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 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 (Ordinance) against Defendants Michael J. Hubbard and Robert J. Hubbard, Trustees (the Trust), owner of property at 16 Bay View Avenue (Defendant’s Property). In his request to the Commissioner, Mr. Harrington asserted that Defendant’s building permit should be rescinded because Defendant’s Property contains more than two acres and therefore is subject to the Beverly Open Space Residential Design Ordinance (BOSRDO). The Commissioner refused to rescind the building permit and Mr. Harrington brought an appeal to the Board.

Plaintiffs commenced this action on August 28, 2009, pursuant to G. L. c. 40A, § 17, to appeal the Board’s decision. On September 30, 2009, the Trust filed a Motion for Summary Judgment. Plaintiffs opposed this motion through a written opposition filed on October 29, 2009, and cross-moved for summary judgment. A hearing was held on December 21, 2009, at which all parties were heard and Plaintiffs and Defendant Trust submitted supplemental briefs on or before April 22, 2010, 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. Defendant Trust owns Defendant’s Property.

2. On March 26, 2009, Michael Harrington submitted a request for zoning enforcement to the Commissioner stating that Defendants’ Property contained more than two acres of land and was subject to the BOSRDO.

3. On April 13, 2009, the Commissioner issued a written decision denying the request for enforcement (Administrative Decision).

4. On May 12, 2009, Michael Harrington filed an appeal of the Administrative Decision with the Board. On July 28, 2009, after a duly-noticed public hearing, the Board voted to uphold the Administrative Decision and a written decision was filed with the Beverly City Clerk on August 11, 2009.

5. While Michael Harrington received notice of the public hearing from the Board, he was not listed on the most recent applicable tax list of the City of Beverly Assessing Department as an abutter to Defendant’s Property, an abutter to an abutter to Defendant’s Property within 300 feet of it, or an owner of land directly opposite Defendant’s Property on any public or private street or way (party in interest). [Note 1] Michael Harrington was not certified by the assessors to the building department or the Board as an interested party in connection with the Defendant’s Property. He did not request notice of the hearing.

6. Despite the fact that the Harrington Property is not within the definition of a property that would qualify its owner as a party in interest under G. L. c. 40A, § 11, Dorothy Harrington was on the assessors’ list of people to whom notice should be sent, and she received notice.

7. Defendant Trust challenged Michael Harrington’s standing before the Board and the Board voted “to accept Michael Harrington as an aggrieved party.”

8. 14 Bay View Avenue, 16B Bay View Avenue, 18 Bay View Avenue, and Defendant’s Property were, at one time, all part of a single parcel owned by William S. Dexter. In 1880, Dexter conveyed the property to Amory A. Lawrence by deed recorded in Book 1032, at Page 171, which referenced a plan by Charles A. Putnam.

9. As shown on the Putnam plan, the gross area of the property conveyed was three acres and 13,000 square feet (Large Parcel).

10. 18 Bay View Avenue was separated from the Large Parcel and conveyed to Ford Properties, Inc., by deed recorded in Book 12791, at Page 367. This conveyance reduced the area of the Large Parcel to 126,158 square feet (2.89 acres) (Remaining Parcel).

11. 14 Bay View Avenue was conveyed out of the Remaining Parcel, further reducing the area of the Remaining Parcel. [Note 2]

12. 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 the 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)). This court finds that there are no material facts in dispute and the case is ripe for summary judgment.

On February 12, 2010, this court issued a decision in case number 09 MISC 401728 (First Case), which involved the same parties and property as the instant case. [Note 3] For the reasons articulated in the First Case, summary judgment is appropriate in the instant case. As in the First Case, Defendant Trust here argues that Michael Harrington did not have standing to bring an appeal of the Administrative Decision to the Board. It further asserts that because he did not have standing before the Board and that because he was the only appellant before the Board, as in the First Case, the Board hearing is void ab initio and Plaintiffs’ appeal to this court from the Board’s decision must be dismissed. [Note 4] 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. The list of names included Mr. Harrington’s wife, record owner of the Harrington Property. 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 a decision of a board of appeals or planning board. 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)).

In the First Case, Michael Harrington asserted that Defendant Trust was barred from challenging his standing before the Board since the Trust had failed to raise the issue of standing at the Board level. As this court articulated in the decision in the First Case, standing is a matter of subject matter jurisdiction and cannot be waived. Nonetheless, this is not here at issue. In the instant case, Defendant Trust did challenge Michael Harrington’s standing before the Board, which resulted in the Board’s voted to accept him as a person aggrieved with standing to appeal the Administrative Decision to the Board. The Board’s finding of aggrievement should not be overturned unless it is arbitrary, capricious, or legally untenable. See MacGibbon v. Board of Appeals of Duxbury, 369 Mass. 512 , 515-16 (1976). For the reasons set forth herein, this court finds that the Board’s finding of aggrievement is legally untenable. Because the Board has no discretion in determining whether a party has standing, “[t]his is not a case where the judge owes deference to the discretion exercised by the board.” Needham Pastoral Counseling Center, Inc. v. Board of Appeals of Needham, 29 Mass. App. Ct. 31 , 32, further appellate review denied, 408 Mass. 1103 (1990) (internal citations omitted).

As it did in the First Case, 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 Defendant’s Property, nor do they live directly opposite Defendant’s Property on a public or private way. Michael Harrington does not contest these facts. He does assert, however, that he is entitled to a presumption of standing just as if he were a party in interest 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.

G. L. c. 40A, § 11 (emphasis added). Mr. Harrington once again 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. As already stated in the First Case, this position is not correct 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 are presumptively affected by a board’s grant of relief. [Note 5] As to who owns which properties, the assessor’s certification, based on its “most recent applicable tax list” is conclusive. If the assessor’s 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 be rendered moot.

Chongris v. Board of Appeals of Andover, 17 Mass. App. Ct. 999 (1984), is instructive on this point. In Chongris, the defendant, Friends of Shawsheen Village Association (Association), appealed to the Andover Board of Appeals a building inspector’s issuance of a building permit to Chongris. The Board ordered revocation of the permit and Chongris appealed to the court pursuant to G. L. c. 40A, § 17. As in the instant case, at the trial court level, Chongris raised the issue of the Association’s standing before the Board of Appeals. 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

Typically, challenges to a party’s aggrieved person status arise when a party seeks judicial review of a decision of a board of appeals under G. L. c. 40A, Section 17. In the instant action the challenge is under G. L. c. 40A, Section 8, which provides that the first avenue of relief from an order or decision of a building inspector is to the board of appeal and that the route may be taken only by a person aggrieved. Aggrieved 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. As the court in the case crisply said of the party seeking relief before the board of appeal, “[He] had no right to file it and the board had no authority to hear it.”

Chongris, 17 Mass. App. Ct. at 1000 (internal citation omitted) (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, or otherwise aggrieved. [Note 6]

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, based on allegations of harm. “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). The record is bare with regard to Mr. Harrington’s alleged harm, as his sole assertion of aggrievement derives from the fact that the Board sent him notice of the hearing. 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 7] 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) (internal 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 nor who fail to establish their standing through particularized harm and injury. [Note 8] See Dunbar v. Dennis Zoning Bd. of Appeals, 6 LCR 12 , 13 (1998) (“An erroneous interpretation of a by-law provision by a local board or building inspector, even if longstanding, is not controlling.”) (citing Hebb v. Lamport, 4 Mass. App. Ct. 202 , 209, further appellate review denied, 370 Mass. 876 (1976)).

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 sought enforcement through proper administrative channels, 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: April 26, 2010