Hickey v. Zoning Board of Appeals of Dennis

SINGH, J. (dissenting).

It is undisputed that the plaintiffs failed to give timely "[n]otice of the action with a copy of the complaint" to the town clerk as required by G. L. c. 40A, § 17. Nonetheless, they were able to depose the town clerk, the assistant town clerk and the town planner in an effort to establish that the town clerk had actual knowledge of the filing of their complaint. I believe this inquiry into the "actual knowledge" of the clerk removes the burden from where it properly should be placed, squarely on the shoulders of the plaintiffs. Where a party has failed in its…