DOROTHY HARRINGTON, MICHAEL HARRINGTON, THAD OUTERBRIDGE, RICHARD MALLEY, and KATHLEEN HARNEY v. DAY ANN KELLEY, SCOTT FERGUSON, MARGARET O’BRIEN, JANE BRUSCA, JOEL MARGOLIS, SALLY KOEN, and PATRICIA GOUGIAN as they are members of the BEVERLY ZONING BOARD OF APPEALS, and RACHEL M. THOMPSON, and MICHAEL J. HUBBARD and ROBERT J. HUBBARD as they are the trustees of the ELMTOP REALTY TRUST

In this case, Plaintiffs challenge a decision of the Beverly Board of Appeals (Board), in which it upheld an action of the Building Commissioner (Commissioner). The dispute began when Plaintiff Michael Harrington requested that the Commissioner enforce a provision of the Beverly Zoning Ordinance against Rachel M. Thompson, the owner of property at 18 Bay View Avenue (Thompson Property). In his request to the Commissioner, Mr. Harrington alleged that the Thompson Property was in violation of a front yard setback requirement of the Ordinance. The Commissioner refused to enforce the request and Mr. Harrington brought an appeal to the Board. Plaintiffs commenced this action on May 29, 2009, pursuant to G. L. c. 40A, § 17, to appeal the Board’s decision. On June 18, 2009, Defendant Trust filed its Answer and on August 24, 2009, it filed a Motion for Summary Judgment. Plaintiffs opposed this motion through a written opposition filed on September 22, 2009, and cross-moved for summary judgment. A hearing was held on September 30, 2009, at which all parties were heard and Plaintiffs and Defendant Trust submitted supplemental briefs on or before October 14, 2009, as they were invited to do by the court. The summary judgment record establishes the following:

1. Plaintiff Michael Harrington resides at 7 Bay View Avenue (Harrington Property). Record title to the Harrington Property is in Plaintiff Dorothy Harrington, Michael Harrington’s wife.

2. On November 18, 2008, the Beverly Planning Board endorsed an “approval-not- required” plan titled “Plan of Land 14, 16 & 18 Bay View Avenue Beverly, MA,” dated October 23, 2008, recorded with the Essex South Registry of Deeds in Plan Book 417, as Plan 24 (ANR Plan). The ANR Plan created a lot designated “Parcel Z” within the Thompson Property.

3. One of the purposes of the ANR Plan was to facilitate the removal of Parcel Z from the improved Thompson Property, so that it could be transferred and added to the adjacent lot at 16-B Bay View Avenue, owned by Defendant Trustees of the Elmtop Realty Trust (Trust Property), while adding a Parcel Y to the Thompson Property, also shown on the ANR Plan.

4. On January 5, 2009, Plaintiff Michael Harrington submitted a request for zoning enforcement to the Commissioner pursuant to G. L. c. 40A, § 7, asserting that the conveyance of Parcel Z as depicted on the ANR Plan resulted in a violation of the Beverly Zoning Ordinance (Ordinance) because the conveyance left the Thompson Property non-compliant with the twenty-foot front yard setback applicable in the R-10 Residential Zoning District.

5. On February 11, 2009, the Commissioner issued a written administrative decision denying Plaintiff Michael Harrington’s request for zoning enforcement against the Thompson Property (Administrative Decision).

6. As planned, Defendant Thompson and Defendant Trust carried out the conveyance of Parcel Z as depicted on the ANR Plan through a deed recorded with said Deeds on February 11, 2009, in Book 28317, at Page 418.

7. By letter dated March 11, 2009, Plaintiff Michael Harrington filed an appeal of the administrative decision of the Commissioner with the Board pursuant to G. L. c. 40A, §§ 8 and 14.

8. On April 28, 2009, at a duly-noticed public hearing, the Board voted unanimously to uphold the Commissioner’s Administrative Decision. Michael Harrington, among others, received notice of that public hearing.

9. On May 12, 2009, the Board filed with the City Clerk its written decision upholding the Administrative Decision on the merits, interpreting the Ordinance to hold that there was no front yard setback violation at the Thompson Property.

10. While Michael Harrington received notice of the public hearing, he was not listed on the most recent applicable tax list of the City of Beverly Assessing Department as either an abutter to the Thompson Property, an abutter to an abutter to the Thompson Property within 300 feet of it, or an owner of land directly opposite the Thompson Property on any public or private street or way. Michael Harrington was not certified by the assessors to the building department or the Board as an interested party in connection with the Thompson Property. He did not request notice of the hearing.

11. While Dorothy Harrington was on the assessors’ list of people to whom notice should be sent, the Harrington Property does not abut the Thompson Property, nor does it abut any property that abuts the Thompson Property. Further, the Harrington Property is not directly opposite the Thompson Property on any public or private street or way. [Note 1]

12. Defendants did not challenge Plaintiff Michael Harrington’s standing to appeal the Building Commissioner’s Administrative Decision to the Board at the April 28th hearing. [Note 2]

13. Section 29-28.B of the Ordinance states in its entirety:

Upon appeal from the decision by an administrative official, the Board of Appeals shall decide any question involving the interpretation of any provision of this Ordinance.

* * * * * *

This action is before this court pursuant to the parties’ cross-motions for summary judgment. “Rule 56 (c) of the Massachusetts Rules of Civil Procedure . . . provides that a judge shall grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Attorney General v. Bailey, 386 Mass. 367 , 370-71 (1982) (internal quotations omitted). In reviewing a motion for summary judgment, the court shall not assess “the credibility of witnesses or the weight of the evidence or make its own decision of facts.” Hub Assocs. v. Goode, 357 Mass. 449 , 451 (1970) (quoting Gordon v. American Tankers Corp., 286 Mass. 349 , 353 (1934)). A motion for summary judgment will not be granted “merely because the facts [the movant] offers appear more plausible than those tendered in opposition, or because it appears that the adversary is unlikely to prevail at trial.” Bailey, 386 Mass. at 371 (quoting Hayden v. First Nat'l Bank, 595 F.2d 994, 997 (5th Cir. 1979)). This court that there are no material facts in dispute and the case is ripe for summary judgement.

As a preliminary matter, Defendant Trust argues that Michael Harrington did not have standing to bring an appeal of the Administrative Decision before the Board. Further, it asserts that because he did not have standing before the Board and because he was the only appellant before the Board, the Board hearing is void ab initio and Plaintiffs’ appeal to this court from the Board’s decision must be dismissed. Mr. Harrington claims he has standing as a party in interest under G. L. c. 40A, § 11, because he received notice of the hearing from the Board based on the list of names provided by the assessors, which included his wife. On the merits of the decision, he argues that the Board’s decision is arbitrary, capricious, and legally untenable and must be annulled because the Board improperly interpreted the relevant provisions of the Ordinance in determining that there is no violation of the front yard setback at the Thompson Property. The Trust maintains that the Board’s decision was not arbitrary, capricious, or legally untenable because it properly interpreted the relevant language of the Ordinance. For the reasons set forth herein, this court agrees with the Trust that Michael Harrington lacked standing to bring his appeal to the Board, the decision must be annulled, and the instant appeal to this court must be dismissed.

“Standing is an issue of subject matter jurisdiction.” Planning Bd. of Marshfield v. Zoning Bd. of Appeals of Pembroke, 427 Mass. 699 , 703 (1998). Under G. L. c. 40A (The Zoning Act) only a “person aggrieved” may have standing to appeal the decision of a board of appeals or planning board. “To have standing in any capacity, a litigant must show that the challenged action has caused the litigant injury.” Slama v. Attorney General, 384 Mass. 620 , 624 (1981). The injury alleged must be established “by direct facts and not by speculative personal opinion” and must be “special and different from the concerns of the rest of the community.” Barnevik v. Alderman of Newton, 33 Mass. App. Ct. 129 , 132 (1992). Further, “the plaintiff must put forth credible evidence to substantiate his allegations.” Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996). Most relevant to the case before the court, “[a]ggrieved person status is no less a jurisdictional condition to maintaining an appeal to a board of appeal under G. L. c. 40A, Section 8, than it is to maintaining judicial review under Section 17.” Chongris v. Board of Appeals of Andover, 17 Mass. App. Ct. 999 , 1000 (1984) (citing Turner v. Board of Appeals of Milton, 305 Mass. 189 , 192-93 (1940)).

The summary judgment record establishes that neither Michael Harrington nor Dorothy Harrington is a party in interest under G. L. c. 40A, § 11. The Harringtons are not abutters, nor abutters to abutters to the Thompson Property, nor do they live directly opposite the Thompson Property on a public or private way. Michael Harrington does not dispute these facts, which are uncontested. He does assert, however, that he is entitled to a presumption of standing because he received notice of the April 28th hearing. Plaintiff bases this assertion on G. L. c. 40A, § 11, which states, in relevant part:

“Parties in interest” as used in this chapter shall mean the petitioner, abutters, owners of land directly opposite on any public or private street or way, and abutters to the abutters within three hundred feet of the property line of the petitioner as they appear on the most recent applicable tax list. . . The assessors maintaining any applicable tax list shall certify to the permit granting authority or special permit granting authority the names and addresses of parties in interest and such certification shall be conclusive for all purposes. (emphasis added).

Mr. Harrington argues that the language “conclusive for all purposes” confers on him a presumption of standing, which establishes his standing and right to appeal the Administrative Decision to the Board and to the court. This court disagrees for two reasons.

The language in Section 11 incorporating by reference the “most recent applicable tax list” and the obligation of the assessors to certify names and addresses of parties in interest, which certification “shall be conclusive for all purposes,” is meant to give certainty to the list of the proper parties for notice purposes. It presumes that the “petitioner” is the owner of the property at issue—most often the owner who unsuccessfully petitioned a board for a special permit or variance—and that the people who own properties abutting and proximate to the petitioner’s might be affected by a board’s grant of relief. [Note 3] As to who owns which properties, the assessors’ certification, based on its “most recent applicable tax list” is conclusive. If the assessors’ certified list was conclusive on the question of standing before the Board, much of the standing jurisprudence interpreting Sections 8, 11, and 17 of The Zoning Act would have to be ignored.

Defendant Trust points this court to Chongris v. Board of Appeals of Andover, 17 Mass. App. Ct. 999 (1984), as instructive on this point. In Chongris, the defendant, Friends of Shawsheen Village Association (Association), appealed a building inspector’s issuance of a building permit to Chongris to the Board of Appeals. The Board of Appeals ordered revocation of the permit and Chongris appealed to the court pursuant to G. L. c. 40A, § 17. As in the instant case, Chongris raised the issue of the Association’s standing before the Board of Appeals at the trial court level for the first time. The judge determined that the Association did not have standing under G. L. c. 40A, § 8, and annulled the Board of Appeals’ decision. The Appeals Court affirmed, noting

Chongris, 17 Mass. App. Ct. at 1000 (emphasis added). Chongris further supports the fact that the language “conclusive for all purposes” in G. L. c. 40A, § 11, was not intended to confer standing on persons who are not actually parties-in-interest. [Note 4]

Michael Harrington next argues that even if he did not have a presumption of standing before the Board, he is nonetheless permitted to maintain this action here because the Trust waived its challenge to his standing by not raising the issue before the Board. This court disagrees. It is well-settled that “[t]he requirement that the challenger must be a ‘person aggrieved’ is jurisdictional.” Denneny v. Zoning Bd. of Appeals of Seekonk, 59 Mass. App. Ct. 208 , 211 (2003). “Subject matter jurisdiction cannot be conferred by consent, conduct or waiver.” Litton Business Sys., Inc. v. Commissioner of Revenue, 383 Mass. 619 , 622 (1981). “[A] jurisdictional issue must be decided, regardless of the point at which it is first raised.” Id. The fact that Defendant Trust did not raise the issue of Michael Harrington’s standing before the Board does not preclude it from raising the issue here. Again, Chongris is instructive, as the appellant’s standing before the Board was challenged for the first time at the trial court level and the Appeals Court affirmed the trial court’s annulment the Board’s decision.

Michael Harrington cites to Hogan v. Hayes, 19 Mass. App. Ct. 399 , 402-403 (1985), to support the proposition that the issue of standing may be waived if not timely raised. However, that case is not instructive. The jurisdictional defect present in Hogan was the failure of the building inspector to issue a written decision in response to the plaintiffs’ request, which could then be appealed. As the court noted in Hogan,

Id. (emphasis added). The Appeals Court clearly drew a distinction between the kind of “jurisdictional” defect present in Hogan and a defect in the nature of subject matter jurisdiction, which is present here, and in Chongris. In the zoning context, a plaintiff’s standing is the very essence of subject matter jurisdiction before the Board and the court. As a result, it cannot be waived.

As this court has determined that Michael Harrington has no presumption of standing as a party in interest, it must look to his allegation of specific injury to determine if he had standing before the Board. He did not offer any evidence of aggrievement, either in the pleadings filed here or in connection with these summary judgment motions, in response to Defendant’s challenge to his entitlement to presumed standing. Rather, he asserts that he was not required to provide evidence of aggrievement because Section 29-28.B of the Ordinance provides that any person may take an appeal from a decision of the Commissioner. [Note 5] He argues that Section 29-28.B is more expansive than G. L. c. 40A, § 8, and does not require him to establish his status as a “person aggrieved.” This court disagrees that the Ordinance should be read as Plaintiff suggests. Even if it could be so expansively read, it is nonetheless governed by Section 8 of The Zoning Act, and must be read in connection with, and as enabled by, that section. Again, “[a]ggrieved person status is no less a jurisdictional condition to maintaining an appeal to a board of appeal under G. L. c. 40A, Section 8, than it is to maintaining judicial review under Section 17.” Chongris v. Board of Appeals of Andover, 17 Mass. App. Ct. 999 , 1000 (1984) (citation omitted). As a result, the Ordinance cannot be more expansive than The Zoning Act in this regard, by allegedly allowing appeals to the Board by persons who neither enjoy a presumption of aggrievement or who fail to establish their standing through particularized harm and injury. [Note 6]

For the reasons set forth herein, this court finds that Michael Harrington did not have standing to maintain his appeal of the Administrative Decision to the Board, either through a presumption of standing as a party in interest or by his showing of actual aggrievement. Although it appears that one or more of the named Plaintiffs in this action are parties in interest and would have been entitled to a presumption of standing had they appealed to the Board, only Michael Harrington did so. Since he has failed to establish his standing before the Board by establishing his aggrievement, this court rules that the Board did not have authority to hear his appeal. As such, it is as if the Board’s decision never issued and there is no action to appeal to this court. Consequently, the Board’s decision must be annulled and Plaintiffs’ complaint must be dismissed.

Judgment to issue accordingly.

Karyn F. Scheier

Chief Justice

Dated: February 12, 2010