Opinion
18-P-1377
11-15-2019
Zdzislaw PECYNA & others v. TOWN OF DUDLEY & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiffs appeal from a judgment dismissing their action brought pursuant to G. L. c. 40A, § 17, by which they sought judicial review of a decision by the planning board of Dudley (board) granting a special permit to Cellco Partnership, doing business as Verizon Wireless (Verizon), to construct a cell tower. A Superior Court judge dismissed the complaint, reasoning that the plaintiffs' failure to provide timely notice of the action to the town clerk as required by G. L. c. 40A, § 17, deprived the Superior Court of jurisdiction. On appeal, the plaintiffs claim that it was error to dismiss the complaint because the town clerk had actual knowledge of the complaint. We affirm.
Background. We summarize the material facts, which are not in dispute. On June 7, 2017, Verizon applied for a special permit to install and operate a "personal wireless service facility" (cell tower) at 36 Hall Road in Dudley. After a public hearing, the board approved the application without opposition on August 9, 2017, and filed the decision with the town clerk on August 22, 2017.
Verizon is not a party to this action, but has filed an amicus brief with leave of this court.
On September 11, 2017, the plaintiffs filed a complaint for judicial review in the Superior Court, which asserted, among other things, that construction of the cell tower would "adversely affect the character and aesthetics of the neighborhood." There is no evidence in the record that notice of the complaint was ever filed with the town clerk. Consequently, on September 18, 2017, the town clerk issued a certificate of no appeal, which Verizon recorded at the registry of deeds. Thereafter, Verizon hired an engineering firm, applied for a building permit, paid for and received the building permit, and purchased building materials. Construction began on May 8, 2018, and the cell tower was erected on July 10, 2018. On July 13, 2018, the plaintiffs filed an ex parte emergency motion seeking to enjoin Verizon from continuing construction of the cell tower and an emergency motion to add Verizon as a necessary party. In its opposition, Verizon argued that the complaint for judicial review should be dismissed for lack of jurisdiction because the plaintiffs failed to provide the required notice of the action to the town clerk. After a hearing, a Superior Court judge denied the motions and dismissed the complaint concluding that because "the town clerk never received notice that a complaint actually had been filed during the twenty-day period, this court is without jurisdiction to hear plaintiffs' appeal."
At oral argument, counsel for the plaintiffs asserted that notice of the complaint was filed with the town clerk one day after the complaint was filed in the Superior Court. In response to our request, plaintiffs' counsel has clarified that the record contains no evidence that the complaint, or notice of the complaint, was stamped "received" by the town clerk. However, he has submitted a sheriff's invoice stating that a copy of the complaint was served at the "Dudley Town Hall" on September 12, 2017. Even assuming that this invoice was part of the record before the Superior Court judge, it does not establish service on the town clerk.
Discussion. General Laws c. 40A, § 17, provides that a person aggrieved by a decision of any special permit granting authority may seek judicial review in the Superior Court by bringing an action within twenty days after the decision has been filed in the office of the 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." G. L. c. 40A, § 17. Compliance with the notice requirement is a jurisdictional prerequisite to the prosecution of an appeal under G. L. c. 40A, § 17. See Shaughnessy v. Board of Appeals of Lexington, 357 Mass. 9, 13 (1970) (notice requirement jurisdictional under former G. L. c. 40A, § 21, predecessor to current § 17 ). As a general rule, this notice requirement has been strictly enforced. Calnan v. Planning Bd. of Lynn, 63 Mass. App. Ct. 384, 390 (2005). However, the requirement of formal notice to the town clerk has been relaxed in circumstances where the evidence established that the town clerk had actual notice of the complaint having been filed in court within the required time, even though written notice was not physically filed in the office of the town clerk. See Hickey v. Zoning Bd. of Appeals of Dennis, 93 Mass. App. Ct. 390, 394 (2018) ; Konover Mgt. Corp. v. Planning Bd. of Auburn, 32 Mass. App. Ct. 319, 326-327 (1992).
Bearing these principles in mind, we turn to the facts before the judge. It is undisputed that the plaintiffs did not file with the town clerk a notice of the action commenced in the Superior Court within the twenty-day statutory period. Because no notice was filed, the town clerk issued a certificate of no appeal which Verizon, a third party, relied upon in expending $700,000 to construct a cell tower. Nearly ten months after the complaint for judicial review was filed in the Superior Court, the plaintiffs filed emergency motions to add Verizon as a necessary party and enjoin further construction of the cell tower. According to the affidavit submitted by the plaintiffs in connection with the motion to enjoin, "[t]he town knew of our intention to file the lawsuit. We tried to submit papers [to the town] on multiple occasions but were told we had to go to the court."
"The purpose of the notice provision is to give interested third persons at least constructive notice of the appeal. Strict 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 limited." Costello v. Board of Appeals of Lexington, 3 Mass. App. Ct. 441, 443 (1975). This purpose cannot be fulfilled until the town clerk has notice that an action has, in fact, been filed. Even assuming that the plaintiffs attempted to file their appeal directly with the town clerk's office, we agree with Verizon that providing notice to the town that an appeal may be filed does not satisfy the statutory requirement. Accordingly, we discern no error in the judge's dismissal for lack of jurisdiction.
In light of our conclusion that the complaint was properly dismissed for lack of jurisdiction, we need not address the plaintiffs' claim that the judge erred in denying the motion to add Verizon as a necessary party.
Finally, the plaintiffs' claim that the judge erred by "not providing [p]laintiffs with an opportunity for limited discovery on this matter" is raised for the first time on appeal and is, therefore, waived. See Barkan v. Zoning Bd. of Appeals of Truro, 95 Mass. App. Ct. 378, 389 (2019).
To the extent that the plaintiffs argue that it was error to dismiss the case without an evidentiary hearing, we see no abuse of discretion, particularly where there was no representation that the plaintiffs wished to present evidence that exceeded the content of the affidavit already before the judge. See Cepeda v. Kass, 62 Mass. App. Ct. 732, 739-740 (2004).
Judgment affirmed.