even retain jurisdiction. The trial judge could weigh whether the prejudice to the Pecynas of having the town thwart their ability to appeal outweighs the prejudice to Verizon of relying on a faulty certificate to build a tower.
Nimchik (Lemire, Singh, and Wendlandt, J.J.)
This case is a challenge to “spot zoning”, i.e., singling out land in a particular area without regard to the general objectives of zoning. More specifically, a building supply company successfully applied to the Chicopee City Council to rezone parcels residential land to business land to facilitate the construction of a garage. This residential neighborhood is west of Route 33 near Westover Air Force Base. That part of Route 33 is, to quote Homer J. Simpson, a “miracle mile where value wears a neon sombrero and there’s not a single church nor cultural institution to offend the eye.” The abutters sued in the Western Housing Court, asserting that the rezoning amounted to unlawful spot zoning. A Judge granted summary judgment for the business and city.
The abutters press on appeal that constructing the large garage and subsequent large truck traffic would be detrimental to the residential neighborhood and only benefits the building supplier and is not a public benefit for zoning. The abutters further contend that the city council’s voting practices to rezone the land were unlawful because there were not enough votes supporting the rezone. Finally, the abutters contend that the judge needed to make express findings of fact resolving the appeal as the judge allowed the motion in a handwritten margin endorsement.
The city and the supplier counter that much of the abutting land is already zoned for business and that the residents will not suffer any detriment. The city and the supplier further argue that the abutters have forfeited or waived any issue on the voting practices by not expressly raising the issue in opposition to summary judgment. Much of the oral arguments focused on this point; Justice Lemire asked counsel for the abutters three different times about how and where this issue appeared below.
Spot zoning, i.e.,, that a municipality has singled out land without regard for the public welfare and purposes of zoning is certainly a serious issue since the Zoning Act requires uniformity-and amounts to a constitutional violation. But, the abutters are carrying a heavy burden to prove not only that there is spot zoning but that there should be a trial. the abutters so See e.g. Van Renselaar v. City of Springfield, 58 Mass. App. Ct. 104, 108 (2003). The abutters’ brief hints that, perhaps, Chicopee could have and should have granted a variance because of unusual land conditions here-indeed, one parcel is triangular. But if the city and the supplier are right about the neighboring land, the motion judge probably correctly resolved the issue at summary judgment.
Johnson (Milkey, Sullivan, and Ditkoff, J.J.)
An ice cream stand owner on Lake Avenue along Lake Quinsingamond in Worcester sought to expand into a full borne fast food restaurant. He sought a special permit and variance for relief from the required parking spaces the Worcester Zoning Code require. Abutters who own property on Lake Avenue (also then self-represented) sued and the Superior Court granted summary judgment for the city and property owner.
On appeal, the abutters assert that by adopting the findings of the zoning board verbatim as their facts in support of summary judgment, which were unsupported, summary judgment was inappropriate. The abutters specifically emphasize that they put forward evidence that the expansion would increase noise, traffic and there is nothing unique about the parcel topographically to justify the variance. Rather, the Board granted the variance because it would be substantially beneficial. The abutters have also pressed that summary judgment was inappropriate in light of how the zoning appeal process is a de novo factual review.
The City counters that the abutters did not oppose their statement of facts. This raised concerns at argument-Justices Sullivan and Ditkoff alike pressed counsel for the city on whether or not there was not factual support. This led to the City’s point that the abutters have waived or forfeited this issue on appeal-and it was too late to challenge that in a motion for reconsideration. Justice Milkey contended that responses to interrogatories were part of the record-and questioned whether or not that fact alone would create a genuine issue of fact. The City continued to harp that the pro se abutters waived it-which drew serious doubt from Justices Milkey and Sullivan. Indeed, Justice Sullivan quite emphatically asked counsel for the city, “Is the city troubled by the notion of making a waiver argument against a pro se taxpayer where the problem was created by the manner in which the city presented its case?”
The verbatim adoption of one party’s statement of facts is not error in and of itself. See e.g. Cormier v. Carty, 381 Mass. 324 (1981) But, those facts are subject to challenge for clear error and reviewing courts will carefully scrutinize those findings. Id. This is also just as much of an issue in zoning cases-the verbatim articulation of the variance standards without factual support for the variance is error. Indeed, a board must make detailed findings to justify a variance. See e.g. Wendy’s Hamburgers v. Board of Appeal of Billerica, 454 Mass. 374, 387 (2009)
If the city did indeed make shoddy findings that do not justify the variance and indeed there is no basis for it, summary judgment is completely inappropriate and a trial should occur. The only question is whether or not the abutters waived or forfeited the issue-and even that is not crystal clear. If the abutters did indeed proffer responses, that should suffice as counter evidence to defeat summary judgment.
All three appeals could rise or fall on the issue of waiver/forfeiture. The waiver/forfeiture rule means that a party cannot raise a legal issue for the first time on appeal that they did not raise in the lower court. To quote Justice John Greaney, the waiver/forfeiture rule exists because “…there is something unseemly about telling a lower court it was wrong when it never was presented with the opportunity to be right.” Commonwealth v. Alphas, 430 Mass. 8, 23 (1999). In criminal cases, the rule is relaxed. But in civil cases, including zoning cases, the rule is hard and harsh-even if the parties are self-represented. As earlier, if the Pecynas did not put the lower court on notice of the Town Clerk gaming the system, their appeal is or may be doomed.
Similarly, in Nimchik, although the validity of the vote to rezone is potentially a serious one, if the abutters did not properly preserve the issue, it’s not fair game on appeal-and neither the lower court nor the appellate court will comb the record to identify it. If there is a question about preservation, lay it out at the outset-or write a compelling a reply brief pointing out how the parties raised and addressed the issue below. Or better yet, avoid the issue of preservation by bringing in appellate counsel to frame and hone the legal issues and write a compelling motion or opposition.
However, in Johnson, if the parties did all they thought they could do to put the lower court on notice of some issue of fact, waiver/forfeiture is completely inappropriate. Indeed, Justice Sullivan made an important point during oral argument that it would not be fair to hold the rule against a self-represented party who tried to put the lower court on notice of an issue that the city did not.
Nimchik and Johnson offer important opportunities to clarify the application of summary judgment to zoning cases. Summary judgment is appropriate when a party’s evidence demonstrates there is no genuine issue of material fact and one party deserves judgment as a matter of law. However, zoning appeals are also de novo proceedings-that is, a court finds completely new facts without regard to how the zoning board found facts. Jury trials are available in Superior Court zoning appeals.
However, nearly 40 years ago, the Supreme Judicial Court specifically endorsed and recognized summary judgment as an appropriate remedy in zoning appeals, even though zoning appeals could be quite “factually complex.”. Framingham Clinic v. Zoning Board of Appeals of Framingham, 382 Mass. 283, 299 (1981). Zoning boards often (tend to) assert that their decisions and findings deserve substantial deference-including on appeals from summary judgments in their favor. This is despite how appellate courts review summary judgment decisions de novo-without deference to the lower court judge.
This tangle also arises in practice. As noted earlier, the abutters/plaintiffs asserted that they wanted express factual findings in both Nimchik and Johnson. But motion judges do not find facts on summary judgment, motion judges determine whether there is some genuine issue of material fact. An express articulation of facts would be better suited for resolving a case on cross-motions for summary judgment to explain why there are no issues of fact and one party or the other is correct as a matter of law. Ideally, the Appeals Court will clarify this tangle and provide substantive guidance to the practicing bar about how to frame and pursue these motions.
Joseph N. Schneiderman has an appellate practice with a particular interest in zoning since he took on the Boston Zoning Board in the Appeals Court. Joe also speaks to the Hampden County Bar AssociatIon’s Real Estate Section about the latest appellate developments. Joe gratefully thanks Adam for another opportunity to blog!
NOTE: The decision discussed in this blog post has been overruled by a later Supreme Judicial Court decision. Read about it here.
The Massachusetts Appeals Court issued an important decision last month on who can appeal a zoning decision. This decision clarifies that overcrowding concerns related to zoning approval are adequate grounds for giving a party a right to appeal one of these decisions. The full decision, Murchison v. Zoning Board of Appeals of Sherborn, is included below.
Zoning are local regulations on the use of real property. These ordinances generally regulate the size, dimension, and uses of property, and are enacted by individual towns and cities across Massachusetts.
Often, certain desired uses of property require specific approval from the local municipality, such as a special permit or site plan review. A property owner, in most cases, is also entitled to apply for an exception to a zoning regulation, known as a variance.
Zoning decisions are generally made by a town or city’s zoning board of appeals or planning board. A party who is not happy with one of these decisions has the option of pursuing an appeal of such a decision in court.
Who Can Appeal a Zoning Decision in Massachusetts?
Not anyone can appeal a zoning decision. The law only allows a “person aggrieved” to bring an appeal. This is a critical, threshold requirement that must be satisfied for any zoning appeal.
There is a practical reason for this requirement. It would be unfair to allow a person who has no stake in the zoning outcome to get involved in one of these decisions. This requirement is similar to nearly every other civil lawsuit: one must show they have a “dog in the fight” to pursue a legal matter.
How Can Someone Show They Are a “Person Aggrieved”?
Arguably the most common basis for showing standing is a density concern (also known as overcrowding). The claimed harm is that the zoning relief will result in the construction of a building (or a use of land) that is larger or closer than what the zoning regulations intend for.
In Murchinson, the Appeals Court needed to determine the extent to which a party needed to show a density concern for the purposes of establishing standing. In this case, the claimant bringing the zoning appeal lived across the street from a proposed development, which was seeking zoning approval to construct a development without the town’s minimum lot width.
Minimum lot width is a density zoning regulation, aimed at preventing homes and building from being constructed too close to each other. In Murchinson, the proposed development would have only slightly violated this regulation. Based on this, the zoning appeal was dismissed, on the grounds that any alleged harm of overcrowding was de minimis (minor).
Murchison reversed this holding, by ruling the following:
There is no platonic ideal of overcrowding against which the plaintiffs’ claim is to be measured. Although the distance between the houses might not amount to overcrowding in an urban area . . . cities and towns are free to make legislative judgments about what level of density constitutes harm in various zoning districts and to codify those judgments in bylaws. It does not matter whether we, or a trial judge, or the defendants, or their counsel, would consider the district “overcrowded.” What matters is what the town has determined.
Prior zoning decisions suggest that not every concern about overcrowding can constitute standing for a zoning appeal. If the potential harm from the zoning relief is minor, previous cases seem to imply that minor harm, alone, is not enough for a zoning appeal.
Murchison, in my opinion, leaves that decision entirely up to the town or city’s zoning ordinance. If a town or city regulates density in any way, any zoning decision that results in a change to such density is grounds for standing.
Of course, simply having standing is not enough to overturn a zoning decision. Standing simply allows a person to have their day in court on such a matter.
If you need assistance with a zoning matter, contact me for a consultation.
Like most states, zoning decisions in Massachusetts are primarily made at the local level, through municipal boards. One of the most common types of zoning decisions are requests for variances. While a municipal board (commonly called the zoning board of appeals in most towns and cities) makes the decision on whether to grant a variance, such a decision can be appealed.
What is a Variance?
A variance is an exemption from a zoning requirement. Zoning ordinances regulate how a land owner may use their property, which typically includes regulations on the allowed uses and activities.
A property owner has a right to seek an exemption from a zoning requirement by applying through a variance. A variance requires the following:
[T]hat owing to circumstances relating to the soil conditions, shape, or topography of such land or structures and especially affecting such land or structures but not affecting generally the zoning district in which it is located, a literal enforcement of the provisions of the ordinance or by-law would involve substantial hardship, financial or otherwise, to the petitioner or appellant, and that desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of such ordinance or by-law.
In short, a variance requires that the property have something unique about it, and due to this condition, the property owner will suffer hardship if forced to comply with the zoning ordinance.
Appealing a Variance
The decision to grant a variance is generally made by the local zoning board of appeals (“ZBA”). Such decisions are done at open public meetings, with members of the community permitted to speak in favor or in opposition of the request. After a decision is made, the ZBA issues a written decision stating its reasons for approval or denial.
A party aggrieved by a variance decision has a right to appeal. Such an appeal is made to either Superior Court or, most commonly, to Land Court. In such an appeal, the court hears all evidence about the variance and issues a decision upholding or denying the variance.
What’s the most important thing to know about appealing a variance? Act quickly. There is a short deadline for filing such an appeal, and a detailed process for doing so. Failure to comply with these requirements can be grounds for immediate dismissal of an appeal.
Not anyone can appeal a variance. Only a person “aggrieved” by such a decision may do so. The issue of whether a person can bring such a claim (known legally as whether the party has standing) needs to be determined carefully. Simply not agreeing with a zoning decision, on its own, is not enough to bring an appeal.
Appealing a variance requires a thorough knowledge of the applicable law and underlining property. For this reason, one should strongly consider hiring an experienced lawyer for such a matter.
If you need help with a variance, contact me for a consultation.
The Massachusetts Appeals Court issued an important decision this week on appealing a zoning decision in Massachusetts. This case demonstrates the critical importance of timely appealing such a matter. The case, McIntyre v. Zoning Board of Appeals of Braintree, is included below.
The facts of this case are fairly straightforward. In Braintree, a building inspector (who was responsible for enforcing the city’s zoning requirements) issued a building permit. An abutter of the property that received this building permit appeal this decision.
This type of appeal, commonly known as an administrative appeal, is allowed under Massachusetts law and usually must be made to the town or city’s zoning board of appeals. This type of appeal determines whether the building inspector (or zoning enforcement officer) correctly interpreted the applicable zoning requirements.
An administrative appeal is also allowed when the zoning officer refuses to enforce a zoning requirement, and an aggrieved party believes that this non-action violates the zoning requirements.
An administrative appeal is different than a request for a variance, where a property owner is seeking an exemption from a zoning requirement. An administrative appeal simply determines whether the applicable zoning requirements were correctly interpreted.
Here, the party seeking to appeal the building permit filed their appeal forty-four days after learning about the building permit . . . well after the thirty-day deadline.
To avoid dismissal of their appeal, this party tried a creative argument. Under Massachusetts law, if a zoning board of appeals fails to issue a decision on an administrative appeal within 100 days after the filed appeal, a party can win their appeal through a process known as constructive approval.
In this case, the board of appeals held that the party failed to timely file their appeal of this administrative decision. However, the board failed to issue its decision within the 100 day deadline. As such, the party argued that a constructive approval occurred. This party argued that, because a constructive approval occurred, it did not matter that they missed the original thirty-day deadline.
Decision and Practical Implications
The Appeals Court rejected this argument, holding that a party needs to meet the thirty-day deadline in order to pursue an administrative appeal. Although constructive approval is a recognized means of winning an appeal when a board of appeals fails to act, this is not an excuse for ignoring the thirty-day deadline under G.L. c. 40A, § 15.
This case has an important lesson for appealing a zoning decision: deadlines matter. This is in keeping with other Massachusetts decisions, where the failure to satisfy such a deadline can be fatal to one’s case.
Massachusetts zoning law imposes an array of restrictions on the right to use one’s property. The law permits a party to seek an exception (known as a variance) if a party believes they have unique circumstances excusing them from fulfilling the zoning requirement.
Challenging a zoning requirement requires a property owner to file a petition in Land Court against the city or town to determine the validity of the zoning requirement. This law, G.L. c. 240, § 14A, is similar to a request for a declaratory judgment, where a court is authorized to make binding orders on actual controversies. Often, a party challenging a zoning requirement will bring an action under G.L. c. 240, § 14A and seek a declaratory judgment.
Limited Requirements for Challenging a Zoning Requirement
A critical part of a G.L. c. 240, § 14A petition is that a landowner has limited prerequisites for challenging a zoning requirement. The homeowner does not need to have applied for a building permit or have obtained any architect plans for the proposed work. This is important because it avoids requiring a property owner to assume these large costs prior to determining whether it has to comply with the zoning requirement.
Without this exclusion, a homeowner would seemingly have to substantially commit to the project before determining the zoning requirement’s validity, which would seemingly defeat the entire purpose of this law: allowing for such a determination prior to the start of the project.
Practical Implications for Challenging a Zoning Requirement
The Court, importantly, will not simply decide whether the requirement is good public policy. Rather, the Court will look at whether the requirement has no basis for being a zoning restriction. With this in mind, a successful G.L. c. 240, § 14A petition needs to make this case, and not merely ask the Court to second guess the city or town’s law making process.
If you need assistance with challenging a zoning requirement in Massachusetts, contact me for a consultation.
The Massachusetts Property Law Blog is proud to have Attorney Joseph N. Schneidermanguest blog on the Massachusetts Appeals Court’s recent Hickey v. ZBA of Dennis decision, an appeal involving proper notice for a zoning appeal. Attorney Schneiderman is an appellate attorney licensed in Massachusetts and Connecticut and may be contacted at firstname.lastname@example.org.
On June 15, in Hickey v. ZBA of Dennis, 93 Mass. App. Ct. 360, the Appeals Court, by a 2-1 vote, held that two zoning appellants had provided adequate notice to the Dennis Town Clerk and reversed allowance of summary judgment in favor of the Board. Specifically, although the appellants did not address the appeal to the Town Clerk, an assistant clerk discussed the notice with the town planner within the appeal period.
The Hickeys own land along Cape Cod Bay and proposed to build a staircase. Ultimately, the Board denied them zoning relief and filed their decision with the Town Clerk on April 14, 2016. On April 20, 2016, by counsel, the Hickeys timely appealed to the Land Court under G.L. c. 40A, §17. Counsel sent copies of the appeal by certified mail to the individual members of the Board at their home and one to the chairman at Dennis Town Hall. The town planner received the appeal on April 25 and discussed it with an assistant town clerk some time before May 4. However, the Hickeys did not notify the Town Clerk until May 5 by e-mail-after learning that she had not received the appeal.
The Board moved to dismiss, asserting that the Hickeys did timely not serve the Town Clerk pursuant to G.L. c. 40A, §17. The Land Court allowed limited discovery on the issue of timeliness. The Land Court later converted the Board’s motion into one for summary judgment and concluded that there was not timely notice.
The Appeals Court reversed and reinstated the zoning appeal. Writing for the Court, Chief Justice Green recalled the failure to timely serve a zoning appeal on a Town Clerk was a jurisdictional defect that courts strictly policed. Indeed, notice was important not only to the town but anyone who may be aggrieved.
However, so long as the Clerk had actual knowledge of the appeal, notice sufficed. The Court recalled that filing a copy of the complaint but no notice of appeal (and vice-versa) suffice, as did serving the clerk at home after hours on the last day of the appeal period. Finally, serving the appeal at town hall with papers addressed to the town clerk that the clerk did not receive (and learned of from a town planner) sufficed. Citing Konover v. Planning Board of Auburn, 32 Mass. App. Ct. 319 (1992). The Court held that Konover echoed the present case where the Dennis town planner received the appeal and discussed it with an assistant town clerk before the end of the 20 day period. This sufficed to show actual knowledge.
Justice Singh dissented, asserting that the plaintiffs bore the burden of proving timeliness and noted deposed the town clerk to prove notice. Justice Singh argued that the cases the majority relied on dealt with instances where the appellants actually attempted to serve the clerk-but for whatever reason, service was imperfect. By permitting actual knowledge to suffice, the majority would subject town officials to litigation-and permit the exception to swallow the rule. Since the appellants did not attempt to serve the town clerk in a timely fashion, Justice Singh would have dismissed their appeal.
This case poses an interesting doctrinal duel. On the one hand, notice is a fundamental pre-requisite to a zoning appeal. However, notice does not occur in a vacuum and the important end is that a town (and anyone aggrieved) be aware that a zoning appeal is occurring. An honest mistake about addressing papers or reaching the wrong room of town hall rather than the town clerk should not nullify an entire zoning appeal-nor should an evasive clerk.
However, Justice Singh raises a valid point that the Clerk’s knowledge should become an issue if there was unsuccessful or imperfect attempt to serve them. Unlike in Konover, where the papers were addressed to the Clerk but left at the wrong office, the record reflects that the appellants definitely did not address the appeal to the Clerk or otherwise notify the Clerk until after Day 20.
And indeed, the better practice, as the Appeals Court suggested in Konover, is to address and confirm service by certified mail and return receipt personally before the expiration of the date. Indeed, after hours efforts at service can backfire. Given this doctrinal duel and its public consequences, this case may well be a candidate for further appellate review by the Supreme Judicial Court. Indeed, a group involved with other litigation with the Hickeys has moved to intervene in the Appeals Court to seek further appellate review.
Joe has an appellate practice in Massachusetts and Connecticut and has previously taken on the Boston Zoning Board in the Appeals Court.