Marvin v. Board of Appeals

The judge did not err in allowing the defendants’ motion for summary judgment based on the uncontested affidavit of the town clerk that no notice of the appeal from the board’s decision (filed with the town clerk on September 12, 1975) was received by her office until October 20, 1975. G. L. c. 40A, § 21, second par., as amended through St. 1974, c. 78, § 1 (see now G. L. c. 40A, § 17, first par., as appearing in St. 1975, c. 808, I 3). Costello v. Board of Appeals of Lexington, 3 Mass. App. Ct. 441, 442-443 (1975). The authority of the Costello case has not been impaired by Pierce v. Board of Appeals of Carver, 369 Mass. 804 (1976), which, at 808-809, cited the Costello case approvingly and affirmed that the dual time requirements of the second paragraph of § 21, relative to the commencement of the action in the Superior Court and the filing of notice thereof in the office of the town clerk, will be “policed in the strongest way.”

Judgment affirmed.