Del Grosso v. Board of Appeal of Revere

• Decision Date: 27 February 1953
• Citation: 330 Mass. 29,110 N.E.2d 836
• Parties: DEL GROSSO et al. v. BOARD OF APPEAL OF REVERE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 836

110 N.E.2d 836

330 Mass. 29

DEL GROSSO et al. v. BOARD OF APPEAL OF REVERE et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Feb. 2, 1953.

Decided Feb. 27, 1953.

Samuel Leader, Chelsea, for plaintiff Del Grosso.

Arthur Brogna, Boston, for defendant Cutillo.

Before QUA, C. J., and RONAN, WILKINS, SPALDING and WILLIAMS, JJ.

RONAN, Justice.

This is a suit in equity by way of appeal under G.L. (Ter.Ed.) c. 40, § 30, as appearing in St.1933, c. 269, § 1, as amended, by persons alleging that they are owners of properties abutting a certain parcel of land and that they are aggrieved by a decision of the board of appeal of Revere granting the defendant Cutillo a variance in the use of the land so as to enable him to use it for a funeral home.

It appears from the record that the plaintiffs attended a public hearing of the board of appeal on January 28, 1952, upon the application of Cutillo for a variance of the zoning ordinance and the board took the matter under advisement; that the board filed its decision with the city clerk on March 10, 1952, granting the variance, but that no notice of the decision was mailed to the plaintiffs; that there was a controversy between the members of the board as to whether the decision was unanimous; that these matters were not brought to the attention of the plaintiffs until July 11 or 12, 1952; that Cutillo on June 4, 1952, filed a petition for a writ of mandamus to compel the building inspector to grant a permit; and that on July 9, 1952, the Superior Court found that the variance of the zoning law was granted in conformity with said § 30, and that all members of the board concurred in the decision. The plaintiffs allege that notices of the mandamus proceeding were not given to them and that they were not parties thereto, and that they learned of the decision in that proceeding on July 11 or 12, 1952. This present appeal was filed on July 24, 1952. The members of the board filed no pleading, but Cutillo filed a motion to dismiss on the ground that the appeal was not filed within fifteen days of the filing of the decision of the board with the city clerk. This motion was allowed. A decree followed dismissing the appeal, from which the plaintiff Del Grosso appealed.

The statute, said § 30, relative to the powers and duties of the board of appeal provides that 'The Board shall cause to be made a detailed record of its proceedings, showing the vote of each member upon each question, or, if absent or failing to vote, indicating such fact, and setting forth clearly the reason or reasons for its decisions, and of its other official actions, copies of all of which shall be immediately filed in the office of the city or town clerk and shall be a public record, and notice of decisions shall be mailed forthwith to parties in interest as hereinafter designated.' The statute further provides that on the filing of a petition for a variance the board shall give notice of the holding of the hearing by publication 'and also send notice by mail, postage prepaid, to the petitioner and to the owners of all property deemed by the board to be affected thereby, as they appear on the most recent local tax list * * *.'

That part of this section giving the remedy to one aggrieved by a decision of a board of appeal reads as follows: 'Any person aggrieved by a decision of the board of appeals, whether or not previously a party to the proceeding, or any municipal officer or board, may appeal to the superior court sitting in equity for the county in which the land concerned is situated; provided, that such appeal is filed in said court within fifteen days after such decision is recorded.'

The question is whether there was error in dismissing the appeal which was admittedly filed more than fifteen days after the filing of the decision of the board although the board did not mail notices forthwith of its decision to the plaintiffs who were owners of properties abutting the premises for which a use varying from that permitted in the district for which it was zoned was granted by the board.

The motion to dismiss was not in this case a proper pleading, E. S. Parks Shellac Co. v. Jones, 265 Mass. 108, 110, 163 N.E. 883; Tyler v. Boot & Shoe Workers Union, 285 Mass. 54, 55, 188 N.E. 509; Frost v. Kendall, 320 Mass. 623, 624, 70 N.E.2d 521; but we have frequently decided that a pleading should be considered by its substance rather than its form, and have regarded such a motion as a demurrer or plea in accordance with the nature of the defect or defence to which the pleading was obviously directed. Beaman-Marvell Co. v. Marvell, 305 Mass. 246, 247, 25 N.E.2d 473; Stoskus v. Stoskus, 315 Mass. 12, 16, 51 N.E.2d 967. We treat the motion as the setting up of matter appropriate for a plea. Magee v. Flynn, 245 Mass. 128, 139 N.E. 842; E. S. Parks Shellac Co. v. Jones, 265 Mass. 108, 110, 163 N.E. 883; Frost v. Kendall, 320 Mass. 623, 624, 70 N.E.2d 521. ¹

The remedy invoked by the plaintiffs is one created by statute which describes those who are entitled to its benefits, the court in which it may be brought, the nature of the proceeding, and the time in which it must be commenced. In terms too plain for argument, it is not available unless the 'appeal is filed in said court within fifteen days after such decision is recorded' in the office of the city clerk. The language is mandatory and does not easily permit any extension of time for any reason. Time is not merely a procedural limitation but is an essential part of the remedy. The governing principle was stated in these words in Cheney v. Assessors of Town of Dover, 205 Mass. 501, 503, 91 N.E. 1005, 1006, 'when a remedy has been created by statute and the time within which it must be...