JAMES RAFFERTY & another vs. SANCTA MARIA HOSPITAL & others.

GOODMAN, J. This is an appeal by the Sancta Maria Hospital (hospital) from a judgment entered by a Superior Court judge pursuant to G. L. c. 40A, Section 21, [Note 1] annulling

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a decision of the board of appeal of Cambridge (board) which granted to the hospital variances necessary for the construction of a professional office building and parking garage at 799 Concord Avenue in Cambridge. The hospital is a nonconforming use located in a Residence B zoning district in the city of Cambridge. The facility it proposes to build is prohibited in Residence A and B districts but not elsewhere.

The board's decision was filed with the city clerk on October 21, 1974; and on November 11, 1974, one Richard Cahill and the Cambridge Highlands Neighborhood Association (association) appealed to the Superior Court praying that the board's decision be annulled. The hospital [Note 2] filed an answer and moved to dismiss on the ground (among others) that "[n]either plaintiff is aggrieved by the decision of the Board of Appeals." Thereupon on January 22, 1975, after hearing, the plaintiffs' motion to file an amended complaint was allowed. The amended complaint added a number of individuals as plaintiffs, including James Rafferty and William Wagner, the present appellees. The amended complaint alleges that Richard Cahill owns real estate lying "approximately 250 feet from the lot of defendant Sancta Maria Hospital" and that the association "is an unincorporated association of owners of real estate and residents living in close proximity to defendant Sancta Maria Hospital." The hospital filed an answer denying those allegations and alleging that "[n]one of the plaintiffs [is] aggrieved by the decision of the Board of Appeals." Subsequently, on January 28, 1975, the Superior Court remanded the case to the board "to make further subsidiary findings" and retained jurisdiction. On February 7, 1975, the board filed additional findings, and the case was tried on February 11 and February 13, 1975. The judge filed "Findings, Rulings and Order for Judgment" and entered a judgment annulling the decision of the board and dismissing

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the complaint as to all the plaintiffs except Rafferty and Wagner. This appeal followed.

The hospital argues that (1) the Superior Court had no jurisdiction to hear the appeal from the board since the initial plaintiffs had no standing, (2) the added plaintiffs are not "persons aggrieved," and (3) the statutory requisites for the granting of a variance were established by the evidence. 1. The major premise of the hospital's jurisdictional argument is the statement in Marotta v. Board of Appeals of Revere, 336 Mass. 199, 202-203 (1957), that [t]he Superior Court had no jurisdiction to consider the case unless an appeal . . . was taken by an aggrieved person." Its minor premise is that neither Cahill nor the association, the initial plaintiffs, was a "person aggrieved." From these the hospital asks us to conclude that the Superior Court had no power to allow the plaintiffs' motion to amend by adding Wagner and Rafferty as plaintiffs.

We accept the hospital's minor premise, since the motion to dismiss as against the two initial plaintiffs was properly allowed. Reliance cannot be placed upon the allegations in their complaint describing them and their interest, because those allegations were denied in the hospital's answer, which also raised the issue of the plaintiffs' standing. See Carey v. Planning Bd. of Revere, 335 Mass. 740, 744-745 (1957). Thus whatever presumption placing the burden of going forward upon the hospital might have arisen from the allegations in the complaint, had they not been denied, has no place in this case; nor was any attempt made to introduce evidence to sustain the plaintiffs' burden of proving standing. See discussion and cases collected in Waltham Motor Inn, Inc. v. LaCava, 3 Mass. App. Ct. 210, 213-215 (1975). [Note 3]

Though the action was properly dismissed as against the initial plaintiffs, that did not vitiate the prior amendment

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adding a party with standing. That the action before such an amendment was flawed does not necessarily preclude a curative amendment though the flaw is described as "jurisdictional." Pierce v. Board of Appeals of Carver, 369 Mass. 804, 810-811 (1976), discussing Shaughnessy v. Board of Appeals of Lexington, 357 Mass. 9 (1970), and pointing out that the court in the Shaughnessy case allowed the late joinder of a member of the board though the failure to give him timely notice was termed "jurisdictional." See Cuzzi v. Board of Appeals of Medford, 2 Mass. App. Ct. 887 (1974), following the Shaughnessy case. City Council of Peabody v. Board of Appeals of Peabody, 360 Mass. 867 (1971), is directly in point; the court in that case held that the Superior Court might allow a motion to substitute the mayor for the city council where the city council had no standing. Nor does it appear that this was considered a merely formal defect (cf. Board of Health of Woburn v. Sousa, 338 Mass. 547, 548 [1959]); the court pointed out that the Legislature had (St. 1969, c. 706) explicitly excluded from G. L. c. 40A, Section 21, any standing for a municipal board.

These cases evince a policy of broad powers of amendment -- "more liberal than elsewhere," Wadsworth v. Boston Gas Co., 352 Mass. 86, 88 (1967) -- which has characterized our practice. Particularly relevant is the familiar law that an amendment may be allowed which would bring in a party who, when added, would have been barred by a statute of limitations from commencing an independent action and, indeed, that this is a reason to permit the amendment. Wadsworth v. Boston Gas Co., 352 Mass. at 88. [Note 4]

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Walsh v. Curcio, 358 Mass. 819 (1971). Nor would the characterization of the limitation period as a "limitation upon the right as well as the remedy" appear to be significant. Bressler v. Averbuck, 322 Mass. 139, 144 (1947), citing as authority Peterson v. Cadogan, 313 Mass. 133, 134 (1943), which upheld the substitution of a defendant in a tort action, although the limitation period had run.

We do not find persuasive the hospital's contention that the new plaintiffs could become parties only by moving to intervene pursuant to the clause in G. L. c. 40A, Section 21, as amended through St. 1974, c. 78, Section 1, which provided that "[o]ther interested persons may be permitted to intervene, upon motion." (The hospital appears to concede that intervention under that unqualified provision would have been proper.) No issue concerning the applicability of the Massachusetts Rules of Civil Procedure was raised in the Superior Court at the hearing on the motion of the initial plaintiffs to amend, or otherwise. Further, the distinction in this case between a motion to intervene and a motion to amend by adding plaintiffs is purely formal, for it appeared at the hearing on the motion that it was being made with the consent of the added plaintiffs, who were thereafter represented by the same counsel as represented the initial plaintiffs. See Jones v. United Gas Improvement Corp. 68 F.R.D. 1, 5 (E.D.Pa. 1975); 6 Wright & Miller, Federal Practice and Procedure Section 1474, at 386 (1971) ("Finally, a party may make a Rule 15 (a) amendment to add, substitute, or drop parties to the action"). Whether we treat the new plaintiffs as parties added by an amendment which relates back to the original complaint or as interveners makes no difference in the circumstances of this case. Unless conditions have been imposed, "an intervenor in an action or proceeding is, for all intents and purposes, an original party." In re Raabe, Glissman & Co., Inc., 71 F. Supp. 678, 680 (S.D.N.Y. 1947). 7A Wright & Miller, Federal Practice and Procedure Section 1920, at 611 (1972). Further, in our practice prior to the new rules, intervention has been allowed though the original parties had no standing. Attorney Gen. v. Henry, 262 Mass. 127, 128-131 (1928). See

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Jacobson v. Parks & Recreation Commn. of Boston, 345 Mass. 641, 642-644 (1963).

Nor do we see any substantive reason to limit the broad amendment powers exercised under our practice so as not to apply where (as here) the original parties do not have standing. It is true that the intrusion of such parties may lead to harassment and complicate the litigation to the prejudice of an applicant for relief from the zoning laws. See Save the Bay, Inc. v. Department of Pub. Util., 366 Mass. 667, 672. However, whether a party is "aggrieved" is a matter of degree (see e.g., Carey v. Planning Bd. of Revere, 335 Mass. at 742; Williams v. Building Commr. of Boston, 1 Mass. App. Ct. 478, fn.1, 481 [1973]); and the variety of circumstances which may arise seems to call for the exercise of discretion rather than the imposition of an inflexible rule. No abuse of discretion has been shown in this case.

2. The hospital's attack on Rafferty's standing fails. The evidence indicates that Rafferty is either an abutter to the hospital or an abutter to such an abutter. In either case Rafferty's entitlement to notice as one of "the owners of all property . . . to be affected," pursuant to G. L. c. 40A, Section 17, as amended through St. 1973, c. 296, Section 2, [Note 5] furnishes a sufficient basis for the trial judge's finding that Rafferty is a "person aggrieved." Waltham Motor Inn, Inc. v. LaCava, 3 Mass. App. Ct. at 214, citing Marotta v. Board of Appeals of Revere, 336 Mass. at 204. The hospital presented no countervailing evidence that Rafferty could have no "legitimate interest in preserving the integrity of the district." See Waltham Motor Inn, Inc. v. LaCava, 3 Mass. App. Ct. at 217. Further, it appeared from Rafferty's testimony and the plan of the hospital and the surrounding neighborhood that he was a home owner at 74 Griswold

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Street in the same Residence B district in which the hospital is located. (Indeed the board's decision contains an admission that "the dwellings on Griswold Street are in a Residence B zone.") He was thus entitled to assert his interest in having the Residence B district in which he owns real estate and resides maintained as such. Reynolds v. Board of Appeal of Springfield, 335 Mass. 464, 470 (1957). See Carey v. Planning Bd. of Revere, 335 Mass. at 743; Shriners' Hosp. for Crippled Children v. Boston Redevelopment Authy., 4 Mass. App. Ct. 551, 555 (1976), further appellate review granted, 371 Mass. 899 (1976). [Note 6]

3. We now turn to the merits. At the end of the hospital's case the judge advised the parties that (accepting the hospital's evidence) "I do not find . . . from what I have heard, any conditions especially affecting this parcel that do not affect the zoning district generally." We cannot say that this finding, included, in effect, in his "Findings, Rulings and Order for Judgment," is clearly erroneous. [Note 7]

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None of the factors which the hospital lists in its brief is inconsistent with the judge's conclusion. There is no evidence that the topographical features mentioned by the hospital are peculiar to the locus. Cass v. Board of Appeal of Fall River, 2 Mass. App. Ct. 555 (1974). Contrast Broderick v. Board of Appeal of Boston, 361 Mass. 472, 477-478 (1972). Nor can the contiguity of the locus to an industrial zone or to the nonconforming hospital serve as a basis for a finding of unique conditions necessary to the variance. Coolidge v. Zoning Bd. of Appeals of Framingham, 343 Mass. 742, 745 (1962). Sullivan v. Board of Appeals of Belmont, 346 Mass. 81, 84 (1963). As the judge intimated and as was said in Coolidge v. Zoning Bd. of Appeals of Framingham, 343 Mass. at 746, "What the interveners seek in effect and what the board has granted is a change in the zone boundary. . . . It may well be . . . that . . . such a change would be beneficial to the community. This, however, is a matter for consideration by the [city] under procedures adopted for amendments to its zoning [ordinance]."

Judgment affirmed.