Nantucket Land Council, Inc. v. Planning Bd. of Nantucket

• Decision Date: 30 March 1977
• Citation: 361 N.E.2d 937,5 Mass.App.Ct. 206
• Parties: NATUCKET LAND COUNCIL, INC., et al. v. PLANNING BOARD OF NANTUCKET et al. 1
• Court: Appeals Court of Massachusetts

Page 937

361 N.E.2d 937

5 Mass.App.Ct. 206

NATUCKET LAND COUNCIL, INC., et al. v. PLANNING BOARD OF NANTUCKET et al. ¹

Appeals Court of Massachusetts, Nantucket.

Argued Feb. 17, 1977.

Decided March 30, 1977.

Alan H. Kaufman, Boston, for plaintiffs.

James M. Hughes, Boston, for Harriet W. Backus (Charles A. Goglia, Jr., Town Counsel, Wellesley, for the Planning Board of Nantucket and another, with him).

Before KEVILLE, GRANT and BROWN, JJ.

GRANT, Justice.

This is an amended complaint (complaint) in the Superior Court by which various plaintiffs (or groups of plaintiffs) seek to pursue four distinct routes in their efforts to overturn a decision made by the planning board of Nantucket on September 2, 1975, by which that board approved a definitive plan of subdivision (G.L. c. 41, § 81U) of certain land owned by the defendant Backus and lying in the Wauwinet section of the town. Those routes are: (1) an appeal under G.L. c. 41, § 81BB; (2) an action of an equitable nature under G.L. c. 41, § 81Y; (3) a proceeding under G.L. c. 39, § 23C, as in effect prior to St.1975, c. 303, § 3; and (4) an action under G.L. c. 214, § 7A. The defendants moved to dismiss under Mass.R.Civ.P. 12(b)(1) and (6), 365 Mass. 755 (1974).

The matter was heard and determined by a judge of the Superior Court on the complaint and the opposing affidavits submitted by the parties. ² The judge ruled that '(t)here is no factual dispute as to the issues raised by the motions' and ordered the entry of a judgment dismissing the action in all its aspects. The plaintiffs appealed from that order. The appeal must be dismissed because no 'final judgment' (G.L. c. 231, § 113, as appearing in St.1973, c. 1114, § 202) has yet been entered. See Mass.R.A.P. 3(a), 365 Mass. 845 (1974), which is cast in terms of '(a)n appeal permitted by law' (emphasis supplied). However, as the order for judgment is in such form that a judgment of dismissal may now be entered by the clerk without further action on the part of the judge (see Mass.R.Civ.P. 58(a)(1), 365 Mass. 826 (1974)), we proceed to consider by way of dictum (Giacobbe v. First Coopidge Corp., --- Mass. ---, ---, ^a 325 N.E.2d 922 (1975)) certain of the contentions

argued by the parties. ³

We find at least one insurmountable obstacle along each of the routes selected by the various plaintiffs (or groups of plaintiffs) in their efforts to overturn the decision of the planning board and prevent the consummation of the proposed development.

1. We consider first whether there has been compliance with the requirements of the first sentence of G.L. c. 41, § 81BB (as appearing in St.1953, c. 674, § 7), which reads in pertinent part as follows: 'Any person, whether or not a party to the proceedings, aggrieved . . . by any decision of a planning board concerning a plan of a subdivision . . . may appeal to the superior court . . . for the county in which the land concerned is situated; provided, that such appeal is entered within twenty days after such decision has been recorded in the office of the city or town clerk . . . and notice of such appeal is given to such city or town clerk so as to be received within such twenty days.' It is settled that compliance with the notice requirement within the twenty day period is a jurisdictional prerequisite to the prosecution of an appeal under § 81BB. Carey v Planning Bd. of Revere, 335 Mass. 740, 745, 139 N.E.2d 920 (1957), S.C. 335 Mass. 746, 141 N.E.2d 895 (1957). Cohen v. Board of Registration in Pharmacy, 347 Mass. 96, 98, 196 N.E.2d 838 (1964). Compare Pierce v. Board of Appeals of Carver,--- Mass. ---, --, ^b 343 N.E.2d 412 (1976); Marvin v. Board of Appeals of Medfield, 5 Mass.App. --- ^c , 359 N.E.2d 318 (1977). ⁴

The Subdivision Control Law is a 'comprehensive statutory scheme.' Costanza & Bertolino, Inc. v. Planning Bd. of North Reading, 360 Mass. 677, 679, 277 N.E.2d 511 (1971). Cassani v Planning Bd. of Hull, 1 Mass.App. 451, 458, 300 N.E.2d 746 (1973). 'The intention of relevant sections of the Subdivision Control Law is to set up an orderly procedure for definitive action within stated times, and for notice of that action in offices of record within stated times, so that all concerned may rely upon recorded action or the absence thereof within such times. See G.L. c. 41, §§ 81V, 81W, 81X, 81BB, 81EE' (emphasis supplied). Selectmen of Pembroke v. R. & P. Realty Corp., 348 Mass. 120, 125, 202 N.E.2d 409, 412 (1964). Cassani v. Planning Bd. of Hull, 1 Mass.App. at 457, 300 N.E.2d 746. 'The provision for notice to the clerk is . . . designed to give to third persons who may be concerned with the land at least constructive notice of the appeal, which, is sustained, may invalidate an outstanding, apparently valid plan.' Carey v. Planning Bd. of Revere, 335 Mass. at 745, 139 N.E.2d at 923. Compare McLaughlin v. Rockland Zoning Bd. of Appeals, 351 Mass. 678, 680, 223 N.E.2d 521 (1967); Garfield v. Board of Appeals of Rockport, 356 Mass. 37, 39, 247 N.E.2d 720 (1969); Carr v. Board of Appeals of Saugus, 361 Mass. 361, 362, 280 N.E.2d 199 (1972); Pierce v. Board of Appeals of Carver, 369 Mass. at ---, ^d 343 N.E.2d 412; Costello v. Board of Appeals of Lexington, --- Mass.App. ---, ---, ^e 333 N.E.2d 210 (1975).

With these principles in mind we proceed to summarize the facts which appear in or which can properly be inferred from the allegations of the complaint and the opposing affidavits. The decision of the planning board in this case was filed in the office of the town clerk on September 3, 1975. On September 17, 1975, the president of the plaintiff Nantucket Land Council, Inc., ⁵ entered the office ofD the town clerk with the original of the complaint in this matter and requested the clerk, acting as a notary public, to take his (the president's) oath to the truth of the allegations of the complaint. The clerk did so, affixing his signature and notarial seal on the last page of the complaint. The clerk has sworn (without contradiction) that he 'took no notice of the content of the document and recall(s) seeing no portion of the complaint other than the signature page,' which contains prayers for preliminary injunctive relief against the defendant Backus and a prayer that

'the decision of the (p)lanning (b)oard . . . be annulled.' It does not appear, nor is it asserted in any of the affidavits submitted in behalf of the plaintiffs, that the clerk actually read any part of the complaint, although it is arguable that he had an opportunity to read the complaint in its entirety. The complaint was then taken from the clerk and was thereafter timely entered in the Superior Court on the same day, September 17. ⁶

An article on the front page of the September 18 edition of the weekly newspaper published in the town announced the entry of the appeal and its objective, identified the parties, and contained a reference to the locus covered by the subdivision plan which had been approved by the planning board on September 2. The town clerk was a subscriber to the newspaper, both at the town office and at his home, ⁷ and copies were mailed to him at both addresses on September 18. The record is silent as to whether the clerk ever read the newspaper. There is no dispute that none of the plaintiffs gave the clerk any written or other form of notice of the appeal until some time after September 23, 1975. If the clerk did learn of the appeal before that date, he made no record of that fact in his office. If the clerk ever did receive a copy of the complaint, ⁸ it was not until after September 23.

There is no obligation on the part of a town clerk to make any investigation as to whether an appeal has been filed in court (see and compare Carey v. Planning Bd. of Revere, 335 Mass. at 747, 139 N.E.2d 920) or to make a record of any fact he may learn from a newspaper he is not required to read. There is no room for doubt that it is the plaintiff, who has the burden of entering the appeal in court, who must give the clerk the notice which is required by § 81BB. The plaintiff must do more than give the notice; the clerk must actually receive the notice within the twenty day period after the 'decision (of the planning board) has been recorded in . . . (his) office.' The teaching of the portion of the Pembroke case which has already been quoted (348 Mass. at 125, 202 N.E.2d 409) is that the notice is something which is also to be recorded, which must necessarily be so if the notice is to serve its intended purpose of providing constructive notice of the appeal to third persons who may be concerned with the land. See the Carey case, 335 Mass. at 745, 139 N.E.2d 920.

It would seem that only a written notice to the clerk which he records upon its receipt would (a) serve the purpose last mentioned and (b) provide the Superior Court with a simple means of determining its jurisdiction to hear the appeal without the necessity of holding a preliminary hearing such as that which was required in the present case. We need not decide that point in order to dispose of this aspect of the present case. It is enough that nothing found in any of the affidavits submitted in behalf of the plaintiffs was sufficient to raise a dispute as to the fact that none of the plaintiffs gave the town clerk any notice of the appeal within the twenty day period following the date of the recording of the planning board's decision in the clerk's office. Boston Police Patrolmen's Assoc. Inc. v. Police Commr. of Boston, --- Mass.App. ---, --- ^f, 357 N.E.2d 779 (1976).

2. The plaintiffs, who include among their number ten taxpayers of the town of Nantucket, also seek to overturn the decision of the planning board by proceeding under the last paragraph of G.L. c. 41, § 81Y, as appearing in St.1953, c. 674, § 7. ⁹ The complaint in this matter does not allege a violation (or even a contemplated violation) of any provision found in any of the four preceding paragraphs of § 81Y, and we note at the outset that...