Brown v. Board of Appeals

396 N.E.2d 1014, 8 Mass. App. Ct. 929, 1979 Mass. App. LEXIS 1000

• Court: Massachusetts Appeals Court
• Decided: November 15, 1979
• Status: Published

Opinion

Within twenty days of the board’s filing its decision with the town clerk granting the landowners’ petition for a zoning variance, the plaintiffs appealed to the Superior Court. The landowners moved to dismiss the appeal (Mass.R.Civ.P. 12[b][l], 365 Mass. 755 [1974]); arguing that it was untimely because it was not brought within twenty days of the date that the petition was constructively allowed due to the board’s failure to act on the petition within seventy-five days of its filing. See G. L. c. 40A, § 15, as appearing in St. 1975, c. 808, § 3. The trial judge allowed the motion and entered a judgment for the defendants. We reverse the judgment.

Because Manchester did not accept St. 1975, c. 808, § 3, before the plaintiffs’ appeal to the Superior Court or during the implementation period of that statute (see St. 1975, c. 808, § 7, as amended by St. 1977, c. 829, § 4), and because the zoning provisions of Manchester relevant to this action were in effect prior to January 1,1976 (the effective date of St. 1975, c. 808, § 7), this action is governed by the former c. 40A, § 21 (as in effect prior to St. 1975, c. 808, § 3), and the twenty-day period for filing an appeal from the board’s action ran from the date the board’s decision was filed with the town clerk. Casasanta v. Board of Appeals of Milford, 377 Mass. 67, 71-73 (1979). Shalbey v. Board of Appeal of Norwood, 6 Mass. App. Ct. 521, 523-527 (1978).

John S. Legasey for the plaintiffs. John L. Akula for Lawrence W. White & another.

Judgment reversed.