Chapter 40A

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

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Today the 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