Kasper v. Board of Appeals of Watertown

• Decision Date: 07 May 1975
• 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
• Court: Appeals Court of Massachusetts

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.

William J. O'Brien, Boston, for plaintiffs.

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

Before ROSE, KEVILLE and GRANT, JJ.

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 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.

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 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 the pertinent statute (St.1924, c. 488, § 20, as appearing in St.1941, c. 373, § 19) provided that 'notice (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 after making reasonable inquiry. The notice was mailed to the owner of the parcel, addressed to him at the street and lot number by which the parcel was identified on the records of the assessing department. As might have been expected, the envelope containing the notice was returned to the board by the post office, marked 'No such street number.' The owner of the parcel later attacked the decision of the board on the ground (among others) that the board had 'failed to mail notice to . . . (him) as one of the owners of property deemed by the board to be affected within the meaning of' the above quoted statute (p. 105, 101 N.E.2d p. 890). The court, after stating that '(r) equirements of notice of a hearing before an administrative board are to be strictly followed . . . and (that) failure to follow such requirements . . . may invalidate the hearing' (p. 107, 101 N.E.2d p. 891), said that '(i)n view of the efforts made and the doubt that any further reasonable investigation by the board's agent would have resulted in obtaining an address at which the notice would have been received . . . (it could not) say that the judge was plainly wrong in finding compliance with the requirements of notice' (p. 108, 101 N.E.2d p. 891), and held that '(t)here was . . . no error in refusing to annul the decision of the board for the reason that it exceeded its authority in proceeding to a hearing' (p. 108, 101 N.E.2d p. 891).

The Co-Ray Realty case strikes us as an example of an instance in which the notice sent to the plaintiff was the practical equivalent of no notice at all. Although that case was decided on its own peculiar facts, we think it can and should be read for the proposition that not every decision of an administrative board need be invalidated for the board's failure to comply precisely with each of the notice provisions of a statute such as G.L. c. 40A, § 17. For example, there may well be instances (a) in which the public is adequately notified, both by newspaper publication and by written notice to the planning board, of a pending petition to a board of appeals for a special permit or for a variance, but (b) in which less than all the owners of land abutting the locus or less than all the owners of land adjoining the land of the abutters (see n. 8) are properly notified because of an honest misinterpretation of the assessors' records.

To rule that a board of appeals loses jurisdiction to act in every such or comparable instance would be to rule that every successful petitioner before the board, who has no control over the manner in which the board performs its duties (compare Richardson v. Zoning Bd. of Appeals of Framingham, 351 Mass. 375, 377--378, 221 N.E.2d 396 (1966)), would remain indefinitely subject to attack in proceedings in the nature of mandamus ⁹ which might be brought against the officer charged with the enforcement of the pertinent zoning ordinance or by-law. See Brady v. Board of Appeals of Westport, 348 Mass. 515, 518--521, 204 N.E.2d 513 (1965); Lane v. Selectmen of Great Barrington, 352 Mass. 523, 526, 226 N.E.2d 238 (1967).

We do not believe any such result is required or desirable. We hold that the board's failure to give the plaintiff written notice of the public hearing on the petition for a special permit in this case did not deprive the board of jurisdiction to act on the petition.

2. The plaintiff's remaining contentions concerning the board's failure to mail him written notice of the hearing can be disposed of by resort to the principles underlying the decision in the case of Rousseau v. Building Inspector of Framingham, 349 Mass. 31, 206 N.E.2d 399 (1965), in which the only notice which the named plaintiff received of a public hearing to be held on a Tuesday was the one mailed to and received by him on the previous Friday, and in which the court said: 'What constitutes reasonable notice depends upon the facts and circumstance of each case. We need not decide whether failure to give reasonable notice by mail would be considered not prejudicial when the property owner has actual knowledge of the hearing at a reasonable...