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. 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. 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. Unless the boards decision is reversed and the variance issued, the buildings may be demolished and a valuable community asset lost. 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 boards 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. 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 boards 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 courts review and reversal of the boards decision. The board 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). 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 in the Memorandum and Order on Motion to Dismiss issued by the court on April 23, 2009, 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. Accordingly, the boards motion to dismiss is ALLOWED and the plaintiffs claims are hereby DISMISSED, in their entirety, with prejudice.
SO ORDERED.
By the court. (Long, J.)
Attest:
Deborah J. Patterson, Recorder
Dated: 23 April 2009
MARY CANNISTRA and LINDA CANNISTRA v. BARBARA RANDO, MICHAEL COTTON, BRUCE MORRIS, MARK HICKERNELL, JOHN SERGI, EDWARD McCARTHY, JR., OSCAR LeBLANC, GLENNA GELINEAU, MARC RUDNICK and MICHAEL SQUILLANTE, as members of the Waltham Zoning Board of Appeals, and KHJ DEVELOPMENT, LLC