Board of Appeals of Rockport v. DeCarolis

• Decision Date: 01 April 1992
• Docket Number: No. 90-P-1436,90-P-1436
• Parties: BOARD OF APPEALS OF ROCKPORT v. James V. DeCAROLIS, et al. 1
• Court: Appeals Court of Massachusetts

Page 1378

588 N.E.2d 1378

32 Mass.App.Ct. 348

BOARD OF APPEALS OF ROCKPORT v. James V. DeCAROLIS, et al. ¹

No. 90-P-1436.

Appeals Court of Massachusetts,

Essex.

Argued Jan. 17, 1992.

Decided April 1, 1992.

Brian P. Cassidy, Town Counsel, for plaintiff.

Anthony E. Penski, Asst. Atty. Gen., for State Building Code Appeals Bd.

Before KASS, PORADA and LAURENCE, JJ.

PORADA, Justice.

The board of appeals of Rockport (board) filed in the Superior Court an amended, four-count complaint against the defendant DeCarolis and the State Building Code Appeals Board (agency). In counts 1-3 of the complaint, the board sought judicial review under the State Administrative Procedure Act (G.L. c. 30A, § 14) of a decision of the agency ordering the building inspector of Rockport to issue a certificate of use and occupancy to DeCarolis for the construction of a duplex house on Squam Road in Rockport and, in count 4, a declaratory judgment to determine the agency's authority to render this decision. The defendants filed a motion to dismiss the amended complaint. A Superior Court judge dismissed counts 1-3 on the ground that the board had failed to perfect a timely appeal and count 4 on the ground that the board could not contest the agency's decision. We affirm the judgment dismissing counts 1-3 and reverse the judgment dismissing count 4.

The principal issues presented by the board's appeal are: (1) did the notice of appeal fail to comply with the specificity requirements of Mass.R.A.P. 3(c), as amended, 378 Mass. 927 (1979), in designating the appellant as "Loyd M. Starrett et als." ² ; (2) did the expiration of the thirty-day appeal period under G.L. c. 30A, § 14(1), bar a challenge to the agency's authority to issue the decision; and (3) was the board precluded from seeking a declaratory judgment relating to the agency's decision under G.L. c. 231A when the appeal period for judicial review had expired under G.L. c. 30A, § 14(1). We hold that the notice of appeal was sufficient to meet the specificity requirements of rule 3(c) and that the expiration of the appeal period under G.L. c. 30A, § 14(1), barred any challenge to the agency's decision under the State Administrative Procedure Act but did not bar a determination of the agency's jurisdiction in a proceeding for declaratory relief under G.L. c. 231A.

We summarize the pertinent facts. The building inspector of Rockport issued a building permit to DeCarolis to construct a multistory duplex on Squam Road in Rockport. A resident appealed the building inspector's decision to the board. The board found that the building exceeded two and one-half stories, the maximum building height permitted by the Rockport zoning by-law, and ruled that the building permit was void. DeCarolis appealed the board's decision to the Superior Court. While the zoning appeal was pending, DeCarolis requested a temporary occupancy permit from the building inspector, who refused to issue it because of the board's decision and the pending appeal of that decision. DeCarolis appealed the building inspector's decision to the agency. The agency held a hearing on DeCarolis's appeal. The record before us is unclear, but the agency apparently questioned whether it had jurisdiction to rule on DeCarolis's appeal because it appeared to be a review of a zoning decision. As a result, DeCarolis requested a rehearing, which was granted, in order to convince the agency that the appeal was properly before it. Neither the building inspector nor any member of the board attended this second hearing.

DeCarolis represented to the agency that he had complied with all building and zoning requirements at the time of the construction of his building and that he was entitled to a certificate of use and occupancy. The agency found in favor of DeCarolis and ordered the building inspector to issue a certificate of use and occupancy provided that no building code violations were present when the building inspector conducted his final inspection of the premises. The agency's decision was received by the building inspector on November 22, 1989, and the board filed its appeal from that decision in the Superior Court on December 27, 1989.

1. Notice of appeal. The agency claims that the only appellant in this case is Loyd M. Starrett, the chairperson of the board, and that, as one member of a public board, he has no standing to appeal. State Bd. of Retirement v. Contributory Retirement Appeal Bd., 342 Mass. 58, 59, 172 N.E.2d 234 (1961). See also Carr v. Board of Appeals of Medford, 334 Mass. 77, 79-80, 134 N.E.2d 10 (1956); Harvard Square Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass.App.Ct. 491, 496, 540 N.E.2d 182 (1989). The agency bases its argument on the board's notice of appeal. The caption is styled: "Loyd M. Starrett et als." The body of the notice reads as follows:

"Notice is hereby give[n] that Loyd M. Starrett, et als., the above-named Plaintiffs hereby appeals to the Court of Appeals from the Order of Ronan, J., dismissing all counts of the Complaint entered in this action on October 10, 1990.

LOYD M. STARRETT, et als.

as they are member[s] of the

ROCKPORT ZONING BOARD OF APPEALS

by their attorney

________________

Brian P. Cassidy

Town Counsel"

Massachusetts R.A.P. 3(c) requires that the notice "specify the party or parties taking the appeal." In Cummings v. City Council of Gloucester, 28 Mass.App.Ct. 345, 349, 551 N.E.2d 46 (1990), we held that we would apply rule 3(c) consistently with the interpretation given Fed.R.App.P. 3(c) by the Federal courts. Based on Torres v. Oakland Scavenger Co., 487 U.S. 312, 314, 108 S.Ct. 2405, 2407, 101 L.Ed.2d 285 (1988), we stated that the term "et al." does not meet the specificity requirement of rule 3(c) and that unless an appellant is named in the notice of appeal, he is not a party to the appeal. Cummings v. City Council of Gloucester, 28 Mass.App.Ct. at 347-349, 551 N.E.2d 46. In Torres, the Supreme Court stated that "[t]he specificity requirement of Rule 3(c) is met only by some designation that gives fair notice of the specific individual or entity seeking to appeal." Torres v. Oakland Scavenger Co., 487 U.S. at 318, 108 S.Ct. at 2409.

Here, while the caption of the notice of appeal is arguably deficient, it is apparent on the face of the notice that the entity seeking to appeal is the board. The individual members of a public board need not be named as parties to a suit brought on behalf of the board. School Comm. of Boston v. Reilly, 362 Mass. 334, 339-340, 285 N.E.2d 795 (1972). Ciszewski v. Industrial Acc. Bd., 367 Mass. 135, 139-140 (1975). Under these circumstances, we conclude that the notice of appeal was sufficiently precise to comply with rule 3(c). See Association of American Medical Colleges v. Cuomo, 913 F.2d 55, 56 (2d Cir.1990). Cf. Mariani-Giron v. Acevedo Ruiz, 877 F.2d 1114, 1115-1116 (1st Cir.1989); Cruz v. Melendez, 902 F.2d 232, 235-236 (3d Cir.1990); Laidley v. McClain, 914 F.2d 1386, 1388-1390 (10th Cir.1990); Pride v. Venango River Corp., 916 F.2d 1250, 1251-1253 (7th Cir.1990); United States v. Schneider, 926 F.2d 777, 778-779 (8th Cir.1991); Michigan Carpenters Council Health and Welfare Fund v. C.J. Rogers, Inc., 933 F.2d 376, 379-380 (6th Cir.1991); Resolution Trust Corp. v. Sonny's Old Land Corp., 937 F.2d 128, 129 (5th Cir.1991).

2. Appeal under G.L. c. 30A, § 14. The board contends that count 1 ³ should not have been dismissed because it was based on the agency's lack of subject matter jurisdiction. An agency's authority to act or its jurisdiction over a matter may properly be raised by judicial review of the agency's action. G.L. c. 30A, § 14(7)(b). An action under G.L. c. 30A, § 14, must be brought within thirty days after receipt of the final decision of the agency. G.L. c. 30A, § 14(1). Here, it is not disputed that the board failed to appeal within the required thirty days. Since the thirty-day limitation for the filing of judicial review is a jurisdictional requirement, Flynn v. Contributory Retirement Appeal Bd., 17 Mass.App.Ct. 668, 669, 461 N.E.2d 1225 (1984); Wolbach v. Beckett, 20 Mass.App.Ct. 302, 308, 480 N.E.2d 49 (1985), the judge properly dismissed count 1.

3. Declaratory judgment. The board contends that, even though it did not pursue a timely appeal under G.L. c. 30A, § 14, it may properly seek declaratory relief under G.L. c. 231A, § 2, because it is challenging the agency's lack of jurisdiction over the subject matter. In the absence of special circumstances, however, declaratory relief cannot be used to circumvent a period prescribed by statute for obtaining judicial review. School Comm. of Franklin v. Commissioner of Educ., 395 Mass. 800, 807-808, 482 N.E.2d 796 (1985). New...