Halko v. Board of Appeals of Billerica

• Decision Date: 01 July 1965
• Citation: 349 Mass. 465,209 N.E.2d 323
• Parties: Andrew HALKO et al. v. BOARD OF APPEALS OF BILLERICA et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 323

209 N.E.2d 323

349 Mass. 465

Andrew HALKO et al. v. BOARD OF APPEALS OF BILLERICA et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued May 4, 1965.

Decided July 1, 1965.

Steven J. Cohen, Boston (Edward J. Barshak, Boston, with him), for plaintiffs.

Warren W. Allgrove, Lowell, for defendant Nuttings Lake Cafe, Inc., and another.

Before WILKINS, C. J., and WHITTEMORE, CUTTER, KIRK and SPIEGEL, JJ.

WHITTEMORE, Justice.

This appeal to the Superior Court is by neighboring landowners claiming to be aggrieved by a decision of the board of appeals of the town of Billerica of June 21, 1960. That decision purported to grant a variance and other relief. The case is here on reservation and report. See G.L. c. 214, § 31. The issues are presented on the pleadings and on a statement of agreed facts that incorporates exhibits.

1. The plea in abatement (treated as a demurrer to raise a question of jurisdiction under G.L. c. 40A, § 21, as amended by St.1960, c. 365, Maltzman v. Hertz, 336 Mass. 704, 705, 147 N.E.2d 767) must be overruled.

We pass without intimation the unargued issue whether St.1960, c. 365, enacted May 3, 1960, relates to the powers of courts so that it took effect on the thirtieth day after enactment. See G.L. c. 4, § 1; art. 48 of the Amendments to the Constitution, The Referendum, I, III, § 2; Commonwealth v. Sacco, 255 Mass. 369, 410-411, 151 N.E. 839. Compare Coyle v. Swanson, 345 Mass. 126, 127, 185 N.E.2d 741. The issue raised by the plea has been fully argued on the assumption, which we accept for this case, that the amending statute was in effect when the bill of complaint was filed on July 11, 1960.

General Laws c. 40A, § 21, as amended by St.1960, c. 365, provides, inter alia, that an appeal from a decision of a board of appeals is to be taken by a bill in equity filed 'within twenty days after the decision has been filed in the office of the * * * town clerk. * * * [and that there] shall be attached to the bill a copy of the decision appealed from, bearing the date of the filing thereof, certified by the * * * town clerk with whom the decision was filed.'

There was attached to the bill of complaint as filed a copy of the decision entitled 'copy as filed in office of the Town Clerk' and attested by the town clerk as 'A true copy.' The date of filing was not stated. The decision, however, recites that the board voted on June 21, 1960, to grant the application, and, above the signatures of the board, contains these words: 'Date of decision June 21, 1960.' Hence the certification of the town clerk attached to a bill filed on July 11, told of the filing of the decision with her on or before that date. It thus informed all concerned that the filing of the bill was timely, it having been on the twentieth day after June 21, the date of decision, and thus before the expiration of twenty days after the intervening event, the filing with the town clerk.

The omission of the date from the clerk's certificate did not deprive the Superior Court of jurisdiction. That depended upon the timely filing of the bill of complaint within the twenty day period and the giving of notice to the town clerk of that filing so as to be received within the twenty day period. Del Grosso v. Board of Appeal of Revere, 330 Mass. 29, 32, 110 N.E.2d 836; Lincoln v. Board of Appeals of Framingham, 346 Mass. 418, 193 N.E.2d 590. There is no contention that notice to the clerk of the filing of the bill of complaint in the Superior Court was not timely. The provision for the certification of the date of the filing of the decision with the town clerk appears designed to show of record that the appeal was within the statutory period. ¹

The failure to file with the bill the addresses of the defendants was, likewise, not a jurisdictional defect. This is part of the statutory scheme for giving prompt notice by delivery or certified mail. ² That the notice was sent to the correct addresses was shown of record by the inclusion of the addresses in the affidavit, duly filed within the prescribed twenty-one days. The critical date is the expiration of that period, for the statute expressly provides for dismissal if 'no such affidavit is filed within such time.'

2. The defendant Edward F. McNulty is the president, treasurer and principal stockholder of the defendant Nuttings Lake Cafe, Inc. (Nuttings). For some time prior to 1959 Nuttings had owned a parcel of land of about 3,990 square feet, with a main building and an accessory building thereon, lying between Nuttings Lake and Middlesex Turnpike near its intersection with Lake Street, in a neighborhood business zone. Nuttings operated a cafe in the main building under a license for the sale of all alcoholic beverages. The structure was nonconforming to the zoning by-law both as to use and yard and area requirements. On January 24, 1959, a fire substantially damaged the building. Nuttings thereafter, in several separate proceedings, sought permission from the board of appeals to rebuild. ³ The board on May 19, 1959, rendered a decision granting such permission. Seven residents appealed to the Superior Court as aggrieved persons. G.L. c. 40A, § 21. Five of those appellants are plaintiffs in the appeal now before us. On August 18, 1959, findings of fact and an order for decree were entered in that case. The judge found that an earlier application for a special permit had been denied by the board on February 26, 1959. He ruled that G.L. c. 40A, § 20, ⁴ had been duly accepted by the town and was in full force and effect when the February, 1959 application was made. He found that Nuttings' proposed plans were the same in each application and ruled that the decision of May 19, 1959, was invalid and should be annulled. He found that the cafe was damaged by fire to more than sixty-five per cent of its reproduction cost.

On November 24, 1959, a final decree was entered annulling the decision of the board of May 19, 1959. This decree includes, over the assenting signature of the attorney for McNulty and Nuttings, the recited that 'the defendants, Edward F. McNulty and Nuttings Lake Cafe, Inc., stipulate that they will neither rebuild nor remodel a cafe building on land of the respondent corporation on Middlesex Turnpike, Billerica.' ⁵

At some time, apparently on or before November 19, 1959, Nuttings petitioned for an amendment to the zoning by-law to place a parcel containing approximately 15,536 square feet inclusive of the locus in a general business district. The planning board's notice on the petition was apparently published on November 19 and December 3. The hearing was advertised for December 17, 1959. The board on March 12, 1960, recommended to the impending town meeting that the amendment be adopted. The board's report recited that 'The petitioner says all he wants to do is rebuild his business that was burned down. * * * The Board feels it should be zoned to General Business to permit the continuance of a long established business.'

The town meeting adopted the proposed amendment at an adjourned session on April 5, 1960. Nuttings, in April, 1960, applied for a permit to build on the locus. The building inspector on April 20, 1960, denied the application because the lot was too small and the proposed building did not allow for yards as specified for a general business district and covered an area greater than permitted by the by-law.

Nuttings appealed to the board of appeals from the refusal of a permit and also sought a variance and a permit 'for a specific use' that was subject to the board's approval.

The board's decision of June 21, 1960 granted the relief requested and the plaintiff appealed to the Superior Court in the proceeding now before us. Following the board's decision 'the respondents [McNulty and Nuttings] had the building which now contains the cafe constructed.'

The amendment of the zoning by-law, adopted April 5, 1960, was valid. The article in the warrant specified 'the whole or any part of land owned by Nuttings * * * located on Middlesex Turnpike Road and Lake Street, bounded and described as follows: Beginning on the southerly side of Lake Street, at its intersection with Middlesex Turnpike Road, thence running southerly by the easterly side of said road to Nuttings Lake, thence running easterly by said lake, 66 feet, thence turning and running northerly by Lot 203 on Nuttings Lake Park Plan, Plan B, 129 feet to Lake Street, thence turning and running westerly by the southerly side of said Lake Street, 149 feet to the point of beginning. Containing approximately 15,536 square feet.' The area described by metes, bounds and square footage included the land of another owner. We think the failure to name the other owner did not make the proposal invalid for uncertainty. The metes and bounds accurately described the parcel and plainly indicated the parcel bounded by Lake Street, Middlesex Turnpike Road, the Lake and another lot. See Town of Burlington v. Dunn, 318 Mass. 216, 219, 61 N.E.2d 243, 168 A.L.R. 1181, cert. den. sub nom. Dunn v. Town of Burlington, 326 U.S. 739, 66 S.Ct. 51, 90 L.Ed. 441. The vote was to rezone as a general business district 'the whole or any part of land bounded and described in Article 107 of the Warrant.' This is to be construed as rezoning the whole and all parts of the parcel described. Caires v. Building Commr. of Hingham, 323 Mass. 589, 597-598, 83 N.E.2d 550.

The record does not show that this was spot zoning. The triangle rezoned lay between two public ways. The opposite triangle, formed by the intersection of Middlesex Turnpike and Water Street (a continuation of Lake Street), was zoned for general business. Furthermore, the same warrant contained a proposal to rezone as a general business area the parcel bounded by Middlesex Turnpike,...