Greeley v. Zoning Bd. of Appeals of Framingham

• Decision Date: 06 April 1966
• Citation: 350 Mass. 549,215 N.E.2d 791
• Parties: Joseph F. GREELEY et al. v. ZONING BOARD OF APPEALS OF FRAMINGHAM et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 791

215 N.E.2d 791

350 Mass. 549

Joseph F. GREELEY et al. v. ZONING BOARD OF APPEALS OF FRAMINGHAM et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued March 10, 1966.

Decided April 6, 1966.

Louis J. Ferrari, Boston, for interveners Edward W. Deschamps and others.

Edward Wolper, Framingham, for plaintiffs (Joseph H. Lewis, Town Counsel, for Inspector of Buildings of Framingham, with him).

Before WILKINS, C.J., and SPALDING, CUTTER, SPIEGEL, and REARDON, JJ.

SPIEGEL, Justice.

This is a bill in equity under G.L. c. 40A, § 21, to annul the decision of the zoning board of appeals of Framingham (board) rescinding a building permit issued to the plaintiffs. Several individuals owning properties near the premises in question intervened. The plaintiffs filed a 'Motion for Immediate Entry of Final Decree for Lakc of Jurisdiction of Zoning Board of Appeals.' The trial judge made 'Findings, Rulings and Order for Decree on Plea of Petitioners.' The interveners appeal from a final decree which stated in pertinent part 'That the decision of the Board of Appeals rescinding the issuance of the building permit on January 28, 1965 was not within the jurisdiction of the Board of Appeals of Framingham and is hereby annulled.' The evidence is reported.

The facts do not appear to be in dispute. On January 28, 1965, the building inspector of the town of Framingham issued a permit to build a foundation for a composting plant on property owned by the plaintiff Greeley. The interveners made a purported appeal under G.L. c. 40A, § 13, 'by handing such appeal to Robert Belmonte, counsel for the Framingham Zoning Board of Appeals on February 26, 1965.' The board 'caused publication to be made in the Framingham News on March 1 and March 8, 1965 giving notice that a hearing on this matter would be held at a certain room in the Town Hall of Framingham on March 15, 1965.' On March 5, a signed copy of the appeal was filed with the town clerk by the interveners. On March 9, the building inspector received notice of the appeal from the town clerk. On March 15 the board held a hearing at which attorneys for the plaintiffs and the building inspector appeared specially 'for the sole purpose of objecting to the jurisdiction of the * * * (b)oard.' On March 31 the board filed with the town clerk its decision rescinding the building permit. On April 13, the plaintiffs brought this bill. On April 20, a judge of the Superior Court allowed the plaintiffs' motion to strike from the record the copy of the board's decision affixed to the plaintiffs' bill and to substitute 'a true copy of decision of the Zoning Board of Appeals, attested by the Town Clerk.'

The interveners contend that the plaintiffs' bill is defective for failure to comply with G.L. c. 40A, § 21, which provides in part as follows: 'There shall be attached to the bill a copy of the decision appealed from, bearing the date of filing thereof, certified by the city or town clerk with whom the decision was filed.' However, such a certified copy was attached to the bill on a motion of the plaintiffs within the twenty day period for filing the bill. Notice of the bill was given to the members of the board subsequent to the attachment of the certified copy. The requirement of certification appears to be designed to show of record that the copy of the board's decision was a true one and that the appeal from it was timely. This requirement has been satisfied.

The interveners also contend that the motion of the plaintiffs 'for Immediate Entry of Final Decree' was 'a motion to dismiss their own bill' and 'could not have been treated as a demurrer.' The trial judge stated that the motion would be treated as a 'plea to jurisdiction.' However, the issue before the court raised by the motion was clear: Whether the appeal by the interveners was taken within the period provided by the statute so that the zoning board had authority to act. Whether the trial judge was technically correct in treating the plaintiffs' motion as a plea does not affect the correctness of the result. 'A correct decision will be sustained even though the ground stated for it may be unsound.' Weidman v. Weidman, 274 Mass. 118, 125, 174 N.E. 206, 208, 76 A.L.R. 1359; North Shore Corp. v. Selectmen of Topsfield, 322 Mass. 413, 416, 77 N.E.2d 774; Chem-Lac Prod. Inc. v. Gerome, 327 Mass. 394, 396, 99 N.E.2d 61; Loftus v. Lauf, 329 Mass. 374, 378, 108 N.E.2d 533; Weintraub v. L & F Realty Co. Inc., 331 Mass. 711, 713, 122 N.E.2d 379; Eastern Inv. & Dev. Corp. v. Franks, 339 Mass. 280, 288, 158 N.E.2d 881. The case had been reached for trial, and the sole contention pressed by the plaintiffs was that the board was without jurisdiction. The judge acted properly in hearing evidence on the issue in question.

The plaintiffs contend that the...