MISC 383791

April 23, 2009


Long, J.



Plaintiffs Mary and Linda Cannistra (mother and daughter) are the trustee (Mary) and a beneficiary (Linda) of Cincotta Investment Trust, the former owner of the property at 305 Bacon Street in Waltham. [Note 1] The property is part of “Piety Corner,” listed on the National Register of Historic Places, and contains a residence and garage alleged to be important to that area. [Note 2] Cincotta sold the property to the principals of defendant KHJ Development LLC, who they claim orally promised to preserve those buildings. That preservation, however, required a variance, which the Waltham Zoning Board of Appeals refused to grant based on its findings that the relevant criteria had not been met. [Note 3] Unless the board’s decision is reversed and the variance issued, the buildings may be demolished and a valuable community asset lost. [Note 4] The plaintiffs, who retain an emotional attachment to the buildings and a civic interest in their preservation, do not want this to happen.

Had this matter proceeded normally, KHJ (the rejected applicant) would have filed a timely G.L. c. 40A, § 17 appeal of the board’s decision and the plaintiffs would simply have been witnesses, interested observers, or both. However, KHJ did not appeal and the plaintiffs claim to have no means by which to compel KHJ to do so. In any event, the deadline for KHJ to file a G.L. c. 40A, § 17 appeal has passed. [Note 5] The plaintiffs themselves have no right to a G.L. c. 40A, § 17 appeal since they neither retained an interest in the property nor own any land affected by the variance denial and thus are not “person[s] aggrieved” by the board’s decision within the scope of the statute. Instead, they filed this action in the nature of certiorari “to correct errors…not otherwise reviewable by motion or by appeal” (G.L. c. 249, § 4), seeking this court’s review and reversal of the board’s decision. The board has moved for dismissal of the plaintiffs’ complaint for failure to state a claim upon which relief can be granted. Mass. R. Civ. P. 12(b)(6). [Note 6] The question thus presented is whether certiorari review is available in this situation, and whether the plaintiffs have a right to assert it if it does. As more fully set forth below, I find and rule that, as a matter of law, G.L. c. 40A, § 17 is the exclusive means by which a variance denial can be appealed and, in any event, the plaintiffs lack standing even if certiorari review was available. The plaintiffs’ claims are thus DISMISSED, in their entirety, with prejudice.

Requirements for Certiorari under G.L. c. 249, § 4

Actions in the nature of certiorari are governed by G.L. c. 249, § 4, whose “appropriate function is to relieve aggrieved parties from the injustice arising from errors of law committed in proceedings affecting their justiciable rights when no other means of relief are open.” Boston Edison Co. v. Board of Selectmen of Concord, 355 Mass. 79 , 83 (1968). “[T]he requisite elements for availability of certiorari are (1) a judicial or quasi-judicial proceeding; (2) a lack of all other reasonably adequate remedies; and (3) a substantial injury or injustice arising from the proceeding under review.” [Note 7] See also Fiske v. Bd. of Selectmen of Hopkinton, 354 Mass. 269 , 271 (1968) (“It is the general rule that resort cannot be had to certiorari unless the action of the tribunal of which a review is sought has resulted in substantial injury or manifest injustice to the petitioner”).

The board’s decision arose from a quasi-judicial proceeding. Walker v. Bd. of Appeals of Harwich, 388 Mass. 42 , 49 n. 6 (1983) (zoning board of appeals is an “administrative or quasi-judicial tribunal”). But there remain the issues of whether there was “a lack of all other reasonably adequate remedies” to review that decision and whether the decision caused “a substantial injury or injustice” to the Cannistras.

Other “Reasonably Adequate Remedies” Exist

Certiorari is only available when no other reasonably adequate remedy exists. Here, the remedy sought is a review of the denial of a variance from the requirements of a zoning ordinance. Zoning is governed by statute (G.L. c. 40A). The right and limitations on obtaining a variance are governed by statute (G.L. c. 40A, § 10), and so are the substantive and procedural requirements for appealing a variance decision (G.L. c. 40A, § 17). And both the statute and caselaw make clear that the review provisions of G.L. c. 40A, § 17 are exclusive. G.L. c. 40A, 17 (“the foregoing remedy shall be exclusive”); Smith v. Bd. of Appeals of Plymouth, 340 Mass. 230 , 232 (1960).

For present purposes, the important part of G.L. c. 40A, § 17 is its limitation on who can bring such actions — only “person[s] aggrieved” by the decision at issue. To be such a person, a plaintiff must show, by credible evidence which is “more than unsubstantiated claims or speculative personal opinions,” that the board’s decision “will cause tangible harm that is personal to her, or that her concerns are different from those of the general community.” Denneny v. Zoning Bd. of Appeals of Seekonk, 59 Mass. App. Ct. 208 , 212, 215 (2003). Moreover, the interests alleged to be harmed must be ones protected by the zoning act, and these do not include “subjective” concerns such as aesthetic deterioration or emotional attachment. See id. at 213. If a plaintiff is not a “person aggrieved” within the scope of G.L. c. 40A, § 17 — if, as the caselaw characterizes it, she lacks “standing” — a court has no jurisdiction to hear her claims and they must be dismissed. Id. at 209, 211.

The plaintiffs did not retain an interest in the property denied the variance, do not own any neighboring properties, and have neither alleged nor shown any tangible harms to them as opposed to the community at large. Thus, as they concede, they have no standing to bring an action under G.L. c. 40A, § 17. See Harvard Square Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491 , 495 (1989). The legislature has deliberately excluded persons, such as the plaintiffs, who are not “aggrieved” within the meaning of G.L. c. 40A, § 17 from challenging variance decisions. Lincoln v. Bd. of Appeals of Framingham, 346 Mass. 418 , 420 (1963) (statutory remedy exclusive; to hold otherwise would “circumvent the clear intent of [the] statute”). Since the G.L. c. 40A, § 17 remedy is exclusive, certiorari is not available. See G.L. c. 40A, 17; Smith v. Bd. of Appeals of Plymouth, 340 Mass. 230 , 232 (1960).

Even If Certiorari Review Was Available, Plaintiffs Lack Standing to Assert It

Certiorari review exists only for persons who have suffered “a substantial injury or injustice from the proceeding under review.” Boston Edison Co., 355 Mass. at 83; see also Fiske, 354 Mass. at 271 (“substantial injury or manifest injustice to the petitioner”). The questions thus presented are whether the plaintiffs’ injuries are of the type protected by certiorari, and whether they are sufficiently substantial to warrant review. These two questions, of course, are interrelated.

The requirements for standing under certiorari are more rigorous than those under G.L. c. 40A, § 17. Unlike c. 40A, § 17, where “parties in interest” are rebuttably presumed to have standing (abutters, owners of land directly opposite on any public or private street or way, and abutters to abutters within three hundred feet of the property at issue, G.L. c. 40A, §§ 11, 17) and “?person aggrieved’ should not be construed narrowly,” Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 722 (1996), no one has a presumption of standing in a certiorari proceeding, and the requirements for standing are “formidable.” Friedman v. Conservation Comm. of Edgartown, 62 Mass. App. Ct. 539 , 543-44 (2004).

Judged by these standards, the plaintiffs clearly have no standing to bring a certiorari proceeding in these circumstances. As noted above, they lack standing even under the more liberal standard of G.L. c. 40A, § 17, and the types of injuries they allege are neither “substantial” nor a “manifest injustice” within the meaning of G.L. c. 249, § 4. KHJ may have breached its promises to preserve the structures in question, but that is a matter between the plaintiffs and KHJ and them alone. The plaintiffs’ lack of an effective legal remedy against KHJ (due to plaintiffs’ failure to satisfy the requirements of the statute of frauds and their failure to include a preservation condition in their contract of sale) cannot be circumvented by resort to certiorari. The plaintiffs’ expenditure of “a significant amount of time, energy, and money attending hearings and working towards a site plan” in support of the variance application is also insufficient. [Note 8] They were under no legal obligation to do so. Thus, their time, energy, and money were volunteered to support their own intellectual, sentimental, and emotional interests in the property, but that does not mean that they suffered a legally recognized “substantial injury or injustice.” As previously noted, those intellectual, sentimental, and emotional interests do not confer standing. Denneny, 59 Mass. App. Ct. at 213.


For the foregoing reasons, the board’s motion to dismiss is ALLOWED. The plaintiffs’ claims are hereby DISMISSED, in their entirety, with prejudice. Judgment shall enter accordingly.


By the court. (Long, J.)


Deborah J. Patterson, Recorder

Dated: 23 April 2009


[Note 1] See Affidavit of Mary Cannistra (Jan. 12, 2009),¶¶ 4 & 5. The opening sentence of the complaint erroneously states that it is brought by KHJ Development, LLC. Complaint (Sept. 9, 2008) at 1. As the text and subsequent pleadings make plain, however, the complaint and its claims are brought solely by the Cannistras. KHJ is a defendant.

[Note 2] The home and garage, built of brick and set back from the street further than the other nearby residences, are alleged to be “unique in that area” and “provide[] a stately feel to the neighborhood.” Affidavit of Mary Cannistra,¶ 4; Complaint, ¶ 8.

[Note 3] The buildings are dimensionally non-conforming (setback). They presumably are protected non-conforming structures if they remain unchanged, but any substantial development of the property would likely constitute a change and thus require a variance to preserve the buildings in their present location. KHJ plans a four lot subdivision.

[Note 4] KHJ’s alleged promises were only given orally. Both the statute of frauds and the integration clause in the sale documents (which apparently did not include a condition that the buildings be preserved) thus allegedly preclude the enforcement of these promises. See Plaintiff’s Opposition to Defendant Zoning Board of Appeals of the City of Waltham’s Motion to Dismiss Complaint (Jan. 12, 2009) at 9.

[Note 5] G.L. c. 40A, § 17 (appeal must be filed no later than twenty days from date board decision is filed with city clerk).

[Note 6] Rule 12(b)(6) motions test the legal sufficiency of the complaint (whether, as a matter of law, it states a claim upon which relief can be granted) on the assumption that all of its factual allegations, stripped of “labels and conclusions,” are true “even if doubtful in fact.” Iannachinno v. Ford Motor Co., 451 Mass. 623 , 636 (2008). (Continued on next page)

Thus, for purposes of this motion, I have reviewed and relied upon the facts set forth in the plaintiffs’ complaint and affidavits and given them the benefit of all reasonable inferences.

[Note 7] The petitioner must also have exhausted his administrative remedies. Id. at 84.

[Note 8] See Plaintiffs’ Opposition to Defendant, Zoning Board of Appeals of the City of Waltham’s Motion to Dismiss Complaint, (Jan. 12, 2009) at 10.