Twomey v. Board of Appeals of Medford

• Decision Date: 15 June 1979
• Parties: John J. TWOMEY et al. 1 v. BOARD OF APPEALS OF MEDFORD et al. 2
• Court: Appeals Court of Massachusetts

Page 272

390 N.E.2d 272

7 Mass.App.Ct. 770

John J. TWOMEY et al. ¹ v. BOARD OF APPEALS OF MEDFORD et al. ²

Appeals Court of Massachusetts, Middlesex.

Argued March 9, 1979.

Decided June 15, 1979.

David J. Fried, Waltham, for plaintiffs.

William M. Baker, for Trustees of Tufts College (Daniel F. Riley, City Sol., for the Board of Appeals of Medford, with him).

Before HALE, C. J., and GRANT and PERRETTA, JJ.

PERRETTA, Justice.

The defendant Trustees of Tufts College (Tufts) petitioned the defendant board of appeals of Medford (board) for zoning variances and a special permit which would enable Tufts to build dormitories to house three hundred students on a vacant portion of its campus located in Medford. Simultaneously with its petitions to the board, Tufts filed a petition for declaratory relief in the Land Court, pursuant to G.L. c. 240, § 14A, and G.L. c. 231A, § 1, seeking a determination of the validity and applicability to it of certain provisions of the Medford zoning ordinance. ³ On March 29, 1978, the board held a hearing on Tufts' petitions, and the meeting, described as "tumultuous," was attended by about five hundred residents who expressed their opposition to Tufts' petitions. The board granted the variances and special permit and filed its decision with the city clerk on May 5, 1978. On May 24, 1978, the plaintiffs commenced this action seeking review of that decision in the Superior Court and on that same day served the city clerk in hand with a copy of the complaint and sent copies by certified mail to the board chairman and Tufts' president. A "certificate of service" reciting these facts was attached to the complaint. Three weeks later, on June 14 and 16, the plaintiffs again served the chairman ⁴ and president, respectively, this time by a deputy sheriff. On June 20 the plaintiffs sent copies of their complaint by certified mail to the three remaining board members. No affidavit of service as to those board members was filed. ⁵

Tufts did not answer the complaint but instead filed a motion to dismiss, asserting (1) that the complaint recited the wrong jurisdictional basis for the action, (2) that the plaintiffs had neither timely served the board nor filed an affidavit of notice as required by G.L. c. 40A, § 17, as in effect prior to St.1978, c. 478, § 32, and (3) that the plaintiffs would not be prejudiced by a dismissal because they could intervene in the action pending in the Land Court. The board had previously filed an answer, and neither then nor at any time thereafter did it raise any of the procedural defects asserted by Tufts. The judge allowed the motion to dismiss and entered a judgment for Tufts which was subsequently amended to include judgment for all the defendants. ⁶ We reverse the judgment.

Tufts' first point, that the plaintiffs erroneously cited G.L. c. 41, § 81BB, as the jurisdictional basis of their action instead of G.L. c. 40A, § 17, is not decisive. While the former provision deals with appeals under the Subdivision Control Law, the substantive allegations of the complaint clearly and specifically establish that the appeal was taken to annul the board's granting of the variances and permit and was a proper appeal under G.L. c. 40A. Unlike the cognate provisions of Fed.R.Civ.P. 8(a)(1), our rule, Mass.R.Civ.P. 8(a), 365 Mass. 749 (1974), does not require that a pleading recite the basis of the court's jurisdiction, although it is good practice to do so. The fact that the plaintiffs did purport to recite a basis for jurisdiction is of no consequence. This discrepancy is, at best, a minimal type of defect which never has been fatal to an action (Springfield v. Commonwealth, 349 Mass. 267, 270, 207 N.E.2d 891 (1965); Charbonnier v. Amico, 367 Mass. 146, 152-153, 324 N.E.2d 895 (1975); GAILLARD V. BOARD OF APPEALS OF LEXINGTON, 6 MASS.APP. --- , 372 N.E.2D 275 (1978)^A), and if regarded as significant, which we doubt, it could have been cured by an amendment. Mass.R.Civ.P. 15(a), 365 Mass. 761 (1974). See also Evans Products Co. v. D. J. Devel. Corp., 6 Mass.App. ---, --- ^B, 375 N.E.2d 345 (1978).

The main issue raised by Tufts' motion was the plaintiffs' failure to comply with the service and affidavit provisions of G.L. c. 40A, § 17, in that they did not timely serve all the board members or file an affidavit of service. In reviewing the dismissal on the basis of such defects, we are guided by Pierce v. Board of Appeals of Carver, 369 Mass. 804, 343 N.E.2d 412 (1976), where it was held that not all errors in the procedures of such actions require dismissal, citing Schulte v. Director of the Div. of Employ. Security, 369 Mass. 74, 79-80, 337 N.E.2d 677 (1975).

When the plaintiffs served the city clerk in hand with a copy of the complaint, they "furnish(ed) 'constructive' notice to interested persons that the decision of the board of appeals ha(d) been challenged and (might) be overturned." Pierce, supra 369 Mass. at 808, 343 N.E.2d at 415. Cf. Costello v. Board of Appeals of Lexington, 3 Mass.App. 441, 442-443, 333 N.E.2d 210 (1975) (failure to comply with this requirement was fatal to the appeal). Actual notice to all of the board members was given, ⁷ although it was not timely. In such a situation, "the indicated course has been, at most, to leave the sanction to the discretion of the judge rather than mechanically to destroy the action." Pierce, supra 369 Mass. at 809, 343 N.E.2d at 415. The key issue in this regard is whether the defendants were prejudiced (Pierce, supra at 811-812, n. 13, 343 N.E.2d 412), and in the absence of prejudice a dismissal of the complaint is not required. RAIA V. BOARD OF APPEALS OF N. READING, 4 MASS.APP. --- , 347 N.E.2D 694 (1976)^C. CITY COUNCIL OF WALTHAM V. BOARD OF APPEALS OF WALTHAM, 5 MASS.APP. --- , 359 N.E.2D 651 (1977)^D. MELE V. ZONING BD. OF APPEALS OF MILFORD, 5 MASS.APP. --- , 360 N.E.2D 639 (1977)^E. Neither Tufts nor the board alleged or demonstrated prejudice arising out of the manner in which either had received notification. ⁸ For this reason the plaintiffs' failure to file the affidavit of notice is not fatal. Shaughnessy v. Board of Appeals of Lexington, 357 Mass. 9, 14, 255 N.E.2d 367 (1970).

Although none of these procedural defects requires a dismissal as matter of law, Tufts argues that we should not upset the judgment because the judge did not abuse his discretion, citing Curcio v. Russo, 3 Mass.App. 730, 326 N.E.2d 30 (1975). However, there the plaintiff sought to amend her complaint to name all the board members as defendants. In affirming the denial of the motion to amend, we pointed out that the record failed to disclose that Any of the defendant board members had ever been given notice, timely or otherwise. The present record is silent as to the reasons for allowing the motion, but we note that unlike Curcio, here all the board members actually received notice and one board member and Tufts received timely notice. Therefore, we infer from this record that the basis of the dismissal could not have been the existence of the nonprejudicial defects; rather, it was Tufts's insistence that the plaintiffs could fully litigate the identical issues raised in this action by intervening in the Land Court action previously commenced by Tufts. Such was not a proper basis for the dismissal.

The action in the Land Court was brought under G.L. c. 240, § 14A, as amended through St.1977, c. 829, § 14, and under G.L. c. 231A, § 1, for the purpose of determining whether Tufts' use of its land is exempt from the Medford zoning ordinance under G.L. c. 40A, § 3, ⁹ as a use for an educational purpose. The sole issues raised by Tufts in the Land Court are the validity and the extent of the applicability of the zoning ordinance. See Pitman v. Medford, 312 Mass. 618, 620-621, 45 N.E.2d 973 (1942); Addison-Wesley Publishing Co. v. Reading, 354 Mass. 181, 185, 236 N.E.2d 188 (1968); Harrison v. Braintree, 355 Mass. 651, 654, 247 N.E.2d 356 (1969). On the other hand, the plaintiffs asserted in their § 17 complaint that the board had acted arbitrarily and exceeded its authority by not holding separate hearings on the requests for the variances and the permit, that some of the board members were disqualified due to alleged conflicts of interest, and that the board had not made findings sufficient to support its decision. While the parties have argued the question whether the Land Court had jurisdiction to hear the plaintiffs' allegations under G.L. c. 40A, § 17, as in effect prior to St.1978, c. 478, § 32, or under G.L. c. 240, § 14A, G.L. c. 185, § 1(j1/2), and G.L. c. 231A, ¹⁰ that question is of no relevance in determining the correctness of the allowance of Tufts' motion. Even assuming the Land Court had jurisdiction over the issues raised by the plaintiffs, they cannot be deprived of their statutory right to seek review in the Superior Court by virtue of the existence of possible alternative remedies, cf. Sisters of the Holy Cross of Massachusetts v. Brookline, 347 Mass. 486, 498-499, 198 N.E.2d 624 (1964), and the trial judge, in...