Opie v. Board of Appeals of Groton

• Decision Date: 07 December 1965
• Citation: 349 Mass. 730,212 N.E.2d 477
• Parties: Frank J. OPIE v. BOARD OF APPEALS OF GROTON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 477

212 N.E.2d 477

349 Mass. 730

Frank J. OPIE v. BOARD OF APPEALS OF GROTON et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Nov. 4, 1965.

Decided Dec. 7, 1965.

Warren W. Allgrove, Lowell, for plaintiff.

Michael R. Pizziferri, Brighton, (Joseph A. Todisco, Boston, with him), for defendant John J. Long.

Before SPALDING, WHITTEMORE, KIRK, SPIEGEL, and REARDON, JJ.

WHITTEMORE, Justice.

This is a suit in equity in the Superior Court under G.L. c. 40A, § 21, by way of appeal from a decision of the board of appeals of Groton granting to the defendant John J. Long a variance for the use of certain premises as a funeral home. Long filed a plea in abatement, assigning as reasons that the plaintiff did not attach a copy of the decision of the board of appeals of Groton to Long's copy of the bill and failed to file an affidavit of the giving of notice, with copy of the bill, to the town clerk of the town of Groton. The plaintiff's appeals from an interlocutory decree sustaining the plea and from a final decree dismissing the bill bring the issue to this court.

General Laws c. 40A, § 21, as amended through St.1960, c. 365, provides, in part: 'Any person aggrieved by a decision of the board of appeals * * * may appeal to the superior court for the county in which the land concerned is situated, by filing a bill in equity within twenty days after the decision has been filed in the office of the city or town clerk. Notice of the filing with a copy of the bill in equity shall be given to such city or town clerk so as to be received within such twenty days. * * * There shall be attached to the bill a copy of the decision appealed from, bearing the date of filing thereof, certified by the city or town clerk with whom the decision was filed. Where the bill is filed by someone other than the original applicant, appellant or petitioner, such original applicant, appellant or petitioner and all the members of the board of appeals shall be named as parties respondent with their addresses. To avoid delay in the proceedings, instead of the usual service of process on a bill in equity, the plaintiff shall within fourteen days after the filing of the bill in equity give written notice thereof, with a copy of the bill by delivery or certified mail to all respondents, including the members of the board of appeals, and shall, within twentyone days after the entry of the bill file with the clerk of the court an affidavit that such notice has been given. If no such affidavit is filed within such time the bill shall be dismissed. * * *'

There are no findings. The affidavit seasonably filed by the plaintiff certifies to giving notice to 'all Respondents * * * with a copy of the Bill in Equity of the entry of subject suit by certified mail.' The parties, however, at the argument, stipulated that no copy of the decision of the board of appeals was attached to the copies of the bill mailed to the defendants.

The statute does not require an affidavit of the filing with the town clerk of a copy of the bill in equity. The absence of such an affidavit was not a defect and the second ground of the plea fails.

The statute provides for an appeal to be taken 'by filing a bill in equity.' See Cohen v. Board of Registration in Pharmacy, 347 Mass. 96, 98-99, 196 N.E.2d 838. The filing of a copy of the bill with the town clerk was also a requirement of a valid appeal. See Lincoln v. Board of Appeals of Framingham, 346 Mass. 418, 420, 193 N.E.2d 590; Carey v. Planning Bd. of Revere, 335 Mass. 740, 745, 139 N.E.2d 920. The plea does not aver that this requirement was omitted. We are not clear whether the stipulation before us was intended to establish that no copy of the decision had been attached to the copy of the bill filed with the town clerk. If we were to assume the absence of such a copy, this would not show any...