Pasqualino v. Board of Appeals of Wareham

• Decision Date: 27 September 1982
• Citation: 14 Mass.App.Ct. 989,440 N.E.2d 523
• Parties: Angelo PASQUALINO et al. v. BOARD OF APPEALS OF WAREHAM et al. 1
• Court: Appeals Court of Massachusetts

Page 523

440 N.E.2d 523

14 Mass.App.Ct. 989

Angelo PASQUALINO et al. v. BOARD OF APPEALS OF WAREHAM et al. ¹

Appeals Court of Massachusetts,

Plymouth.

Submitted May 7, 1982.

Decided Sept. 27, 1982.

John R. Walkey and Laura J. Goldin, Boston, for plaintiffs.

Joseph R. Grassia, Town Counsel, Wareham, and Alice M. Vogler, Boston, for defendants.

Before GRANT, CUTTER and BROWN, JJ.

RESCRIPT.

The plaintiffs brought an action in the Superior Court seeking review of the board's denial of their request for a variance from the minimum lot size requirements of the town's present zoning by-law and seeking a declaratory judgment stating that they are entitled to develop certain property within the town pursuant to a previously approved subdivision plan. The trial judge granted a motion to dismiss under Mass.R.Civ.P. 12(b)(1) and (6), 365 Mass. 754-755 (1974), and entered judgment for the defendants. The plaintiffs have appealed.

Counts 1 through 3:

The judge did not err in dismissing counts 1 through 3 of the complaint. The circumstances of this aspect of the case are controlled in all material respects by Costello v. Board of Appeals of Lexington, 3 Mass.App. 441, 442-445, 333 N.E.2d 210 (1975), where this court construed G.L. c. 40A, § 21, the predecessor of the current § 17. A complaint seeking review in the Superior Court of a decision of a board of appeals must be filed (with a copy of the complaint) with the appropriate town clerk within twenty days of such decision. G.L. c. 40A, § 17, as most recently amended by St.1978, c. 478, § 32. The plaintiffs cannot claim that the required notice was received by the town clerk within the required statutory period, because the only notice sent was addressed to the board. "Manifestly the purpose of the notice provision is not served within the time limited unless the notice is received within the time limited." Costello v. Board of Appeals of Lexington, 3 Mass.App. at 443, 333 N.E.2d 210. The case of Twomey v. Board of Appeals of Medford, 7 Mass.App. 770, 390 N.E.2d 272 (1979), relied on by the plaintiffs, is of no avail, as that case is entirely consistent with Costello. See Twomey, supra 7 Mass.App. at 773, 390 N.E.2d 272. See also Marvin v. Board of Appeals of Medfield, 5 Mass.App. 772, 359 N.E.2d 318 (1977).

Count 4:

The plaintiffs claim that they are entitled to a variance on the ground that it had been granted as matter of law--"constructively" granted--by the board under the fifth paragraph of G.L. c. 40A, § 15 (as appearing in St.1975, c. 808, § 3). See Rinaudo v. Zoning Bd. of Appeals of Plymouth, --- Mass. ---, Mass.Adv.Sh. (1981) 1244, 421 N.E.2d 439. We cannot agree, as there is nothing in the record that would permit the judge to conclude that the plaintiffs' application had been filed with the town clerk in accordance with the requirements of G.L. c. 40A, § 15, so as to cause the board's decision of April 21, 1981, to fall outside the seventy-five day limit mandated by that provision. The plaintiffs' allegations in their complaint and amended complaint that they filed their application for a variance on February 4, 1981, not only lacks support in the record, but is not in accord with the evidence.

Counts 5 and 6:

The plaintiffs' claim that "real practical impediments" tolled the seven-year "freeze" on zoning amendments under former G.L. c. 40A, § 7A, as now embodied in G.L. c. 40A, § 6; that their plans for development vested prior to the zoning changes; and that the town is estopped from enforcing the zoning amendments. We summarily reject those contentions. The seven-year period under the present G.L. c. 40A, § 6, may be tolled if litigation, appeals or actions by municipal officials make the legality of the construction or plans questionable so as to impede work on or completion of the project. Compare Woods v. Newton, 351 Mass. 98, 103-104, 217 N.E.2d 728 (1966); Belfer v. Building Commnr. of Boston, 363 Mass. 439, 442-445, 294 N.E.2d 857 (1973); Cape Ann Development Corp. v. Gloucester, 371 Mass. 19, 23, 353 N.E.2d 645 (1976); M. DeMatteo Constr....