A Heads-Up Won't Cut It: Actual Notice Under Chapter 40A

Under G. L. c. 40A, § 17, a person aggrieved by the issuance of a special permit by a town zoning board may seek judicial review, if and only if the complaint is filed in court within twenty days after the decision has been filed with the municipal clerk, and if and only if the plaintiff, within those same 20 days, provides to the municipal clerk a notice of the filing of the complaint. Feman v. Board of Appeals of Concord presented the question of whether the town clerk’s actual knowledge that a plaintiff intended to file a complaint satisfied the the notice provisions of the statute.

The plaintiffs in Feman challenged a special permit to convert a detached garage into an accessory dwelling unit.

The decision had been filed with the town clerk on September 26, 2024. The plaintiffs filed their complaint in Superior Court on October 16, 2024, but did not deliver a copy to the town clerk until October 18, 2024, two days outside the statutory window. The board moved to dismiss for lack of subject matter jurisdiction due to the late service.

The plaintiffs argued the clerk had actual knowledge based on: (1) an email copied to the clerk asking who could accept service of process, and (2) an affidavit that one plaintiff had told a board clerk an appeal would be forthcoming. The trial court dismissed, and the Appeals Court affirmed.

The Appeals Court emphasized that compliance with the notice provision is a “jurisdictional prerequisite” for actions under G.L. c. 40A, § 17, and that the formal service requirement is relaxed only where the clerk is actually notified that a complaint has been timely filed. Mere inquiries about service logistics or statements indicating an intent to appeal do not constitute actual notice that a complaint has been filed.

Feman v. Board of Appeals of Concord once again demonstrates that the court requires strict compliance with the notice provisions of G.L. c. 40A, § 17.. The statute requires actual knowledge that a copy of the complaint has been filed, not merely notice of an intent to appeal. Since the requirement is jurisdictional, failure to comply with it is fatal to the appeal.