SANFORD FEMAN & Another v. BOARD OF APPEALS OF CONCORD & Another.

• Court: Massachusetts Appeals Court
• Decided: May 28, 2026
• Docket: 25-P-1282
• Status: Unpublished

Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

25-P-1282

SANFORD FEMAN & another1

vs.

BOARD OF APPEALS OF CONCORD & another.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiffs, Sanford Feman and Linda Chin, appeal from a

judgment in the Superior Court dismissing their action pursuant

to G. L. c. 40A, § 17, by which they sought judicial review of a

decision by the town of Concord's board of appeals (board)

granting a special permit to defendant Li-Jen T. Lin to convert

an existing detached garage into an accessory dwelling unit

(ADU). Lin applied for the special permit on May 22, 2024.

After a public hearing, the board approved Lin's application on

July 11, 2024, and filed the decision with the town of Concord's

1 Linda Chin.

2 Li-Jen T. Lin. clerk's office (town clerk) on September 26, 2024. The

plaintiffs own and reside at a property contiguous to that of

Lin, and on October 16, 2024, they filed a complaint for

judicial review in the Superior Court asserting that the

allowance of the ADU would unlawfully interfere with the use of

their easement appurtenant in violation of an order of the Land

Court in a different case. On October 18, 2024, the plaintiffs

delivered a document titled, "Notice of Action," with a copy of

their complaint attached, to the town clerk.

After Lin answered the complaint, the board moved to

dismiss the plaintiffs' action pursuant to Mass. R. Civ. P.

12 (b) (1) and (6), 365 Mass. 754 (1974), citing the plaintiffs'

failure to serve the town clerk with a copy of the complaint

within twenty days of the issuance of the board's decision as

required by G. L. c. 40A, § 17. In their opposition to the

motion, the plaintiffs contended that "it is possible to infer

that the Town Clerk . . . did have actual knowledge that an

appeal had been timely filed within the statutory twenty days."

In support of this argument, the plaintiffs pointed to an e-mail

message copied to the town clerk asking who could accept service

of process for the board, and an affidavit from Feman stating

that, prior to filing the complaint, he visited the offices of

the board, corresponded with town employees, and informed a

board clerk that the plaintiffs were appealing from the board's

2 decision. Following a hearing, a Superior Court judge allowed

the motion and dismissed the complaint for lack of subject

matter jurisdiction, concluding that none of the materials

submitted by the plaintiffs "demonstrate that anyone at the Town

of Concord Clerk's office had actual knowledge of Plaintiffs'

G. L. c. 40A lawsuit by October 16, 2024." The plaintiffs

appeal, and we affirm.

"We review de novo the allowance of a motion to dismiss for

lack of subject matter jurisdiction under rule 12 (b) (1)."

Allegaert v. Harbor View Hotel Owner LLC, 100 Mass. App. Ct.

483, 486 (2021), quoting 311 West Broadway LLC v. Board of

Appeal of Boston, 90 Mass. App. Ct. 68, 73 (2016). General Laws

c. 40A, § 17, provides that a person aggrieved by a decision of

a zoning board of appeals or a 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 with

the town clerk. To do so, "[n]otice 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 this notice provision is a "jurisdictional

prerequisite" for an action under G. L. c. 40A, § 17, and is

strictly enforced. Hickey v. Zoning Bd. of Appeals of Dennis,

93 Mass. App. Ct. 390, 392 (2018). See Bingham v. City Council

3 of Fitchburg, 52 Mass. App. Ct. 566, 569 (2001) ("Failures in

meeting the twenty-day deadline are not forgiven").

On appeal, the plaintiffs concede that they did not satisfy

the twenty-day notice requirement set forth in G. L. c. 40A,

§ 17, but argue that their action should nevertheless proceed

because the town clerk had actual knowledge of the complaint.

The requirement of formal notice has been relaxed in

circumstances where the town clerk received actual notice of the

filing within the required time. See Hickey, 93 Mass. App. Ct.

at 392-394; Konover Mgt. Corp. v. Planning Bd. of Auburn, 32

Mass. App. Ct. 319, 326-327 (1992). The "key element" is that

"within the mandatory twenty-day period the clerk is actually

notified that an appeal -- i.e., a complaint -- has in fact been

timely filed." Konover Mgt. Corp., supra at 324-325. Doing so

satisfies the purpose of the statutory notice requirement

because "interested third parties [can] be forewarned [by the

clerk] that the zoning status of the land is still in question."

Id. at 325, quoting Carr v. Board of Appeals of Saugus, 361

Mass. 361, 363 (1972).

Nothing in the record here shows that the town clerk was

actually notified by October 16, 2024, that the plaintiffs had

filed a complaint in the Superior Court. In particular, the

plaintiffs' inquiries and statements to the board and the town

regarding their intention to appeal did not provide actual

4 notice that a complaint had been filed. This conclusion is

supported by the affidavit of the town clerk, submitted with the

motion to dismiss, who stated that "[n]either my office nor I

received a copy of the Complaint or any other notice of the

Complaint on or before October 16, 2024." "Since it is the

state of the clerk's knowledge that controls," Hickey, 93 Mass.

App. Ct. at 394, the complaint was properly dismissed for lack

of jurisdiction.3

Judgment affirmed.

By the Court (Neyman, Hershfang & Toone, JJ.4),

Clerk

Entered: May 28, 2026.

3 Lin's request for attorney's fees and costs is denied.

4 The panelists are listed in order of seniority.