WALTHAM MOTOR INN, INC. & others [Note 1] vs. ANTHONY LACAVA & others [Note 2] (and a companion case [Note 3]).

GRANT, J. These are two bills in equity by which the remaining plaintiffs named therein [Note 4] seek to challenge separate decisions of the city council of Waltham (council) by which the council granted special permits (see G. L. c. 40A, Section 4) for the construction and operation of a hotel and a "hotel/motel," respectively, in a limited commercial zoning district. Both bills purport to be brought under G. L. c. 40A, Section 21. [Note 5] The defendants in each bill filed a "plea in bar" which asserted, in effect, that none of the plaintiffs was a "person aggrieved" within the meaning of Section 21. [Note 6] The pleas were heard together on statements and agreements of counsel. The judge made findings, ruled that none of the remaining plaintiffs in either bill was a person aggrieved within the meaning of Section 21, and entered interlocutory decrees sustaining both pleas. The remaining plaintiffs have appealed from those decrees and from final decrees dismissing the bills.

The remaining plaintiffs in the first case seek to challenge the council's grant in 1969 of a special permit to the trustees of Paino-LaCava Realty Trust for the construction and operation of a hotel on a parcel known as 380 Winter Street. [Note 7] The remaining plaintiffs in the first case

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are Waltham Motor Inn, Inc., Ralph and Arthur Gilbert (the Gilberts), and one Aaron Soltes. The target in the second case is the council's grant in 1973 of a special permit to the trustees of P and L Realty Trust for the construction and operation of a hotel/motel on a parcel known as 420 Totten Pond Road. The remaining plaintiffs in the second case are Waltham Motor Inn, Inc. and one Richard D. Olen. [Note 8]

Waltham Motor Inn, Inc., a corporation, is, and at all material times has been, the lessee from Paino-LaCava Realty Trust of the parcel and buildings known as 372 Winter Street. The buildings on this parcel consist of a hotel or motel (Holiday Inn) which was built pursuant to a variance obtained by the trust from the board of appeals in 1961 and which, since the inception of the lease, has been operated by the corporation. The lease from the trust to the corporation contains several options in the corporation to renew for various periods, and the parties have characterized the lease as one for ninety-nine years. The corporation was not given written notice of either of the public hearings held by the council on the applications for the special permits in question (see G. L. c. 40A, Section 17), [Note 9] but its counsel appeared at both hearings and opposed both applications.

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The Gilberts have been the owners since 1968, either as partners or as trustees of Winter Street Trust, of the parcel and buildings known as 385 Winter Street. The buildings consist of a motel operated by the Gilberts which was originally known as Charter House but is now known as Waltham Motor Inn. [Note 10] The Gilberts were given written notice by the council of the public hearing held on the application for the special permit granted in the first case. The second case has been argued on the footing that the Gilberts received no such notice of the hearing held in that case. Their counsel appeared in opposition to the applications in both cases.

The parcels known as 372, 380 and 385 Winter Street and the one known as 420 Totten Pond Road all lie within the same Limited Commercial district, in which "hotels, motels . . . [and] hotel/motels" are authorized by the zoning ordinance (art. XII, Section 21-26) if a special permit is obtained from the council. The plaintiff Soltes owns a residence at 15 Cedar Hill Lane in Waltham, which is at least a mile distant from the parcel at 380 Winter Street and lies in a Residential A-3 zoning district. The plaintiff Olen owns a residence at 73 Totten Pond Road in Waltham, which is a mile distant from the parcel at 420 Totten Pond Road and lies in a Residential A-2 district.

Although it has been said that "[t]he words `person aggrieved' in such statutes as c. 40A, Section 21, are not to be narrowly construed" (Marotta v. Board of Appeals of Revere, 336 Mass. 199, 204 [1957]), the only case which enunciates specific guidelines for identifying a "person aggrieved" is Circle Lounge & Grille, Inc. v. Board of Appeal of Boston, 324 Mass. 427 (1949), in which it was held under a counterpart of the present Section 21 that a proprietor in a less restricted zone is not aggrieved by the introduction into a more restricted zone of a use permitted in the zone in which the proprietor's property is located. That case

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rejected the notion that a statutory provision such as Section 21 affords an owner a "private right in the enforcement of zoning regulations" (324 Mass. at 431), requires a private party claiming to be aggrieved by a decision of a board of appeals [Note 11] to demonstrate that he is "one whose legal rights have been infringed" (324 Mass. at 430), and determined that a private party is not "aggrieved within the meaning of the statute . . . merely because a variance [Note 12] . . . will increase competition in business" (324 Mass. at 430).

A review of the cases in which there has been occasion to determine whether a private party is a "person aggrieved" within the meaning of c. 40A, Section 21, reveals that in the absence of any specific evidence on the question whether a particular plaintiff has a legal right which has been infringed, the court has relied either on what it has expressly characterized as a presumption or on various rules of reason which we think are also to be characterized as presumptions. Thus, it was expressly held in Marotta v. Board of Appeals of Revere, 336 Mass. 199, 204 (1957), that "there is a presumption that property owners to whom the board in the performance of its statutory obligation has sent notice as persons `deemed by the board to be affected thereby' [Note 13] have an interest and are persons aggrieved." A study of other cases discloses the existence of a presumption that a nearby owner of property lying in the same or in a substantially similar type of zoning district is a party aggrieved within the meaning of Section 21 (see Reynolds v. Board of Appeal of Springfield, 335 Mass. 464, 469, 470 [1957]; Colabufalo v. Board of Appeal of Newton, 336 Mass. 213,

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217 [1957]; Vainas v. Board of Appeals of Lynn, 337 Mass. 591, 591, 594 [1958]; Smith v. Board of Appeals of Plymouth, 340 Mass. 230, 231, 232 [1960]; compare Carey v. Planning Bd. of Revere, 335 Mass. 740, 742, 743-744 [1957] [decided under parallel provisions of G. L. c. 41, Section 81BB]; Building Inspector of Acton v. Board of Appeals of Acton, 348 Mass. 453, 457 [1965]) and the absence of any such presumption when nothing more appears than that the plaintiff is a resident or the owner of property lying somewhere in the municipality (see Bradshaw v. Board of Appeals of Sudbury, 346 Mass. 558, 560 [1963]; compare Carey v. Planning Bd. of Revere, 335 Mass. 740, 744 [1957]).

But even where a presumption exists, it must be placed in its proper perspective. "If the issue is contested, and any additional evidence is offered, the point of jurisdiction will be determined on all the evidence with no benefit to the plaintiffs from the presumption as such." Marotta v. Board of Appeals of Revere, 336 Mass. 199, 204 (1957). And, as was said in the Marotta case, "[t]he status of the property or of the plaintiffs may be such that the plaintiffs are not aggrieved even though the property is very near" (p. 203).

With these principles in mind we return to the statements and agreements of counsel which have been summarized above concerning the status of each of the principal plaintiffs in these two cases.

The parcel leased to Waltham Motor Inn, Inc. (372 Winter Street) abuts (see sketch) the parcels for which special permits were granted in both cases (380 Winter Street and 420 Totten Pond Road). If we treat that corporation as the owner of 372 Winter Street (see n. 9), then, on the authorities cited above, there is a presumption from such proximity that that plaintiff is a "person aggrieved" by both decisions of the council. The parcel owned by the Gilberts (385 Winter Street) abuts the parcel for which a special permit was granted in the first case (380 Winter Street), and consequently there is a like presumption with

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respect to the Gilberts in the first case. [Note 14] However, as the Marotta case teaches (336 Mass. at 204), those presumptions and the weight to be accorded them must be examined and determined in the light of all the evidence which bears on the interests of those plaintiffs in contesting the decisions in question. There is nothing in the record to suggest that the granting of either permit would result in a diminution in the value of the interest which any of those plaintiffs owns or controls in the real estate located at 372 or 385 Winter Street. Contrast Carey v. Planning Bd. of Revere, 335 Mass. 740, 743-744 (1957). None of those plaintiffs, each of whom has the benefit of a variance or a special permit to operate a motel in the limited commercial district, can have any legitimate interest in preserving the integrity of the district from the introduction of further like uses. The only visible interest of any of those plaintiffs in contesting either or both of the decisions is the protection of existing motel facilities from the anticipated effects of business competition.

The judge found as matter of fact that such was the interest of each in contesting the decisions and, on the authority of the Circle Lounge & Grille case (324 Mass. at 429-430), ruled that none of those plaintiffs was a "person aggrieved" within the meaning of G. L. c. 40A, Section 21. We see no error in the pertinent findings. Although, as we have said, each of those plaintiffs was entitled to the benefit of a presumption that he or it was aggrieved, the issue was contested, additional evidence was offered, and "the point of jurisdiction . . . [had to be] determined on all the evidence with no benefit to the plaintiffs from the presumption as such." Marotta case, at 204. The judge's findings were not plainly wrong. We ourselves would have reached

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the same conclusions on the statements and agreements of counsel. Compare Weinstein v. Green, 347 Mass. 580, 581 (1964).

There was no error in the determinations that Soltes and Olen were not parties aggrieved in the first and second cases, respectively. Neither of those plaintiffs was entitled to the benefit of any presumption in his favor, and neither offered any evidence on the jurisdictional point. [Note 15] It was not enough that either of them might have had a general civic interest in the enforcement of the zoning ordinance. Amherst Growth Study Comm. Inc. v. Board of Appeals of Amherst, 1 Mass. App. Ct. 826 (1973).

The interlocutory decrees sustaining the pleas and the final decrees dismissing the bills are affirmed.

So ordered.