When Imperfect Notice Is Still Adequate Notice
The Massachusetts Appeals Court recently held that a municipality’s failure to mail notices of a public hearing to abutters did not violate the notice requirements of the Massachusetts Zoning Act. Specifically, the 90-day period within which an abutter must file a claim alleging defective notice of a hearing is not tolled or extended where there is no “complete failure” of notice. Markham v. Pittsfield Cellular Telephone Co., 101 Mass. App. Ct. 82 (2022). Here, there was no “complete failure” of notice since the City of Pittsfield did provide notice by newspaper publication and posting at City Hall. Therefore, the Court held that the abutters’ 90-day limit to file claims was not tolled.
Municipalities must provide notice of public hearings in three forms: posting a notice at the City or Town Hall, publishing notice in a newspaper, and, concerning notifying a “party in interest,” such as the Plaintiff-abutters in Markham, “notice must be sent by mail, postage prepaid.” See, M.G.L. ch. 40A, § 11. The Plaintiffs in Markham did not receive the mailed notice and did not know that the City had published notice in the local newspaper and posted it at City Hall. Unknown to the Plaintiffs, the City granted a special permit to construct a cell tower in November 2017. More than two years later, the Plaintiffs sued shortly after they saw construction vehicles traveling through their neighborhood.
The Plaintiffs brought claims under M.G.L ch. 40A, § 17, which provides any aggrieved party with twenty days to bring a challenge to a special permit once the written decision to grant the permit is filed with the municipality. The Zoning Act extends this statute of limitations to 90 days for plaintiffs bringing claims based on “any defect of…notice….” The Plaintiffs argued that the Superior Court should have tolled the 90-day limitation until the day Plaintiffs received actual notice. The Superior Court rejected this argument and granted summary judgment in favor of the City of Pittsfield.
The Court explained that chapter 40A, § 11 does not require actual notice. It only requires that the mailed notice “be sent by mail, postage prepaid,” and “did not require proof that the notice was received by any abutter.” If the Legislature had wanted to require actual notice to abutters, it would have required notice by registered or certified mail, rather than simple prepaid postage. Moreover, in Markham, although the City’s notice of the public hearing was not perfect, the Court deemed it adequate where two of the three statutory forms of notice were provided. In this circumstance, where there was no “complete absence of notice,” the Plaintiffs’ lack of receipt of the mailed notice did not justify extending the limitations period.
Even though the Court held in the municipality’s favor in Markham, municipalities that deliberately flout their duties are unlikely to receive the same treatment. For their part, both project applicants and abutters should check the local newspapers to confirm newspaper notice has been provided. Markham makes it more difficult to justify missing a statutory appeal deadline when a municipality provides adequate, though imperfect, notice.