CITY COUNCIL OF WALTHAM vs. BOARD OF APPEALS OF WALTHAM & others.

CITY COUNCIL OF WALTHAM vs. BOARD OF APPEALS OF WALTHAM & others.

5 Mass. App. Ct. 773

February 4, 1977

The complaint in the city council's appeal from the decision of the board of appeals was entered in the Superior Court on October 17, 1974. On October 24, 1974, counsel for the council filed in the clerk's office an affidavit in which he recited: that he had sent written notice of the filing of the appeal with a copy of the bill "to all of the respondents, including the members of the board of appeals," by certified mail; that he had the relevant return receipts; and that "all of the parties respondent have received actual notice of the filing of this appeal within the period of time prescribed by statute." On November 18, 1974, the landowners filed an answer to the merits which raised no question as to the manner in which they had been notified of the pendency of the proceedings. Counsel for the board of appeals appeared and participated in the trial on the merits (which commenced on June 18, 1975) without voicing any objection as to the manner in which the board had been notified of the proceedings. On November 19, 1975, the trial judge dismissed the complaint as matter

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of law because of the council's failure to serve any of the defendants with process in accordance with the provisions of the third paragraph of G. L. c. 40A, Section 21, as appearing in St. 1973, c. 1114, Section 4. [Note 1] The council appealed Whatever the law may have been at the time the judge rendered his decision (see Pierce v. Board of Appeals of Carver, 3 Mass. App. Ct. 352 [1975]), it is now clear that the proceedings should not have been dismissed without inquiry as to whether any of the defendants might have been prejudiced in some way by the irregular manner of notification. Pierce v. Board of Appeals of Carver, 369 Mass. 804 , 807-812 (1976). There is nothing in the record even faintly suggestive of any such prejudice. Accordingly, the judgment must be reversed and the complaint reinstated.

So ordered.

FOOTNOTES

[Note 1] See now the second paragraph of G. L. c. 40A, Section 17, as appearing in St. 1975, c. 808, Section 3.