Kasper v. Board of Appeals of Watertown

• Court: Appeals Court of Massachusetts
• Writing for the Court: GRANT
• Citation: 3 Mass.App.Ct. 251,326 N.E.2d 915
• Parties: John KASPER et al. 1 v. BOARD OF APPEALS OF WATERTOWN et al. 2
• Decision Date: 07 May 1975

Page 915

326 N.E.2d 915 3 Mass.App.Ct. 251 John KASPER et al. ¹
v.
BOARD OF APPEALS OF WATERTOWN et al. ² Appeals Court of Massachusetts, Middlesex. Argued April 17, 1975.
Decided May 7, 1975.

Page 916

[3 Mass.App.Ct. 252] William J. O'Brien, Boston, for plaintiffs.

John F. Corbett, Watertown, for defendant Richard P. Meehan.

Before [3 Mass.App.Ct. 251] ROSE, KEVILLE and GRANT, JJ.

[3 Mass.App.Ct. 252] GRANT, Justice.

This is an appeal from a final decree of the Superior Court which confirmed the decision of the board of appeals of Watertown (board) to grant a special permit to the defendant Meehan for the conduct of an auto body repair business at 550R Pleasant Street (locus) in Watertown. G.L. c. 40A, § 21. The plaintiff John Kasper is the owner of three contiguous multi-family dwellings which front on the same side of Pleasant Street as the locus and one of which abuts the locus. ³ Those dwellings and the locus all lie within the same industrial zoning district. The only question argued before us is the consequence (if any) of [3 Mass.App.Ct. 253] the board's failure to mail the plaintiff written notice of the public hearing held on the Meehan petition in accordance with the provision for such notice found in the first sentence of G.L. c. 40A, § 17 (as appearing in St.1971 c. 569). ⁴ The judge's findings on this point are as follows.

Page 917

The hearing in question was held on October 16, 1973, following newspaper publications on September 27 and October 4, 1973. 'Notice of the hearing was not sent to the . . . (plaintiff). However, he and his son learned of the public hearing on October 4, 1973. Both . . . attended the public hearing and were recorded as opposing the special permit. While . . . (the plaintiff's son) ⁵ made an objection to the hearing on the ground of lack of notice, he presented, on behalf of his father, pictures of the property of . . . (the plaintiff) and argued against the special permit. I find that the . . . (plaintiff) had reasonable notice of the public hearing and also had reasonable time to prepare, and did prepare and present evidence, exhibits and arguments opposing the granting of the special permit.'

1. We consider first the plaintiff's contention that the board's failure to send him written notice of the hearing deprived the board of jurisdiction to act on the petition for the permit. A review of the cases in which there has been occasion to consider the consequences of a failure by a board of appeals ⁶ to comply with various of the notice provisions [3 Mass.App.Ct. 254] now found in G.L. c. 40A, § 17, discloses a number of instances in which it has been held that a particular failure did deprive the board of jurisdiction to act. Thus, it has been held that a board of appeals lacks the necessary jurisdiction if the published notice does not contain a sufficient description of the subject matter of the petition to the board (Kane v. Board of Appeals of Medford, 273 Mass. 97, 103--105, 173 N.E. 1 (1930)), if the board does not comply with other provisions concerning newspaper publication (Roman Catholic Archbishop of Boston v. Board of Appeal of Boston, 268 Mass. 416, 418--419, 167 N.E. 672 (1929); Gallagher v. Board of Appeals of Falmouth, 351 Mass. 410, 414--415, 419, 221 N.E.2d 756 (1966); Lane v. Selectmen of Great Barrington, 352 Mass. 523, 526, 226 N.E.2d 238 (1967)), or if the board attempts to delegate to a petitioner its duty to mail whatever notices may be required (Kane v. Board of Appeals of Medford, 273 Mass. 97, 102--103, 173 N.E. 1 (1930); Planning Bd. of Peabody v. Board of Appeals of Peabody, 358 Mass. 81, 83, 260 N.E.2d 738 (1970)). The same result is probably required if the board fails to mail notice of the hearing to the planning board. See Medeiros v. Aldermen of Woburn, 350 Mass. 767, 213 N.E.2d 921 (1966). None of the decided cases has determined the jurisdictional consequence (if any) of a board's failure to mail notice of the hearing to an owner of property which abuts the locus. Indeed, the question appears to have been left expressly unanswered so far as the provisions of G.L. c. 40A, § 17, are concerned. See Kane v. Board of Appeals of Medford, 273 Mass. 97, 101--102, 173 N.E. 1 (1930); Medeiros v. Aldermen of Woburn, 350 Mass. 767, 213 N.E.2d 921 (1966). ⁷

We think, however, that some light is shed on the question by the case of CoRay Realty Co. Inc. v. Board of Zoning Adjustment of Boston, 328 Mass. 103, 101 N.E.2d 888 (1951), where [3 Mass.App.Ct. 255] the pertinent statute (St.1924, c. 488, § 20, as appearing in St.1941, c. 373, § 19) provided that 'notice

Page 918

(of the public hearing) shall be mailed . . . (by the board) to the owners of all property deemed by the board to be affected thereby as they appear in the current records of the assessing department . . .' (p. 107, 101 N.E.2d p. 890). ⁸ The board was faced with the problem of mailing notice of a hearing to the owner of a parcel of vacant land who could be identified from the records of the assessing department but for whom the board could discover no mailing address...