Massachusetts Appeals Court Excuses City’s Notice-by-Mail Fail

May 21, 2022

May 20th,  the Massachusetts Appeals Court decided Markham v. Pittsfield Cellular Telephone Company (pdf), holding that the 90-day appeal period under M.G.L. c. 40A, § 17 for zoning appeals alleging procedural defects is not tolled where a zoning board failed to give notice of a special permit hearing by mail, but did provide notice by publication and by posting at city hall.

Several residents of Pittsfield tried to challenge a special permit that the Pittsfield Zoning Board of Appeals granted to the defendant telephone company more than two years earlier. The plaintiffs claimed they lacked any notice of the special permit at the time it was granted or within 90 days thereafter. M.G.L. c. 40A, § 11 requires that notice be given to “parties in interest” such as the plaintiffs in three ways: 1) by publication in a newspaper, 2) by posting in city hall, and 3) by mail. The trial judge found that the zoning board complied with the first two methods and assumed, based on affidavits from the plaintiffs and other residents, that notice by mail was not provided. Nevertheless, the judge interpreted § 17 to mean that the plaintiffs were required to bring their appeal within the 90-day period the statute allows for appeals alleging procedural defects.

The Appeals Court affirmed. In considering whether the lack of notice by mail tolled the period for the plaintiffs to appeal the special permit decision, the court started, as is typical, with the statutory language. Relying on (1) the language requiring mailed notice to “be sent by mail, postage prepaid” – not by registered or certified mail as required in other parts of the statute, (2) the lack of language requiring receipt of said mailing, and (3) the disjunctive “or” in the phrase requiring appeals to be filed within 20 days “except with respect to such publication, mailing or posting and then only by a proceeding commenced within ninety days” (emphasis added), the court concluded that the Legislature intended to limit the appeal period to a maximum of 90 days in situations such as the one presented. This, the court determined, “balance[s] the importance of ensuring that interested persons are heard regarding applications for special permits with the need ‘to promote finality and to preclude attacks indefinitely on decisions which have already been tested in the hearing process.’” In response to the plaintiffs’ concern that this holding nullifies the notice-by-mail requirement, the court was careful to state that nothing in its decision “controls the result should a judge be faced with a deliberate choice by a board or its agent to forgo compliance with statutory notice requirements.”

This outcome is consistent with the language and intent of the statute. An applicant for zoning relief can be assured that, should a municipality – despite best efforts and good faith – err in sending notice by mail, so long as the other statutory notices are provided, the 90-day appeal period commences with the filing of the decision.

©2022 Pierce Atwood LLP. All rights reserved.
National Law Review, Volume XII, Number 141
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