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July 24, 2008

Comments

I'm Shocked!

I find it hard to believe that two guys as intelligent as Butchie and Sean and in the public arena as long as they have been would be this brazen. Someone must be trying to set them up here. I want to hear their side of the story. Just tell the truth guys. It's the best defense.

The Mole

If it walks like a Duck and quacks like a Duck; IT IS A DUCK. More like Duckettes.

The Mole

JPM

People do not serve on ZBAs out of the kindness of their hearts. That is true in Somerville and everywhere else. Any lawyer that has dealt with appeals from arbitrary ZBA decisions will tell you that system is rife with corruption, favors, nepotism and conflicts of interest!!

snowbunny

SO what else is new??? Good old SOMERVILLE politicians for ya..............

JMD

How inappropriate. But would you expect anything else from the elected officials of Somerville?

Everyone saved some money in last two years!

Hey what's up? No more charity banquets? Or did you finally get caught?

JPM

Someone who holds a position such as Chairman of a ZBA must be seen to be impartial and beyond reproach. Just as judges are not allowed to accept money or gifts because of the appearance of impropriety, a ZBA chair should not be able to do that either. The "charity" thing is just a bs front....anybody can see through that.

Would you feel comfortable if you knew that a judge had accepted money from the opposing side in a lawsuit? Of course not! If you want to make contributions and accept money then you can Mr. Chair.....but you would have to resign first!

City Hall Nose

Maybe this is one reason why portions of the documents our City Solicitor has blackened out from our elected officials. This is an atrocity for this Administration to get away with not fully disclosing their ventures. The ward 1 Alderman just had two more relatives added to the city payroll. Two cousins, 1 working in the 311 area and the other cousin being added as the assistant supervisor of police details working under Ward 1 Alderman’s’ daughter-in-law, Supervisor of police details..

There is more to the pie filling than just fruit.

Ward5Born

So SOD has been buying favors from this loud shirted hack with campaign money?

That explains why so many developers give SOD money. Sounds like backdoor influence peddaling to me. What did you expect. Both are Curtatone confidants.

Somerville n00b

Look, people, it's rather obvious. When certain actions look suspicious, such as hiding critical information from the public, those who are carrying them out do so for a purpose: Hiding something illegal. Start an investigation, bring in the Feds, if possible, if any federal laws may have been violated. Whistleblowers out there, please do your job.

msgmgm

come on now....do you really think this is the first time anything like this has happened in the city..this has been going along for years now and with a lot of the politicians. I think a fed. investigation is the right thing to do. how is one going to set this up????

Somerspeak

The exquisite irony. Alderman sells himself to the voters as their defender. Alderman sells himself to developers as their champion to get things through. Alderman buys favors from board members to get the developers(including himself)what they want. Alderman gets luxury condos to displace the very "oldtime" voters he has vowed to defend.

Alderman O'Donovan wins. Voters lose.

Nice.

JPM

Interesting. Why would Sean O'Donovan bring along 17 Somerville workers to support him? Do they live on Craigie Street? I doubt it. In fact if you the article most of them just said "this is good for Somerville in general."

If someone did an investigation of these people who showed up to support SOD they will probably find that they are juiced in workers who got their jobs with the help of SOD and are now paying him back. It would make an interesting family tree I am sure.But that's how corrupt Mass and Somerville works.

In any event I am not sure why the ZBA would give any weight to their opinion if they din't live there. He should just losten to the postion of the residents and the developer. ______________________________________________

"A parade of city workers came out to back Alderman Sean O’Donovan’s planned condo complex at an “empty brown lot” on Craigie Street.

Leading the pack of O’Donovan supporters was his former campaign manager, Bob McWaters, and Peri Nawawi, O’Donovan’s wife and one of the attorneys in his Ball Square law office. They were joined by 17 other Somerville residents, including three developers, a firefighter, a police officer and a DPW employee.

Heck if I could I would represent the Craigie street people for free....I would love to depose the SOD and the ZBA chair.

And the neighbors didn’t like it."

http://www.wickedlocal.com/somerville/archive/x1101570679/Neighbors-pan-alderman-s-building-plans

I'm Shocked!

I think Sean at least should try to explain this to the voters, and I'm sure he can. If he doesn't it will give the impression of impropriety and just give his detractors more ammunition next year. Butchie doesn't owe anyone an explanation except maybe the people who appointed him to the ZBA, if they want one.

Somerville n00b

But what kind of dark thoughts do you think storm through Sean O'Donovan's head when he wakes up at 3AM in a pool of sweat? Are they gonna find out? Are some of these people who "support" me now (they better!) gonna sell me out one day, after they go working for my enemies?

Imux

For pete's sake, folks, do any of you actually think a couple of thousand dollars either way was a determining factor here? I spend more than that one night drinking at Abe & Louies and filling up the tank in my Hummer H3 (watch out, b00b!). We're not talking big bucks here, so I doubt that had anything to do with anything. Much-ado about nothing.

This is why I am against full disclosure. I give people money in this city all the time, so now I can't run for office? If you own anything, do anything or know anyone in this city - FULL DISCLOSURE will prevent you from running. We need more people who DO things in office - regardless of who donates to them. We need less Carls, Pats, Rebeccahs (do nothings) and more Seans and Bobs (get things done).

Fool on the Hill

This is the Somerville way. The mayor has a franchise to take whatever he can. He gets to appoint other thieves who get smaller licenses to take what they want. They all owe loyalty to the mayor. The aldermen get paid well to look the other way and do nothing. If they’re enterprising, they use their positions like Sean O’D does.

Now it’s the worst that it’s been for as long as I can remember, but no one is paying attention. They just say “yeah, ok,” while the mayor makes a charter-change play to expand his power even more.

My Cousin Vinny (Ciampa)

Where's the Farm Team on this story?

Curt and Tony

I think this article made Joe Lynch smile today. About an hour ago, we saw him in Magoun Square dancing in the rain with an umbrella, splashing in puddles like Gene Kelly.

JPM

So Imux....here is a scenario for you. Soemone sues your business. You go to court and the judge rules against you and you have to pay damages.

You later find out that the attorney on the other side or the person who sued you is chummy with the judge and had given them a couple thousand dollars the year before. You are not bothered by this I presume!!!

Somerville n00b

Imux, you make no sense as usual. If you have nothing to hide, than why not allow FULL DISCLOSURE? It's the same argument wanna be fascists such as yourself used in favor of NSA reading all our e-mails. If you have nothing to hide, then why not allow the NSA to read all your e-mails?
Oh, we are waiting for the day you run. All one needs to sink any chance you may have is the list of your posts on this site. Don't be surprised if it turns out many more people than you think actually know your identity. Your tendency to brag when you are drunk does not help keeping that a secret :)

Imux

JPM, bad example as judges make rulings that directly impact people one or way another. A judge MUST disclose or recuse themselves if they have any ties to a case. And if that happened to me then I would appeal and then payoff the next judge myself.

b00b, you moron, if you keep your nose clean than you have nothing to worry about with the NSA's efforts to kill your terrorist friends. I would hope they expand the NSA powers to snoop on progressive democrats as I feel that there are many amongst you that support Al Queda.

Diogenes

Wasn’t there a story in this newspaper a couple of years ago about a developer’s contribution to a local charity? If I remember it right, 7 or 8 years ago the new head of Inspectional Services told a lady from the Assembly Square developers company that just issuing permits for a half dozen big box stores was against zoning law. She broke into tears and said that the previous developer, Mike F., had told her that if she gave donations to the right charities, she could have the permits. I wonder if that was Foster’s charity.

Ron Newman

Perhaps Imux is unfamiliar with the reasons we have the First American Flag flying atop Prospect Hill.

The Fourth Amendment was a good idea in 1789 and remains one today.

JPM

Imux, the ZBA, like a judge, makes rulings that directly impact people. That's why you have a ZBA, so both sides can be heard. And that is why you can appeal a ZBA decision to the superior court, the appeals court and then the SJC.

Harry Roache

This my friends is just the "TIP" of the Iceburg.....The rest of the "BUTCHIE FOSTER" Iceburg is very wide and runs very deep. I would hope that the groundswell of tax payer concern is enough to get the FEDS to come for a visit to the Former All American City and turn over some of the bigger rocks. I am sure they will find a connection between Butchie
( not the Ball eater) and stan "TOOTHLESS BOSS HOG" KOTY and the PIRO Machine which also includes the head of the somerville housing authority amoung others.......this is a very dirty chairperson of the ZBA and not too bright I might add so the leg work by the FEDS is not going to be too strnuous to uncover the slim beneath the rocks......What is it worth to the tax payers and voters of SOMERVILLE....We shall see said the blind man.....but one thing I do believe will ring true....."WHAT GOES AROUND COMES AROUND " and what seeds have been sowed by Butchie abd SOD will bear them the furit they really deserve......It is amazing what some people will do for money .....these people sell their family name for pennies on the dollar .......good for them....... let the games begin

the butcher of baghad!

People can say what they want about the butcher of Somerville, but he's "not like the butcher of Baghdad" Soft spoken with a million doller strut, this irish lad has Somerville roots that goes way back. A good father, and great grandfather, who's not afraid to negotiate a back-door deal! "You do for me, I do for you" Whats wrong with helping those that help you? The butcher is known as a shrewd business man and developer, which gains him political clout. The butcher has loyalty in the following individuals (Vincent Pero, Stan Koty, Joe Macaluso, Joe Curtatone, and Barrack Obama) His recent contributions and dilegent fundraising for the democratic party have secured his future. Whats wrong with a little political favortism if your producing on the other end? Why shouldn't he collect 3 pensions? I find nothing wrong with helpingthose that help you!

William Hurst

To the people of Craigie Street. This is not over, you can file an appeal in regard to the ZBA ruling. Also, contact your state rep (Denise Provost) and or your state senator (Pat Jehlen). They can help you with filing a complaint with the state ethics commission and ask for an investigation concerning Foster (another large property owner in this city) and O'Donovan. Also, contact Bill Shelton he can give you information on how to proceed with a lawsuit against O'Donovan and this project. Finally, call your aldermen and complain. Keep calling Sean at his business in Ball Sq and his home. Call the at large aldermen both at home and where they work

JPM

I hope this informs the Craigie street people about an appeal:

18A Mass. Prac., Municipal Law and Practice § 17.64 (5th ed.)

Massachusetts Practice Series TM
Current through the 2008 Pocket Part

Municipal Law and Practice
Douglas A. Randall[FNa0], Douglas E. Franklin[FNa1], Pocket Part by Douglas E. Franklin

Chapter 17. Zoning Ordinances and Bylaws
G. Judicial Review


§ 17.64. Judicial review—Generally

West's Key Number Digest

Wests Key Number Digest, Zoning and Planning 561, 569, 588


Legal Encyclopedias


C.J.S., Zoning and Land Planning §§ 265, 300, 304

Any person aggrieved[FN1] by a decision of the board of appeals or any special permit granting authority, or by the failure of the board of appeals to take final action concerning any appeal, application or petition within the required time, or by the failure of any special permit granting authority to take final action concerning any application for a special permit within the required time, whether or not previously a party to the proceeding, or any officer or board,[FN2] may appeal to:

• the land court department, or
• the superior court department in which the land concerned is situated, or
• if the land is situated in Hampden County, either to the land court, superior court department, or to the division of the housing court department for the county, or
• if the land is situated in a county, region or area served by a division of the housing court department either to the land court, superior court department or to the division of the housing court department for the county, region or area, or
• to the division of the district court department within whose jurisdiction the land is situated, except in Hampden county.
• The action must be brought within twenty days after the decision has been filed in the office of the city or town clerk.[FN3]

“Aggrieved person” status is a jurisdictional prerequisite.[FN4] Unless brought by a municipal officer or board, a court has jurisdiction to consider a zoning appeal only if it is taken by an aggrieved person.[FN5]
The term “person aggrieved” should not be construed narrowly.[FN6]
Although abutters and abutters to abutters enjoy a presumption of aggrieved person status,[FN7] the presumption is rebuttable. Once a defendant in an appeal challenges the plaintiff's standing and offers evidence to support the challenge, the jurisdictional issue is to be decided on the basis of evidence with no benefit to the plaintiff from the presumption. The plaintiff then has the burden of proof on the issue of standing.[FN8]
It is not enough simply to raise the issue of standing in a zoning proceeding. The challenge must be supported by evidence.[FN9]
A review of standing based on “all the evidence” does not require that the factfinder ultimately find a plaintiff's allegations meritorious. To do so would be to deny standing, after the fact, to any unsuccessful plaintiff. Rather, the plaintiff must put forth credible evidence to substantiate his allegations. Standing then, becomes essentially a question of fact for the trial judge.[FN10]
A plaintiff challenging a decision of the zoning board of appeals makes a plausible claim of particularized injury, requisite to standing to challenge board's decision, by producing credible evidence of that injury.[FN11]
Two refinements of the standard of “credible evidence” have developed.[FN11.5] First, it demands proof of more than speculative injury.[FN11.10] Second, it does not demand proof of the ultimate merits of the plaintiff's allegations of harm.[FN11.15]
A plaintiff must offer evidence of a plausible claim of a definite violation of a private right, a private property interest, or a private legal interest that is different from that suffered by the community generally.[FN12]
Although the magnitude of the threat of harm to a potential plaintiff in relation to the threat of harm from a use permissible as of right is a factor that may be considered in determining whether the plaintiff has standing, it is not dispositive of the standing issue.[FN13]
A general civic interest in the enforcement of zoning laws is not enough to confer standing.[FN14]
The interest must be one that the applicable regulatory scheme recognizes.[FN14.5]
Generally, concerns about the visual impact of a structure do not suffice to confer standing.[FN15]
A defined protected interest, however, may impart standing to a person whose impaired interest falls within that definition.[FN16]
Whether an individual is aggrieved is a question of fact for the trial judge,[FN16.5] which should not be reversed unless clearly erroneous.[FN16.10]
The recognition of a plaintiff's standing provides no support to the evidence or ultimate merits of the complaint. The determination of standing operates entirely separate from the adjudication of the claim.[FN16.15]
Notice of the action with a copy of the complaint must be given to the city or town clerk so as to be received within such twenty days. The complaint shall allege that the decision exceeds the authority of the board or authority, and any facts pertinent to the issue, and shall contain a prayer that the decision be annulled. There shall be attached to the complaint a copy of the decision appealed from, bearing the date of filing, certified by the city or town clerk.[FN17]
Receipt of notice by a city or town clerk is a prerequisite which the courts have “policed in the strongest way” and given “strict enforcement.”[FN18]
Failures in meeting the twenty-day deadline are not forgiven.[FN19]
The purpose of the notice provision is to give interested third persons at least constructive notice of the appeal. Strict compliance with all the details of the notice provision is not required, so long as notice adequate to serve the purpose of the provision is given within the period limited.[FN20] It is the state of the clerk's knowledge, not the physical location of the papers, that controls.[FN21]
As a matter of law, it was not reasonable for counsel to rely on the statement of a clerk of the board for a determination of the last day for completing the procedural requirements for initiating an appeal from the board's decision.[FN22]
If the complaint is filed by someone other than the original applicant, appellant or petitioner, the original applicant, appellant, or petitioner and all members of the board of appeals or special permit granting authority shall be named as parties defendant with their addresses.[FN23]
The court shall require nonmunicipal plaintiffs to post a surety or cash bond in a sum of not less than two thousand nor more than fifteen thousand dollars to secure the payment of costs in appeals of decisions approving subdivision plans.[FN24]
To avoid delay in the proceedings, instead of the usual service of process, the plaintiff shall, within fourteen days after the filing of the complaint, send written notice of such filing, with a copy of the complaint, by delivery or certified mail to all defendants, including the members of the board of appeals or special permit granting authority and shall, within twenty-one days after the entry of the complaint file with the clerk of the court an affidavit that such notice has been given. The complaint will be dismissed if no affidavit is filed within such time. No answer is required, but an answer may be filed and notice of such filing with a copy of the answer and an affidavit of such notice given to all parties within seven days after the filing of the answer. Other persons may be permitted to intervene, upon motion.[FN25]
This remedy will be exclusive, notwithstanding any defect of procedure or of notice other than notice by publication, mailing or posting, and the validity of any action shall not be questioned for matters relating to defects in procedure or of notice in any other proceedings except with respect to such publication, mailing, or posting and then only by a proceeding commenced within ninety days after the decision has been filed in the office of the city or town clerk, but the parties shall have all rights of appeal and exception as in other equity cases.[FN26]
A complete failure to provide notice of public hearing warrants tolling of the limitations period for bringing a complaint alleging defects in procedure. [FN26.5]
Zoning relief granted constructively is not beyond judicial review.[FN27]
The statutory appeal procedure must be followed if applicable. Neighbors, who had a right of appeal from the action of a municipal council acting as a board of appeals, could not successfully maintain a petition for a writ of certiorari.[FN28]
Where property owner aggrieved by the denial of an occupancy permit failed to appeal to the zoning board of appeals, they waived their right to seek judicial review.[FN29]
Where there has been a formal board decision, a special permit applicant cannot avoid the requirements of M.G.L.A. c. 40A merely by framing his challenge as a request for a declaratory judgment.[FN30]
The statutorily required submission of zoning disputes to local authority is so central to the architecture of the zoning act that courts have required the exhaustion of administrative remedies as a prerequisite to judicial review.[FN31] Principles of exhaustion require that a person aggrieved by action of a local zoning administrator, the building inspector in most municipalities, must first attempt to redress the grievance through the local board of appeals before seeking judicial review.[FN32]
Plaintiffs cannot be deprived of their statutory right to seek review in the Superior Court by virtue of the existence of possible alternative remedies.[FN33]
Declaratory relief may not be had in zoning appeal cases.[FN34] Reference of zoning cases to masters are discouraged.[FN35]
Appeals from District Court determinations are to be brought before the Appeals Court. The Appellate Division of the District Courts does not have jurisdiction.[FN36]
If the decision of a board of appeals is not sustained in the superior court, the board has a right of appeal to the Supreme Judicial Court.[FN37]
Ordinarily, a conventional planning dispute, at least where not tainted with fundamental procedural irregularity, racial animus, or the like, does not implicate the United States Constitution.[FN38]
Due process or equal protection claims are very seldom the means of review of the actions of land use agencies, with the door only slightly ajar for relief in “truly horrendous situations.”[FN39]
An automobile dealer's failure to timely appeal a zoning board's order denying it a special permit to extend its parking lot did not deprive the superior court of jurisdiction over the dealer's appeal from the building inspector's subsequent order that the dealer's parking of “business related” cars on the residentially zoned parking lot constituted illegal use.[FN40]
The court is under a duty to note and decide a jurisdictional question, regardless of the point at which it is first raised, and whether any party has raised it.[FN41]
While zoning decisions are likely to have some impact on a condominium's common area, this does not preclude unit owners from protecting their own interests.[FN42]


[FNa0] Of The Massachusetts Bar.


[FNa1] Of The Massachusetts Bar.

--------------------------------------------------------------------------------

[FN1] A person owning property close to and in the same district as that of the property for which a variance is sought is an “aggrieved person.” See Vainas v. Board of Appeals of Lynn, 337 Mass. 591, 150 N.E.2d 721 (1958).
In Reynolds v. Board of Appeal of Springfield, 335 Mass. 464, 140 N.E.2d 491 (1957), it was held that the owner of adjoining property, even though located in another zoning district, was a “person aggrieved.”
Owner of property “affected by” grant of variance (notice provisions) was “person aggrieved” with standing to challenge grant. Rafferty v. Sancta Maria Hospital, 5 Mass.App.Ct. 624, 367 N.E.2d 856 (1977).
A corporation organized after the grant of a special permit but before the expiration of the 20–day appeal period which purported to be the successor of a committee organized to oppose the development is not a “person aggrieved”. Amherst Growth Study Committee, Inc. v. Board of Appeals of Amherst, 1 Mass.App.Ct. 826, 296 N.E.2d 717 (1973).
Where only visible interest of plaintiffs in contesting decision of city council granting special permit was protection of existing motel facilities from competition, none of plaintiffs was a “person aggrieved”, nor was it enough that either plaintiff might have had a general civic interest in enforcement of the zoning ordinance. Waltham Motor Inn, Inc. v. LaCava, 3 Mass.App.Ct. 210, 326 N.E.2d 348 (1975).
In order to be deemed a “person aggrieved”, one must demonstrate that his legal rights have been infringed. See Circle Lounge & Grille, Inc. v. Board of Appeal of Boston, 324 Mass. 427, 86 N.E.2d 920 (1949). Person is “aggrieved” if such person has possible claim of definite violation of private right resulting from administrative decision.
See Green v. Board of Appeals of Provincetown, 26 Mass.App.Ct. 469, 529 N.E.2d 159 (1988), judgment reversed 404 Mass. 571, 536 N.E.2d 584 (1989), discussion of persons “aggrieved” and historic right of citizens generally to force municipal zoning enforcement officers to enforce zoning laws.
Tenant in building for which zoning variance was granted to allow subdivision of building into four townhouses was not a person aggrieved by granting of variance where he did not assert ownership of land in the neighborhood and possible future injury to tenant under rent control ordinance did not suffice to make him a person aggrieved under the zoning ordinance. Reeves v. Board of Zoning Appeal of Cambridge, 16 Mass.App.Ct. 1011, 455 N.E.2d 447 (1983).
There is a rebuttable presumption that abutting property owners entitled to receive notice of public hearing before zoning board of appeals were “persons aggrieved.” Paulding v. Bruins, 18 Mass.App.Ct. 707, 470 N.E.2d 398 (1984).
Neighborhood residents who made written request for enforcement of zoning bylaw in an effort to stop allegedly unlawful construction from going forward under color of building permit became “aggrieved persons” by reason of inability to obtain enforcement action when building inspector denied their request, and thus, after residents complied with jurisdictional steps, Superior Court had jurisdiction over appeal. Vokes v. Avery W. Lovell, Inc., 18 Mass.App.Ct. 471, 468 N.E.2d 271 (1984), review denied 393 Mass. 1103, 470 N.E.2d 798 (1984).
Neighbors of landowner whose site plan was denied by board of appeals were not “aggrieved” since they opposed landowner's project and thus were presumably benefitted by decision; it was not aggrievement, sufficient for statute, that applicants would have liked board of appeals to find additional faults with site under zoning bylaw. Prudential Insurance Company of America v. Board of Appeals of Westwood, 18 Mass.App.Ct. 632, 469 N.E.2d 501 (1984).
There is no per se rule that a tenant or long-term resident can never have standing to challenge grant of a zoning variance. See Quimby v. Zoning Bd. of Appeals of Arlington, 19 Mass.App.Ct. 1005, 476 N.E.2d 241 (1985). The fact that an original plaintiff may not have had standing or presumptive standing is not a sufficient reason for denying an amendment to allow substitution of parties who had standing.
Although a trial judge is not to construe the words “person aggrieved” narrowly, the plaintiff bears the burden of proof, aggrievement is a matter of degree, and the variety of circumstances which may arise seems to call for the exercise of discretion rather than the imposition of an inflexible rule. See Rafferty v. Sancta Maria Hospital, 5 Mass.App.Ct. 624, 367 N.E.2d 856 (1977).
A nursing home which operated as a nonconforming use in a general residential district, lacked standing to challenge city zoning board of appeal which granted permission to owner of property adjacent to nursing home to change nonconforming use from a hospital to a correctional facility since nursing home had no legitimate interest in preserving integrity of the district as a residential one. Sherrill House, Inc. v. Board of Appeal of Boston, 19 Mass.App.Ct. 274, 473 N.E.2d 716 (1985), review denied 394 Mass. 1103, 477 N.E.2d 595 (1985).
The Court indicated in Sherrill House, 19 Mass.App.Ct. at 277, 473 N.E.2d at 718, that it read Reynolds v. Board of Appeal of Springfield, 335 Mass. 464, 140 N.E.2d 491 (1957) and Vainas v. Board of Appeals of Lynn, 337 Mass. 591, 150 N.E.2d 721 (1958) as two cases establishing a narrow exception to the Circle Lounge and Grille, Inc. case. The Court indicated that the two cases go no further than to recognize that one who owns property in a residential district, which property either in part, or in some relatively minor way, is nonconforming, and who uses the property for residential purposes, may be viewed as an aggrieved person for purposes of objecting to zoning changes in his residential district because, by reason of his residential use he has a cognizable interest in preserving the residential character of the district. In Circle Lounge & Grille, Inc. v. Board of Appeal of Boston, 324 Mass. 427, 86 N.E.2d 920 (1949), the court ruled that a proprietor in a less restricted zone is not a person aggrieved within the meaning of the statute by the introduction into a more restricted zone of any use permitted in the zone in which the proprietor's property is located.
An abutter entitled to receive notice of public hearing before a zoning board of appeals on variance application is presumed to be a person aggrieved and entitled to appeal from board's decision granting a variance. Gordon v. Zoning Bd. of Appeals of Lee, 22 Mass.App.Ct. 343, 494 N.E.2d 14 (1986), review denied 398 Mass. 1103, 497 N.E.2d 1096 (1986). That presumption is rebuttable. Fact that it would be necessary to clear and improve part of abutter's right of way in order for party seeking variance to put in proposed driveway and that such improvement might benefit the abutter was insufficient to rebut presumption that abutter had standing to appeal. See also Marotta v. Board of Appeals of Revere, 336 Mass. 199, 143 N.E.2d 270 (1957).
Property owners who were abutters to abutters of property for which nonconforming use of apartment building was sought and whose property was located in same zoning district were “aggrieved persons” with standing to appeal decision of board of appeals that granted special permit to allow conversion of inn to apartment building. Murray v. Board of Appeals of Barnstable, 22 Mass.App.Ct. 473, 494 N.E.2d 1364 (1986). The court indicated that it was not necessary for the judge to determine that all of the plaintiffs had standing. The fact that only one of the plaintiffs was an aggrieved person would be sufficient to permit an appeal from the board's decision.
Abutting landowner enjoys a presumption of being person aggrieved, but evidence may be offered to rebut presumption. In such a case, the trial judge is required to decide the issue of abutting landowner's standing to challenge variances and conditional use permits granted on basis of all evidence without any benefit of presumption. See Bedford v. Trustees of Boston University, 25 Mass.App.Ct. 372, 518 N.E.2d 874 (1988) abutting landowner had standing.
Individual or corporate property owners acquire standing by asserting a plausible claim for a definite violation of a private right, a private property interest, or a private legal interest. Harvard Square Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass.App.Ct. 491, 540 N.E.2d 182 (1989), review denied 405 Mass. 1204, 542 N.E.2d 602 (1989), citizen groups, individuals and member of city council who expressed concern about diminished open space and other aesthetic views did not establish possible claim of definite violation of private right or property or legal interest affected by grant of special permits sufficient to bring them within zone of standing. A corporation has standing to challenge grant of special permits only if it establishes some harm to a corporate legal right. A mere statement of corporate purpose which expresses general civic interest in enforcement of zoning laws or preservation of property affected by special permit is not enough to confer standing.
Rear-yard abutter whose view would be blocked if property owners were granted variance to develop lot had standing, as an “aggrieved party”. DiCicco v. Berwick, 27 Mass.App.Ct. 312, 537 N.E.2d 1267 (1989).
Restaurant's allegation that it was an abutter and that proposed project would be built in violation of applicable side yard setback requirement adequately alleged that it was “aggrieved” by grant of special permit to give it standing to challenge city council's action. Cummings v. City Council of Gloucester, 28 Mass.App.Ct. 345, 551 N.E.2d 46 (1990), reviewed denied 407 Mass. 1102, 554 N.E.2d 851 (1990).
Local property owners may assert legal interest in preventing further construction in a district in which existing development is already more dense than applicable zoning regulation allows, even if owners' own use is similarly nonconforming. Tsagronis v. Board of Appeals of Wareham, 33 Mass.App.Ct. 55, 596 N.E.2d 369 (1992), review granted 413 Mass. 1104, 600 N.E.2d 171 (1992) and judgment rev'd 415 Mass. 329, 613 N.E.2d 893 (1993), adjoining owners were persons aggrieved, with standing to contest construction on undersized lot.
A trial judge's findings of aggrieved person status are entitled to deference. Paulding v. Bruins, 18 Mass.App.Ct. 707, 709, 470 N.E.2d 398, 399 (1984).


[FN2] M.G.L.A. c. 40A, § 17. A city or town may provide any officer or board with independent legal counsel for appealing a decision of a board of appeals or special permit granting authority, and for taking such other subsequent action as parties are authorized to take.
Planning board a proper party. David v. Board of Appeals of Reading, 333 Mass. 657, 132 N.E.2d 386 (1956).
A city council may qualify as a person aggrieved for the purpose of appealing a decision of the board of appeals. See M.G.L.A. c. 40A, § 17 and City Council of Waltham v. Vinciullo, 364 Mass. 624, 307 N.E.2d 316 (1974).
A person is not “aggrieved” because zoning relief granted may result in business competition. Redstone v. Board of Appeals of Chelmsford, 11 Mass.App.Ct. 383, 416 N.E.2d 543 (1981). Bank located across street from property which was to be leased to a competing bank was not person aggrieved.
Member of city council not a municipal officer entitled to appeal decision of board of appeals. Carr v. Board of Appeals of Medford, 334 Mass. 77, 134 N.E.2d 10 (1956).
A planning board may delegate to its engineer and to the city solicitor the duty of making the decision to appeal. No formal vote of the board was necessary. See Planning Board of Springfield v. Board of Appeals of Springfield, 338 Mass. 160, 154 N.E.2d 349 (1958).
Members of “Harvard Square Advisory Committee” which was unincorporated citizens advisory group without traditional governmental powers, were not “municipal officers” and thus lacked standing to challenge grant of special permits. Harvard Square Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass.App.Ct. 491, 540 N.E.2d 182 (1989), review denied 405 Mass. 1204, 542 N.E.2d 602 (1989). City councillor who joined suit challenging grant of special permits for construction of office retail buildings was not municipal officer with “duties to perform in relation to the building code or zoning” and thus lacked standing to challenge grant of permits, even though in his capacity as city councillor he voted on amendments to zoning ordinance and served on ordinance committee of the city council.
Any municipal officer or board may appeal a decision of a zoning board of appeals without showing that its interests are harmed by the decision. M.G.L.A. c. 40A, § 17. See Harvard Square Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass.App.Ct. 491, 493, 540 N.E.2d 182, 184 (1989).
Standing is granted only to municipal officers or boards that have duties to perform in relation to the building code or zoning within the same town as the subject land. Planning Bd. of Marshfield v. Zoning Bd. of Appeals of Pembroke, 427 Mass. 699, 695 N.E.2d 650 (1998), planning board lacked standing to obtain review of zoning board decision of adjacent town.


[FN3] M.G.L.A. c. 40A, § 17.
If the appeal is made to the division of the district court department, any party has the right to file a claim for trial of the appeal in the superior court department within twenty-five days after service on the appeal is completed. Such a claim is subject to such rules as the supreme judicial court may prescribe.
There is no requirement that a pleading recite the basis of the court's jurisdiction. Erroneous citation of M.G.L.A. c. 41, § 81BB as jurisdictional basis of action instead of M.G.L.A. c. 40A, § 17 was not decisive. Twomey v. Board of Appeals of Medford, 7 Mass.App.Ct. 770, 390 N.E.2d 272 (1979).
An appeal may be filed before the decision is recorded with the city or town clerk if the decision has actually been reached by the board. Tanzilli v. Casassa, 324 Mass. 113, 85 N.E.2d 220 (1949). The appeal was filed two days before the decision was recorded and was not premature.
Party may seasonably file a complaint seeking judicial review of a constructively granted variance or special permit before a copy of the decision has been filed with the city or town clerk. Girard v. Board of Appeals of Easton, 14 Mass.App.Ct. 334, 439 N.E.2d 308 (1982).
In the City of Boston, every person appealing from a decision of the board of appeal of Boston shall file a bond with sufficient surety, to be approved by the court, for such sum as shall be fixed by the court, to indemnify and save harmless the person or persons in whose favor the decision was rendered from all damages and costs which he or they may sustain in case the decision of the board is affirmed. St.1956, c. 665, § 11.
Bond requirement in City of Boston designed to discourage frivolous and vexatious appeals from decisions of the board, a condition which might not be found in comparable degree in other counties. McNeely v. Board of Appeal of Boston, 358 Mass. 94, 261 N.E.2d 336 (1970).
Zoning board of appeal could not extend time for appeal from its decision by filing its decision late. Elder Care Services, Inc. v. Zoning Bd. of Appeals of Hingham, 17 Mass.App.Ct. 480, 459 N.E.2d 832 (1984). The court indicated that the cases which construe M.G.L.A. c. 40A, §§ 9 and 15 as requiring the filing as well as the making of a decision within the statutory time limits point to the importance of the need to limit the period during which an appeal may be taken.
Disappointed parties involved in land use disputes alleging violations of their rights of due process and equal protection may not invoke federal jurisdiction pursuant to 42 U.S.C.A. § 1983. Raskiewicz v. Town of New Boston, 754 F.2d 38 (1st Cir.1985), certiorari denied 474 U.S. 845, 106 S.Ct. 135, 88 L.Ed.2d 111 (1985), charges of bias, bad faith and other approbrious epithets of malice do not make inoperable the general rule prohibiting ordinary land disputes from being litigated under § 1983. The court left open the possibility that claims of “actual corruption”, if serious enough and well supported, could make out a due process claim under § 1983.
Timely commencement of the appeal in the Superior Court is a condition of maintaining it, a “condition sine qua non”, and is a requirement the court polices in the strongest way. See Pierce v. Board of Appeals of Carver, 369 Mass. 804, 343 N.E.2d 412 (1976).
See St.1956, c. 665, § 11 requiring that persons aggrieved by board decisions in the City of Boston shall file a bond with sufficient surety for a sum fixed by the court to indemnify the person or persons in whose favor the decision was rendered from all damages and costs which he or they may sustain in case the decision of the board is affirmed. See Bonan v. Board of Appeal of Boston, 21 Mass.App.Ct. 678, 489 N.E.2d 1018 (1986), review denied 397 Mass. 1102, 492 N.E.2d 98 (1986) discussing reasonable bond requirement.
Landowners were not denied due process of law when they were not sent copy of zoning board of appeal's decision, even though they failed to file appeal within 20 days of the board's decision, where they were aware of the action and had attended and been represented by counsel. Cappuccio v. Zoning Bd. of Appeals of Spencer, 398 Mass. 304, 496 N.E.2d 646 (1986). Under the circumstances presented, the court indicated that it was not a denial of due process to impose upon the plaintiffs the responsibility to inquire periodically of the town clerk whether the board's decision had been filed.
Having failed to take a timely appeal from the planning board's action in granting the special permit with conditions, the plaintiff did not have the right to challenge the validity of the condition in a proceeding which, regardless of its form, was the equivalent of an appeal. Klein v. Planning Bd. of Wrentham, 31 Mass.App.Ct. 777, 778, 583 N.E.2d 892, 893 (1992).
Property owner's complaint for judicial review of decision of zoning board of appeals was untimely, and thus the Superior Court was without jurisdiction to entertain the appeal. Bonfatti v. Zoning Bd. of Appeals of Holliston, 48 Mass.App.Ct. 46, 716 N.E.2d 1063 (1999).


[FN4] A court has jurisdiction to consider a zoning appeal only if it has been brought by a person with “standing”, that is, by a person who has been “aggrieved” by a board's decision. Green v. Board of Appeals of Provincetown, 404 Mass. 571, 574, 536 N.E.2d 584, 586 (1989).
The issue of standing is said to be “jurisdictional” in the sense that the plaintiff's status as an “aggrieved person” is an essential prerequisite to judicial review under M.G.L.A. c. 40A, § 17. See Cohen v. Zoning Bd. of Appeals of Plymouth, 35 Mass.App.Ct. 619, 620, 624 N.E.2d 119, 120–121 (1993). It has been suggested that the existence of standing may be considered by the court at any stage of the case, including on appeal, whether or not disputed by the parties. See Nickerson v. Zoning Bd. of Appeals of Raynham, 53 Mass.App.Ct. 680, 761 N.E.2d 544 (2002), landowner was not “person aggrieved”.


[FN5] A lack of standing may be raised at any point in a litigation, including after adjudication on the merits and during appeal, if the record shows lack of standing as a matter of law. See e.g., Marotta v. Board of Appeals of Revere, 336 Mass. 199, 203, 143 N.E.2d 270, 273 (1957).
Watros v. Greater Lynn Mental Health and Retardation Ass'n, Inc., 421 Mass. 106, 107, 653 N.E.2d 589, 590 (1995). Green v. Board of Appeals of Provincetown, 404 Mass. 571, 572, 536 N.E.2d 584, 585 (1989).
A showing of more than a general civic interest in the enforcement of the zoning ordinance is required. Murray v. Board of Appeals of Barnstable, 22 Mass.App.Ct. 473, 476, 494 N.E.2d 1364, 1366 (1986).
Neighboring property owner, a foreign limited liability corporation who was not registered with the Secretary of State (M.G.L.A. c. 156C, § 54) at the time of zoning dispute, had standing to appeal a decision of the board of zoning appeals. Cottone v. Cedar Lake LLC, 67 Mass.App.Ct. 464, 854 N.E.2d 456 (2006).


[FN6] Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719, 722, 660 N.E.2d 369, 372 (1996). The Supreme Judicial Court declined to adopt a rule that would require a plaintiff to show a substantial likelihood of harm greater than that which would result from use of the property permissible as of right.
Abutting property owner was “aggrieved person” where building was located closer than planned to plaintiff's property line, building was eleven percent larger than the one first proposed, and a noisy air conditioner cooling tower located near the plaintiff's property. Chambers v. Building Inspector of Peabody, 40 Mass.App.Ct. 762, 667 N.E.2d 895 (1996).
An owner's status as a condominium unit owner did not bar his challenge to zoning decision. Bernstein v. Chief Building Inspector, 52 Mass.App.Ct. 422, 754 N.E.2d 133 (2001).
Persons who qualify as “parties in interest” under M.G.L.A. c. 40A, § 11 are entitled to a presumption of standing under M.G.L.A. c. 40A, § 17. Watros v. Greater Lynn Mental Health & Retardation Ass'n, Inc., 421 Mass. 106, 110, 653 N.E.2d 589, 592 (1995).
Board's speculation that trustee did not have authority to act on behalf of trust in entering into agreement to sell lot was insufficient to rebut presumption that applicant had standing to appeal board's decision. Marinelli v. Board of Appeals of Stoughton, 440 Mass. 255, 797 N.E.2d 893 (2003).
Grounds for landowners' objections, which included increased noise, increased artificial light, decreased backyard privacy, and environmental implications, related directly to objectives of density regulation. Bertrand v. Board of Appeals of Bourne, 58 Mass.App.Ct. 912, 790 N.E.2d 704 (2003), landowner had standing to challenge grant of variance.


[FN7] Watros v. Greater Lynn Mental Health and Retardation Ass'n, Inc., 421 Mass. 106, 653 N.E.2d 589 (1995), landowners were aggrieved persons with standing to challenge permit.
Abutters to land were aggrieved persons absent evidence controverting presumption of aggrievement. See Marotta v. Board of Appeals of Revere, 336 Mass. 199, 204, 143 N.E.2d 270, 273 (1957).


[FN8] Marotta v. Board of Appeals of Revere, 336 Mass. at 204, 143 N.E.2d at 273; Waltham Motor Inn, Inc. v. LaCava, 3 Mass.App.Ct. 210, 217, 326 N.E.2d 348, 353 (1975).
Bedford v. Trustees of Boston University, 25 Mass.App.Ct. 372, 376, 518 N.E.2d 874, 876 (1988).
In a multiple party appeal, it is only necessary to determine whether any one plaintiff is aggrieved in order to determine the standing issue. See Murray v. Board of Appeals of Barnstable, 22 Mass.App.Ct. 473, 476, 494 N.E.2d 1364, 1366 (1986).
Property owner not in same zoning district failed to establish standing. Riley v. Janco Central, Inc., 38 Mass.App.Ct. 984, 652 N.E.2d 631 (1995).
A party who does not own or occupy property in the same zoning district as the property receiving a variance or special permit may nevertheless establish standing by a showing of a plausible claim of a definite violation of a private right, property interest, or legal interest. Harvard Square Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass.App.Ct. 491, 493, 540 N.E.2d 182, 184 (1989).
See discussion of aggrievement practice in Watros v. Greater Lynn Mental Health and Retardation Ass'n, Inc., 421 Mass. 106, 108–09, 653 N.E.2d 589 (1995).


[FN9] Valcourt v. Zoning Bd. of Appeals of Swansea, 48 Mass.App.Ct. 124, 718 N.E.2d 389 (1999), landowners failed to rebut presumption that abutters had standing to appeal board's decision.


[FN10] Property owners had standing based on fear of increased traffic and decreased parking availability. Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719, 660 N.E.2d 369 (1996).
Landowners whose property abutted proposed site for mobile home park had status of “person aggrieved”; proposed use would have negative impact on landowners' property from increase in pedestrian traffic resulting from use of land as beach area, and landowners had paid legal fees. Cox v. Board of Appeals of Carver, 42 Mass.App.Ct. 422, 677 N.E.2d 699 (1997).
See Bedford v. Trustees of Boston University, 25 Mass.App.Ct. 372, 377, 518 N.E.2d 874, 877 (1988).
Abutters had standing to challenge variances based on concerns about effect on traffic on 12–foot wide road. Choate v. Zoning Bd. of Appeals of Mashpee, 67 Mass.App.Ct. 376, 853 N.E.2d 1089 (2006).


[FN11] See Butler v. City of Waltham, 63 Mass.App.Ct. 435, 827 N.E.2d 216 (2005), homeowners failed to produce credible evidence of particularized injury. Quantitatively, the evidence must provide specific factual support for each of the claims of particularized injury the plaintiff has made. Qualitatively, the evidence must be of a type on which a reasonable person could rely to conclude that the claimed injury likely will flow from the board's action. Conjecture, personal opinion, and hypothesis are insufficient. 63 Mass.App.Ct. 435, 441, 827 N.E.2d 216.


[FN11.5] See Sweenie v. Planning Bd. of Groton, 69 Mass. App. Ct. 477, 482, 868 N.E.2d 1237 (2007), review granted, 449 Mass. 1112, 874 N.E.2d 407 (2007).


[FN11.10] Tsagronis v. Board of Appeals of Wareham, 415 Mass. 329, 335, 613 N.E.2d 893 (1993).
See Sweenie v. Planning Bd. of Groton, 69 Mass. App. Ct. 477, 482, 868 N.E.2d 1237 (2007), review granted, 449 Mass. 1112, 874 N.E.2d 407 (2007) (allegation of increased artificial light, loss of privacy, volume of traffic, traffic noise and heightened risk to pedestrian safety were insufficient to show standing).


[FN11.15] Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719, 721, 660 N.E.2d 369 (1996).


[FN12] See Bell v. Zoning Bd. of Appeals of Gloucester, 429 Mass. 551, 554, 709 N.E.2d 815, 817 (1999); Harvard Square Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass.App.Ct. 491, 493, 540 N.E.2d 182, 185 (1989).
Alleged violations of building code and abutter's fire safety concerns did not give abutter standing to challenge variance, as building code and zoning laws had different purposes and procedures. Rinaldi v. Board of Appeal of Boston, 50 Mass.App.Ct. 657, 741 N.E.2d 77 (2001).
Although landowner complained of increased traffic due to store's expansion, property was about a mile from store with several intervening intersections. Landowner's interest was not substantially different from that of other community members. Nickerson v. Zoning Bd. of Appeals of Raynham, 53 Mass.App.Ct. 680, 761 N.E.2d 544 (2002).
The evidence must be more than unsubstantiated claims or speculative personal opinions. See Monks v. Zoning Bd. of Appeals of Plymouth, 37 Mass.App.Ct. 685, 688, 642 N.E.2d 314, 315–316 (1994).
Owner who sought review of decision allowing construction of a communications tower and related facilities on a nearby property was not a “person aggrieved”. Denneny v. Zoning Bd. of Appeals of Seekonk, 59 Mass.App.Ct. 208, 794 N.E.2d 1269 (2003).
Impact of proposed construction on owner's building was sufficiently perceptible and personal harm to qualify them as “aggrieved persons”. McGee v. Board of Appeal of Boston, 62 Mass.App.Ct. 930, 819 N.E.2d 975 (2005), diminishment of light and air, and obstruction of view may be basis for aggrieved person status.
Allegations of general, aesthetic concern in respect to the impairment of the natural and undeveloped environment and claims of harm to the value of their properties were insufficient to confer standing on abutter. Choate v. Zoning Bd. of Appeals of Mashpee, 67 Mass.App.Ct. 376, 853 N.E.2d 1089 (2006).


[FN13] Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719, 660 N.E.2d 369 (1996), property owners had standing based on fear of increased traffic and decreased parking availability.


[FN14] Harvard Square Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass.App.Ct. 491, 495, 540 N.E.2d 182, 185–186 (1989).


[FN14.5] See Circle Lounge & Grille v. Board of Appeal of Boston, 324 Mass. 427, 430–31, 86 N.E.2d 920 (1949).
Diminution in value of an abutter's commercial real estate was an injury to a specific interest that the zoning scheme's frontage requirement was intended to protect. Central Street, LLC v. Zoning Bd. of Appeals of Hudson, 69 Mass. App. Ct. 487, 868 N.E.2d 1245 (2007) (evidence sufficient to establish standing).


[FN15] See Harvard Square Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass.App.Ct. 491, 493, 540 N.E.2d 182, 185 (1989).


[FN16] See Monks v. Zoning Bd. of Appeals of Plymouth, 37 Mass.App.Ct. 685, 688–689, 642 N.E.2d 314, 316 (1994) (visual).
See Martin v. Corporation of Presiding Bishop, 434 Mass. 141, 747 N.E.2d 131 (2001), landowner abutting property on which church sought to build a tall steeple on temple had standing (visual).
See Sweenie v. Planning Bd. of Groton, 69 Mass. App. Ct. 477, 482, 868 N.E.2d 1237 (2007), review granted, 449 Mass. 1112, 874 N.E.2d 407 (2007) (water contamination).
Abutters had standing under by-law based on concerns about risk of water safety by replacement of underground gasoline storage tanks. Sweenie v. Planning Bd. of Groton, 69 Mass. App. Ct. 477, 868 N.E.2d 1237 (2007), review granted, 449 Mass. 1112, 874 N.E.2d 407 (2007).


[FN16.5] Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719, 721, 660 N.E.2d 369 (1996).


[FN16.10] Paulding v. Bruins, 18 Mass.App.Ct. 707, 709, 470 N.E.2d 398 (1984). See Sheehan v. Zoning Bd. of Appeals of Plymouth, 65 Mass.App.Ct. 52, 836 N.E.2d 1103 (2005).


[FN16.15] See Sweenie v. Planning Bd. of Groton, 69 Mass. App. Ct. 477, 485, 868 N.E.2d 1237 (2007), review granted, 449 Mass. 1112, 874 N.E.2d 407 (2007).


[FN17] M.G.L.A. c. 40A, § 17.
See Del Grosso v. Board of Appeal of Revere, 330 Mass. 29, 110 N.E.2d 836 (1953).
Citing Carey v. Planning Board of Revere, 335 Mass. 740, 745, 139 N.E.2d 920, 923 (1957), the court held that failure of the plaintiff to give notice of his appeal to the town clerk within twenty days of the filing of the board's decision with the clerk rendered his appeal void. See Lincoln v. Board of Appeals of Framingham, 346 Mass. 418, 193 N.E.2d 590 (1963).
See also Maria v. Board of Appeal of Lowell, 348 Mass. 798, 206 N.E.2d 94 (1965), and Bjornlund v. Zoning Board of Appeals of Marshfield, 353 Mass. 757, 231 N.E.2d 365 (1967).
Richardson v. Zoning Board of Appeals of Framingham, 351 Mass. 375, 221 N.E.2d 396 (1966), photostat of copy of decision acceptable.
However, an appeal was held timely filed where a copy of the bill in equity was filed with the town clerk within twenty days although the town clerk was not advised that the bill had been filed in the superior court. The court acted within its discretion in permitting the applicant for the variance to be joined as a party to the appeal, although the time for filing the appeal had run out. McLaughlin v. Rockland Zoning Board of Appeals, 351 Mass. 678, 223 N.E.2d 521 (1967).
Omission of date of filing of board's decision from the town clerk's certificate did not deprive court of jurisdiction. Halko v. Board of Appeals of Billerica, 349 Mass. 465, 209 N.E.2d 323 (1965).
Proof that notice and complaint were mailed to town clerk in envelope with return address and it had never been returned was insufficient to show service in view of town clerk's affidavit stating that notice had never been received. Nightingale v. Board of Appeals of Methuen, 7 Mass.App.Ct. 887, 386 N.E.2d 1064 (1979).
Where only notice sent of complaint seeking review of decision of board of appeals was addressed to board, required notice could not be claimed to have been received by town clerk. Pasqualino v. Board of Appeals of Wareham, 14 Mass.App.Ct. 989, 440 N.E.2d 523 (1982).
Superior Court had jurisdiction to entertain amended complaint, even though adjoining landowner's original complaint was filed more than twenty days after the date when the board constructively granted the petition. Noe v. Board of Appeals of Hingham, 13 Mass.App.Ct. 103, 430 N.E.2d 853 (1982).
In absence of written notice, landowner's telephone notice of intent to appeal board's decision was nugatory, as it put nothing in record by which interested parties would be forewarned that zoning status of land was still in question. County of Norfolk v. Zoning Board of Appeals of Walpole, 16 Mass.App.Ct. 930, 450 N.E.2d 628 (1983).


[FN18] See Konover Mgmt. Corp. v. Planning Bd. of Auburn, 32 Mass.App.Ct. 319, 322–323, 588 N.E.2d 1365, 1367 (1992).
Defendant failed to perfect his appeal when he did not file notice of his appeal with town clerk; Superior court lacked jurisdiction over the zoning appeal. Town of Uxbridge v. Griff, 68 Mass. App. Ct. 174, 860 N.E.2d 972 (2007).


[FN19] See Costello v. Board of Appeals of Lexington, 3 Mass.App.Ct. 441, 442, 333 N.E.2d 210, 211 (1975); O'Blenes v. Zoning Bd. of Appeals of Lynn, 397 Mass. 555, 558, 492 N.E.2d 354, 356 (1986).


[FN20] Costello v. Board of Appeals of Lexington, 3 Mass.App.Ct. 441, 443, 333 N.E.2d 210, 212 (1975). See also McLaughlin v. Rockland Zoning Bd. of Appeals, 351 Mass. 678, 680, 223 N.E.2d 521, 522 (1967).
Guided by these principles, the Supreme Judicial Court has held that the statutory requirement of notice to the town clerk has been satisfied by providing the clerk with only notice of the action but not a copy of the complaint, Carr v. Board of Appeals of Saugus, 361 Mass. 361, 362, 280 N.E.2d 199, 200 (1972); by providing the clerk with only a copy of the complaint but not formal notice of action, McLaughlin v. Rockland Zoning Bd. of Appeals, 351 Mass. 678, 679–680, 223 N.E.2d 521, 522–523 (1967); and by delivering notice of action and a copy of the complaint to the clerk at her home after the close of the clerk's office on the twentieth day, Garfield v. Board of Appeals of Rockport, 356 Mass. 37, 39, 247 N.E.2d 720, 721 (1969). Contrast Norfolk County v. Zoning Bd. of Appeals of Walpole, 16 Mass.App.Ct. 930, 450 N.E.2d 628 (1983), telephoning the clerk within the twenty-day period to express an intent to appeal the board's decision is insufficient.


[FN21] Developer appealing denial of special permit to build shopping mall adequately satisfied jurisdictional prerequisite of serving notice of appeal on town clerk's office, though no formal notice was ever physically filed in clerk's office, where clerk was aware that developer had commenced judicial review action and that papers reflecting that action lay in file a few feet from clerk's office. Konover Mgmt. Corp. v. Planning Bd. of Auburn, 32 Mass.App.Ct. 319, 588 N.E.2d 1365 (1992). The court indicated that the decision in Konover should not be taken to imply that it condoned the procedural misstep. “Strict compliance with § 17 is not an undue burden. . . . Double-checking the accomplishment of such jurisdictional and potentially outcome-determinative matters appears to do well within the duty of competence which a lawyer, as a fiduciary, owes to the client—a duty that cannot be delegated without proper supervision and control.”
Appeal was untimely. Bingham v. City Council of Fitchburg, 52 Mass.App.Ct. 566, 754 N.E.2d 1078 (2001). Appeal was filed in mayor's office 15 minutes after town clerk's office had closed, and clerk had no notice of appeal until the next morning.


[FN22] Counsel had an obligation to determine the date on which the board's decision was filed, and he was bound to take notice of the statutory requirements. See O'Blenes v. Zoning Bd. of Appeals of Lynn, 397 Mass. 555, 492 N.E.2d 354 (1986), Superior Court was without jurisdiction to entertain appeal from decision of board of appeals if notice of appeal was not filed in clerk's office within twenty days after filing of board's decision.


[FN23] M.G.L.A. c. 40A, § 17.
The failure of an appellant to name certain members of the board as defendants has been held not fatal to the appeal. It was appropriate for the court to allow a motion to correct the formal defect by including the omitted members. See Ladd v. Board of Appeals of Malden, 352 Mass. 777, 226 N.E.2d 360 (1967).
See Cuzzi v. Board of Appeals of Medford, 2 Mass.App.Ct. 887, 318 N.E.2d 842 (1974), where motion to amend bill in equity to include individual who was granted variance as a defendant was treated as a matter of discretion rather than as a matter of law.
“Original applicant, appellant, or petitioner” focuses on a party's status at the proceedings before the board of appeals. “Original applicant” means the person who applied to the board of appeals for a special permit. “Original appellant” refers to the person who appeals from a decision of a local administrative official to the zoning board of appeals. “Original petitioner” means the person who filed a petition for variance with the board of appeals. See Butts v. Zoning Bd. of Appeals of Falmouth, 18 Mass.App.Ct. 249, 464 N.E.2d 108 (1984), neighbor was original appellant before zoning board of appeals and therefore, was a necessary party defendant in the action for judicial review.
Trial court did not abuse its discretion in allowing abutting landowners to amend their complaint to name applicant as party, despite applicant's assertion that it had relied on flawed state of pleadings in going forward with purchase of land. Cox v. Board of Appeals of Carver, 42 Mass.App.Ct. 422, 677 N.E.2d 699 (1997).
See McLaughlin v. Rockland Zoning Bd. of Appeals, 351 Mass. 678, 683, 223 N.E.2d 521, 524 (1967), under prior law, not materially different in content, late joinder of original applicant permitted by court where no material delay resulted in the prosecution of the appeal.


[FN24] M.G.L.A. c. 40A, § 17.


[FN25] M.G.L.A. c. 40A, § 17. The clerk of the court will give notice of the hearing as in other cases without jury to all parties whether or not they have appeared.
Where an affidavit of notice has not been filed, rather than destroy the action, the sanction has been left to the discretion of the judge. Pierce v. Board of Appeals of Carver, 369 Mass. 804, 343 N.E.2d 412 (1976).
The key issue is whether the defendants were prejudiced and in the absence of prejudice, a dismissal of the complaint is not required. See, Raia v. Board of Appeals of North Reading, 4 Mass.App.Ct. 318, 347 N.E.2d 694 (1976); City Council of Waltham v. Board of Appeals of Waltham, 5 Mass.App.Ct. 773, 359 N.E.2d 651 (1977); Mele v. Zoning Bd. of Appeals of Milford, 5 Mass.App.Ct. 779, 360 N.E.2d 639 (1977); Shaugnnessy v. Board of Appeals of Lexington, 357 Mass. 9, 255 N.E.2d 367 (1970).
Failure to attach copy of decision to complaint served upon each defendant was not such an essential deficiency as to require dismissal of suit. Opie v. Board of Appeals of Groton, 349 Mass. 730, 212 N.E.2d 477 (1965). See also Carr v. Board of Appeals of Saugus, 361 Mass. 361, 280 N.E.2d 199 (1972).
Failure to file affidavit that notice has been given to original party and all board members does not amount to a jurisdictional defect but failure to give notice to all defendants does. Curcio v. Russo, 3 Mass.App.Ct. 730, 326 N.E.2d 30 (1975).
Failure to file affidavit of notice not fatal where “constructive” notice furnished by service of city clerk in hand with copy of complaint and actual notice, although untimely, given to all board members. Twomey v. Board of Appeals of Medford, 7 Mass.App.Ct. 770, 390 N.E.2d 272 (1979).
Language used recognizes that in passing even on interventions “of right” there is an element of discretion. Prudential Insurance Co. of America v. Board of Appeals of Westwood, 18 Mass.App.Ct. 632, 469 N.E.2d 501 (1984).
Plaintiffs not entitled to default judgment and judgment on the pleadings on ground that town failed to file answer to complaint. Mantoni v. Board of Appeals of Harwich, 34 Mass.App.Ct. 273, 609 N.E.2d 502 (1993). No answer was required for the appeal from the denial of a variance.
Statute requires that notice be sent; statute does not require proof of receipt. Fifield v. Board of Zoning Appeal of Cambridge, 450 Mass. 1001, 875 N.E.2d 838 (2007) (neighbor satisfied statutory requirements for providing notice to trustee of action for judicial review).


[FN26] M.G.L.A. c. 40A, § 17.
See Lacharite v. Board of Appeals of Lawrence, 327 Mass. 417, 99 N.E.2d 66 (1951), in which it was held that the merits of a decision of the board of appeals, not appealed from within the appeal period, were not open in a subsequent proceeding involving the validity of building permits issued by the building inspector pursuant to such decision.
Under provision in existence prior to 1975 revision, Superior Court had jurisdiction to hear appeal from district court's dismissal of appeal from zoning board action on basis that plaintiffs were not “aggrieved” persons. Planning Bd. of Taunton v. Zoning Bd. of Appeals of Taunton, 5 Mass.App.Ct. 770, 359 N.E.2d 633 (1977).
Vote of city council granting a special permit was not subject to a referendum petition. Jordan v. City Clerk of Northampton, 14 Mass.App.Ct. 916, 436 N.E.2d 446 (1982).
Statutory appeal procedure could not be ignored even though town zoning board of appeals was claiming that constructive grant of the permit was not authorized. Elder Care Services, Inc. v. Zoning Board of Appeals of Hingham, 17 Mass.App.Ct. 480, 459 N.E.2d 832 (1984).
Apartment builder's complaint structured as a declaratory judgment action which challenged validity of statute and ordinance relied on by board in requiring builder to operate ten percent of proposed units for elderly and low-income housing as condition of special permit was an “appeal” to superior court of decision of special permit granting authority and therefore, barred as beyond superior court's jurisdiciton and untimely by statute which provides that exclusive remedy is appeal to superior court within twenty days after filing of decision in office of clerk. Iodice v. Newton, 397 Mass. 329, 491 N.E.2d 618 (1986).
The ninety day period for appeals from orders of zoning board of appeals based on procedural defects applies only to actions alleging invalidity of action by the board due to defects in procedure or notice with respect to the public hearing and does not encompass appeals based on defects of notice in mailing of the decision of the board. Cappuccio v. Zoning Bd. of Appeals of Spencer, 398 Mass. 304, 496 N.E.2d 646 (1986).


[FN26.5] See Kramer v. Zoning Bd. of Appeals of Somerville, 65 Mass.App.Ct. 186, 837 N.E.2d 1147 (2005), where no notice has been provided, the ninety day statute of limitations does not begin to run until the aggrieved party becomes aware of the project to which he objects.


[FN27] Girard v. Board of Appeals of Easton, 14 Mass.App.Ct. 334, 439 N.E.2d 308 (1982), constructively granted variance from dimensional requirements was without factual support and would be annulled.


[FN28] Clap v. Municipal Council of City of Attleboro, 310 Mass. 605, 39 N.E.2d 431 (1942).
In Massachusetts Feather Co. v. Aldermen of Chelsea, 331 Mass. 527, 120 N.E.2d 766 (1954), the aggrieved party incorrectly appealed from a decision of the inspector of buildings to the board of aldermen, when it should have appealed to the board of appeals. Certiorari was not therefore available to the aggrieved party to quash the order of the board of aldermen which was without jurisdiction to act and whose order was a nullity.


[FN29] Balcam v. Town of Hingham, 41 Mass.App.Ct. 260, 669 N.E.2d 461 (1996), matter did not fall into any exception to exhaustion of administrative remedies rule.


[FN30] Colangelo v. Board of Appeals of Lexington, 407 Mass. 242, 552 N.E.2d 541 (1990), property owners did not qualify as “persons aggrieved” by decision of board and did not fall within scope of statute providing for appeals.
See Iodice v. Newton, 397 Mass. 329, 333, 491 N.E.2d 618, 621 (1986) (“The present action is no less an appeal under M.G.L.A. c. 40A, § 17, because it takes the form of a M.G.L.A. c. 231A declaratory judgment action”).


[FN31] See William C. Bearce Corp. v. Building Inspector of Brockton, 11 Mass.App.Ct. 930, 931, 416 N.E.2d 509, 509 (1981); McDonald's Corp. v. Seekonk, 12 Mass.App.Ct. 351, 353, 424 N.E.2d 1136, 1137 (1981).


[FN32] See M.G.L.A. c. 40A, §§ 8, 13, 14 and 17; Neuhaus v. Building Inspector of Marlborough, 11 Mass.App.Ct. 230, 415 N.E.2d 235 (1981).


[FN33] Suit seeking review of zoning board's grant of variance and special permit improperly dismissed on ground plaintiffs could fully litigate identical issues by intervening in land court action commenced by owner under M.G.L.A. c. 240, § 14A. Twomey v. Board of Appeals of Medford, 7 Mass.App.Ct. 770, 390 N.E.2d 272 (1979).
Where application of bylaw was being challenged in two separate proceedings, one in the Land Court under M.G.L.A. c. 185, § 1(j 1/2) and the other an appeal under M.G.L.A. c. 40A, § 17 from the decision of the board of appeals denying the special permit, the trial judge should consider seeking, through the Chief Administrative Justice of the Trial Court, consolidation of the two actions even if the parties themselves do not apply to do so. See Shea v. Danvers, 21 Mass.App.Ct. 996, 490 N.E.2d 806 (1986).


[FN34] Tahanto Associates, Inc. v. Board of Appeals of Bourne, 346 Mass. 762, 190 N.E.2d 87 (1963). But see M. Dematteo Construction Co. v. Board of Appeals of Hingham, 3 Mass.App.Ct. 446, 334 N.E.2d 51 (1975), where Appeals Court states that since St.1973, c. 1114, § 4 lists zoning appeals as “civil actions”, it appears that declaratory relief may be granted under M.G.L.A. c. 231A if requested in the complaint.
See Balcam v. Town of Hingham, 41 Mass.App.Ct. 260, 669 N.E.2d 461 (1996), matter did not fall into any exception to exhaustion of administrative remedies rule.


[FN35] See Garelick v. Board of Appeals of Franklin, 350 Mass. 289, 214 N.E.2d 60 (1966).


[FN36] Walker v. Board of Appeals of Harwich, 388 Mass. 42, 445 N.E.2d 141 (1983). This determination of jurisdiction is to be applied prospectively only.


[FN37] See Cefalo v. Board of Appeal of Boston, 332 Mass. 178, 124 N.E.2d 247 (1955).
See Iverson v. Board of Appeals of Dedham, 14 Mass.App.Ct. 951, 437 N.E.2d 572 (1982), exhibits referred to in board's brief were not properly before court and Appeals Court declined to exercise its power to refer to exhibits.


[FN38] Error by a zoning board was regrettable, but not federally actionable in and of itself. Creative Environments, Inc. v. Estabrook, 680 F.2d 822 (1st Cir.1982), cert. denied 459 U.S. 989, 103 S.Ct. 345, 74 L.Ed.2d 385 (1982). See Chongris v. Board of Appeals of Town of Andover, 811 F.2d 36 (1st Cir.1987), cert. denied 483 U.S. 1021, 107 S.Ct. 3266, 97 L.Ed.2d 765 (1987), revocation of building permit did not deny applicants procedural due process or constitute taking of property.


[FN39] Freeman v. Planning Bd. of West Boylston, 419 Mass. 548, 560–561, 646 N.E.2d 139, 147 (1995) cert. denied 516 U.S. 931, 116 S.Ct. 337, 133 L.Ed.2d 235 (1995); Nestor Colon Medina & Sucesores, Inc. v. Custodio, 964 F.2d 32, 45 (1st Cir.1992).
M.G.L.A. c. 40A affords adequate administrative and judicial remedies for errors in administration of zoning law. Wyman v. Zoning Bd. of Appeals of Grafton, 47 Mass.App.Ct. 635, 715 N.E.2d 459 (1999).


[FN40] York Ford, Inc. v. Building Inspector and Zoning Administrator of Saugus, 38 Mass.App.Ct. 938, 647 N.E.2d 85 (1995). The automobile dealer was not barred, on grounds of issue preclusion, from appealing the building inspector's order that the dealer's parking of “business related” cars on the residentially zoned parking lot constituted illegal use.


[FN41] Karbowski v. Bradgate Assocs., Inc., 25 Mass.App.Ct. 526, 527, 520 N.E.2d 504, 505 (1988).
Contrast Hogan v. Hayes, 19 Mass.App.Ct. 399, 402–403, 474 N.E.2d 1158, 1160–1161 (1985), building inspector's failure to respond in writing to a zoning enforcement request, although statutorily required, was an insignificant jurisdictional defect not necessitating sua sponte judicial attention.
A property owner's appeal from a decision of the zoning board of appeals affirming the building inspector's denial of a building permit for a lot within cluster development was actually an appeal from planning board's previous decision to approve special permit for cluster development on condition that there only be two buildable lots, and thus, property owner's complaint for judicial review, filed one year after planning board's decision was untimely and Superior Court was without jurisdiction to entertain the appeal. Bonfatti v. Zoning Bd. of Appeals of Holliston, 48 Mass.App.Ct. 46, 716 N.E.2d 1063 (1999).


[FN42] An owner's status as a condominium unit owner did not bar his challenge to zoning decision. Bernstein v. Chief Building Inspector, 52 Mass.App.Ct. 422, 754 N.E.2d 133 (2001).
Decisions have recognized condominium units and common areas to be adjacent parcels of land. See McEneaney v. Chestnut Hill Realty Corp., 38 Mass.App.Ct. 573, 577, 650 N.E.2d 93, 97 (1995). See 39 Joy St. Condominium Ass'n v. Board of Appeal of Boston, 426 Mass. 485, 488 n.6, 688 N.E.2d 1363, 1366 n.6 (1998), allowing neighboring unit owners independently to seek and appeal variances.


© 2008 Thomson Reuters/West

18A MAPRAC § 17.64

END OF DOCUMENT

Ironsides

you left out "does not apply in Somerville Massachusetts" !!

Imux

Good lord, it's gotten to the point where a guy can't even build in this city without some nuts claming some nonesense. Development is good for the city. The only winners when the lawsuits fly are the lawyers, so use your heads, folks. If you want a piece of the American dream just work hard and buy some property yourselves, but don't knock anyone who wants to make a buck. If something amiss happened here then vote Sean out, but don't hold up progress.

Somerville n00b

Nobody knocks anyone who wants to make an HONEST buck.

Bill Shelton

Contrary to prior propaganda, I don't go around inciting lawsuits. Nevertheless, I am bowled over by JPM's comprehensive reporting. I would never have been able to direct folks to this.

MD

I live in Cambridge, but I'm impressed by this spike of civic activism (not used in a derogatory sense). People of Craigie St, please rise and show these individuals how to behave. If you don't do this now, you will always be stepped on like garbage. File an appeal, get things moving.

The Mole

To Diogenes: Yes!!! Those were the words of the ex-Superintendent of Inspectional Services during his transition from ISD to project manager for the Capuano School. National Development team member Sherry C. then, now Senior Staff member with the same company, was told by Mike F. if you contribute to the list of charitable organizations you will have your 7 permits issued by the new ISD Superintendent.

What she did not know is that Pat S. played by the code and not by what she was promised by the Ex-super. She was, to say the least, irate and stormed out with expletives you would think she was a truck driver. Yes, National Development got screwed. But did she?

Look at what National Development did over at the Landing in Wellington Circle. What a fine development project that turned out to be. It isn’t a strip mall but it has all the amenities one could ask for in a project like that. Mixed use, housing and a beautiful site.

Pat S. could not be bought out by any developer or Administration. He was a straight shooter and when push came to shove, Mayor Kelly-Gay had the SPD go to his house and collect the keys to his City Vehicle and issue his termination papers. This was not for Assembly Square but another project that was being held up due to neighbor resentment as to how a parcel of land was going to be developed. I believe the City Solicitor at the time, Sue C; not the current one, overrode Pat S decision and issued the permits to help move along that particular project.

This is the way in the “Ville”. Always has been, always will be unless the citizens are tired of getting colonescopy every other week. Take it to the polls on Election Day and YOU MAKE THE CALL. Change the dirty blood that is flowing freely at City Hall.

The Mole

Diogenes

Thanks for fleshing this out, Mole. I see that HL Menken has also put up some more interesting information about his particular story under the article, "Applying the Lessons of Assembly Square."

City Hall Nose

To Diogenes: on another note that Pat S stood his ground was when the then Alderman at large Curtatone and Ward 1 WR approached a complex behind Assembly Square Mall and wanted then Pat S. to close both eyes and issue permits for the Boxing Club to move into this facility with violations when they were without a home. I underston the importance of geting the boxing club back up and running but to try to bypass safety, did no one any good. Luckily Pat S did not.

The Mole

Somerville n00b

Yeah, right, everybody understands the importance of getting the boxing club back... Oh my, what would our society do without boxing clubs to make the little people feel like they still have an upper mobility chance? There would be a revolution with all the unused testosterone! :-)

William Hurst

Imux,
As a property owner how much more development would you like to see in this city? How many more people would you like to see living here? Is a population of 85,000 to little for your own taste?

Crooks of a Feather

Herb aka Butch I stole $500,000 from MSUD and OD... I am so fat and greedy I cannot get enough... are what Somerville had tried but cannot move away from under the master Crooks ... Koty and Curtatone...

I am glad Donald Norton is exposing these crooks.
Only one with balls in Somerville. Keep up the good work.

Diffuse

Residents city wide need to understand that their neighborhoods aren't the only neighborhoods under assault from unscrupulous developers, get informed, band together and knock these criminals on their rear ends!

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