Carr v. Board of Appeals of Saugus

• Decision Date: 07 March 1972
• Parties: Charles C. CARR et al. v. BOARD OF APPEALS OF SAUGUS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 199

280 N.E.2d 199

361 Mass. 361

Charles C. CARR et al. v. BOARD OF APPEALS OF SAUGUS et al.

Supreme Judicial Court of Massachusetts, Essex.

Argued Feb. 9, 1972.

Decided March 7, 1972.

Robert A. Greeley, Boston, for plaintiffs.

Richard A. Rogalski, Saugus, for Robert V. Prezioso.

Bradbury Gilbert, Boston, for Board of Appeals of Saugus.

Before CUTTER, SPIEGEL, REARDON, QUIRICO, and BRAUCHER, JJ.

SPIEGEL, Justice.

The plaintiffs sought review in the Superior Court under G.L. c. 40A, § 21, of a decision by the defendant Saugus board of appeals (board) granting a variance to the defendant Robert V. Prezioso. The variance was granted on May 5, 1970, and the board's decision was filed in the office of the town clerk on May 18, 1970. The plaintiffs' bill in equity appealing this decision was filed in the Superior Court on June 4, 1970. On the same day the plaintiffs sent to the town clerk a written notice of the appeal but did not include a copy of the bill. This notice was received by the town clerk on Monday, June 8, 1970. ¹ On June 18, 1970, a second notice of appeal was sent to the town clerk along with a copy of the bill in equity. The judge below sustained the defendants' pleas in bar, ruling that 'sending a copy of the bill in equity to the town clerk within the twenty day period prescribed by G.L. Ch. 40A, Sec. 21 . . . (was) a jurisdictional requirement.' The plaintiffs appealed from the interlocutory decree sustaining the pleas in bar, and from the final decree dismissing the bill.

We have recently dealt with other jurisdictional aspects of this statute and have indicated our reluctance to construe strictly its provisions when to do so would be tantamount to attributing to the Legislature an intent 'to create a series of procedural barriers reminiscent of an earlier age of the law.' McLaughlin v. Rockland Zoning Bd. of Appeals, 351 Mass. 678, 682, 223 N.E.2d 521, 524; Shaughnessy v. Board of Appeals of Lexington, 357 Mass. 9, 13, 255 N.E.2d 367. The portion of G.L. c. 40A, § 21, here involved provides that: 'Written notice of . . . (the) appeal together with a copy of the bill in equity shall be given to . . . (the) city or town clerk within . . . (the) twenty day appeal period.' The purpose of this is to give interested third persons at least constructive notice of the appeal. McLaughlin v. Rockland Zoning Bd. of Appeals, supra, 351 Mass. at 680, 223 N.E.2d 521; Carey v. Planning Bd. of Revere, 335 Mass. 740, 745, 139 N.E.2d 920. In the McLaughlin case, we faced the situation where the plaintiff had filed with the town clerk a copy of the bill in equity filed that same day in the Superior Court, but had failed to accompany it with the written notice. We concluded that the purpose of the statute was adequately served by filing a copy of the bill because this, in effect, constituted an implied representation that the...