Healy v. Board of Appeals of Watertown

356 Mass. 130 (1969) 248 N.E.2d 1

MARY C. HEALY & others
vs.
BOARD OF APPEALS OF WATERTOWN & another.

Supreme Judicial Court of Massachusetts, Middlesex.

May 6, 1969. June 3, 1969.

Present: WILKINS, C.J., WHITTEMORE, CUTTER, SPIEGEL, & REARDON, JJ.

David Berman (Anthony J. DiPerna with him) for River Manor, Inc.

Thomas C. Menton for the plaintiffs.

WHITTEMORE, J.

This is an appeal from a decision of the board of appeals of Watertown granting to the defendant River Manor, Inc. (River Manor) a variance and a special permit for a new building for a nursing home to be built on the site of, and to replace, River Manor's existing nursing home building. A final decree was entered in the Superior Court annulling the decision.

Contrary to the ruling below, we hold that the board had jurisdiction. It was not a jurisdictional defect that the notice of hearing stated that both a special permit and a variance were sought, although, as River Manor conceded in the Superior Court when the case came on to be heard, the board under the by-law had no power to grant a special permit in the particular zoning district. The essence of the notice was that board action, as specified, was requested to permit a "new Nursing Home" at the stated address. Any person opposed to or in favor of the proposal was thus given opportunity to be heard.

The failure of the plaintiffs to include a copy of the decision of the board with the notices of the bill in equity served on the defendants was not a jurisdictional defect. Opie v. Board of Appeals of Groton, 349 Mass. 730, 732-733.

The demurrer of River Manor was rightly overruled. The bill in equity adequately stated in summary form that the statutory requirements for a variance had not been met. The decision of the board was incorporated in the bill.

On the issue whether, on facts such as are recited in the board's decision to have been stated at the hearing, a variance could validly be granted, see Abbott v. Appleton Nursing Home, Inc. 355 Mass. 217.

The interlocutory decrees are affirmed. The final decree is reversed and the case is remanded to the Superior Court for determination under G.L.c. 40A, § 21, of the validity of the granting of the variance.

So ordered.