Iverson v. Board of Appeals of Dedham

• Decision Date: 19 July 1982
• Parties: Mark IVERSON et al. v. BOARD OF APPEALS OF DEDHAM.
• Court: Appeals Court of Massachusetts

Page 572

437 N.E.2d 572

14 Mass.App.Ct. 951

Mark IVERSON et al. v. BOARD OF APPEALS OF DEDHAM.

Appeals Court of Massachusetts,

Norfolk.

Argued March 15, 1982.

Decided July 19, 1982.

Paul D. Maggioni, Town Counsel, Dedham, for defendant.

Justin C. Barton, Norwood, for plaintiffs.

Before ARMSTRONG, PERRETTA and KASS, JJ.

RESCRIPT.

The plaintiffs appealed under G.L. c. 40A, § 17, from the decision of the defendant board, and the judge found that the lots upon which they wished to build single-family residences were not situated within the flood plain district established by the zoning by-law in effect at the time of the plaintiffs' applications for building permits, or in the alternative, special permits. He entered a judgment annulling the board's decision and ordering the building inspector to issue the requested permits. The board appeals, alleging errors which can be resolved only by scrutiny of the documentary and testimonial evidence presented in the trial court but not brought before us.

In preparing its appendix, the board failed to comply with Mass.R.A.P. 8(b)(1) and 18(a) and (b), as amended, 378 Mass. 932-933, 940-941 (1979). See Kunen v. First Agricultural Natl. Bank, 6 Mass.App.Ct. 684, 685-689, 382 N.E.2d 750 (1978); Tammaro v. Colarusso, 11 Mass.App. ---, --- - ---, Mass.App.Ct.Adv.Sh. (1980) 2191, 2191-2192, 413 N.E.2d 1118. Cf. Wingate v. Emery Air Freight Corp., 385 Mass. 402, 405 n.5, 432 N.E.2d 474 (1982). Recognizing that a failure to comply with the procedural rules jeopardized the board's appeal, the plaintiffs chose not to exercise their right of counter-designation under rule 18(b), lest they inadvertently put before us evidence which might be material to the board's claims and expose the judgment in their favor to risk. Compare id.; Kunen, supra at 689 n.10, 382 N.E.2d 750.

At oral argument, we brought to the attention of counsel to the board the fact that not one of the exhibits referred to in the board's brief, including the zoning by-law, was before us. When he indicated that he would remedy the defect immediately after oral argument by availing himself of Mass.R.A.P. 9(b), as amended, 378 Mass. 935 (1979), we cautioned him that we might nonetheless decline to go beyond the appendix. See Kunen, supra at 685-691, 382 N.E.2d 750; Ainslie v. Ainslie, 6 Mass.App.Ct. 692, 695 n.3, 382 N.E.2d 747 (1978). The exhibits were delivered to the clerk of this court the next day.

Although rule 9(b) provides, in part, that "the clerk of the lower court shall transmit any exhibit to the appellate court at the request of any party made at any time after the filing of the record appendix," it does not necessarily follow that simply because the exhibits are transmitted, they are properly before us. By relying upon rule 9(b) without having obtained leave of the court prior to oral argument under rule 18(a) to refer to the exhibits omitted from the appendix, counsel to the board has done nothing other than to transfer custody of the exhibits from the clerk of the trial court to the clerk of this court.

There is nothing in rule 18(a) or (b) which precludes us from...