MISC 10-429301

December 9, 2011


Grossman, J.



The Town of Randolph (plaintiff/Town of Randolph) initiated this action as an appeal pursuant to G.L. c. 40A, § 17. Specifically, plaintiff challenges a decision of the Holbrook Zoning Board of Appeals granting three Special Permits for the construction and operation of a municipal solid waste transfer station to be located at 3 Phillips Road (Locus/site), in Holbrook, Massachusetts.

TLA-Holbrook LLC (defendant/TLA-Holbrook) has filed a Motion to Dismiss pursuant to Mass. R. Civ. P. 12 (b) (1). The defendant argues that the plaintiff lacks standing to maintain the instant action pursuant to G.L. c. 40A, § 17.


While the Town of Holbrook is the present owner of Locus, TLA-Holbrook as lessee thereof, “proposes to permit, construct and operate a municipal solid waste transfer station with a capacity of 1,000 tons per day…at the [s]ite.” [Note 1] According to the complaint, Locus “directly abuts the Randolph Town line. In the Town of Holbrook, [Locus] is surrounded by active commercial uses along with at least one residential dwelling. In the Town of Randolph, [Locus] is surrounded by residential properties.” [Note 2] There is no indication that the Town of Randolph is itself the owner of abutting property. [Note 3]

In its Motion to Dismiss for Lack of Standing, the defendant argues that the plaintiff fails to meet the standing requirements set out in G.L. c. 40A, § 17. The operative language of § 17 is as follows:

Any person aggrieved by a decision of the board of appeals or any special permit granting authority…or any municipal officer or board may appeal to the land court department…by bringing an action within twenty days after the decision has been filed in the office of the town clerk. (emphasis added)

Thus, this court has subject matter jurisdiction with regard to an appeal filed by either any “person aggrieved” or by any “municipal officer or board.” Two cases are especially instructive, and ultimately dispositive, in determining whether the plaintiff falls within either or both of these categories.

In the first of these cases, Commonwealth v. Dowd, 37 Mass. App. Ct. 164 (1994), the Court succinctly observed as follows:

For purposes of construing the General Laws, the word “person” ordinarily does not describe the State or its subdivisions. [Note 4] This canon of construction is scarcely limited to Massachusetts. “[I]n common usage, the term ‘person’ does not include the sovereign, [and] statutes employing the [word] are ordinarily construed to exclude it.” Will v. Michigan Dept. of State Police, 491 U.S. 58, 64 (1989). Id. at 166. (emphasis added)

As to the phrase “aggrieved person” or “person aggrieved” when it appears in the General Laws, it denotes private rather than governmental or public interest. [Note 5] Id.

In zoning litigation, the statutory phrase “person aggrieved” which appears in Sections 8 and 17 of G.L. c. 40A, has meant someone who can assert a plausible claim of private right, private property interest, or private legal interest as opposed to general public concern about a zoning question. Id. at 167.

Predicated upon Dowd, this court is satisfied that a city or town may not constitute a “person aggrieved” as that term is used in G.L. c. 40A, § 17.

The second illustrative case is Planning Board of Marshfield v. Zoning Board of Appeals of Pembroke, 427 Mass. 699 (1998). Marshfield involved an effort by “the planning board of one town to obtain judicial review of a decision of the zoning board of an adjacent town.” [Note 6] As in the case at bar, a critical issue in Marshfield concerned the proper construction of the phrase “municipal officer or board” appearing in § 17 of G.L. c. 40A. The Court’s analysis included the following:

The s.17 grant of standing to municipal officers and boards is exceptional in that it does not require any showing of injury to a legally protected interest. We think the provision must be construed narrowly so as to minimize the class of parties who have suffered no legal harm, yet “can compel the courts to assume the difficult and delicate duty of passing upon the validity of the acts of a coordinate branch of government.”…We do not believe the Legislature intended s. 17 to grant standing to the planning board of one town to challenge a decision of another town’s zoning board. (emphasis added) Id. at 702.

Moreover, we [have] stated that a “municipal board seeking to appeal …must have duties which relate to the subject matter.” The subject matter of this case is not zoning generally, but zoning in Pembroke, more specifically, the Pembroke zoning bylaw’s application to a project to be developed in Pembroke. The planning board [of Marshfield] therefore has no duties relating to the subject matter of this case. [Note 7] Id. (internal citations omitted)

Finally, we reject the planning board’s argument that, because it is a “party in interest” with a right to notice of hearings and of zoning appeal decisions, see G.L. c. 40A, s.s. 11, 15, it has standing to challenge those decisions. The term “party in interest” defined in s. 11 and used in s. 15, does not appear in the standing provisions of s. 17. Id.

Because the planning board lacks standing, the judge should have dismissed the planning board’s complaint for lack of subject matter jurisdiction…. Id. at 703.

It is this court’s view that the rationale underlying the Marshfield decision applies with equal force to the instant matter involving a challenge, not by a planning board, but by the Town of Randolph. Given the plain language of Marshfield, this court is satisfied that a city or town does not constitute a “municipal officer or board” for purposes of G.L. c. 40A, § 17.


In view of the foregoing, this court concludes that, as a matter of law, the plaintiff herein is neither a “person aggrieved” nor a “municipal officer or board” as those phrases appear in G.L. c. 40A, § 17. Consequently, the plaintiff has failed to demonstrate that it possesses the requisite standing to maintain an appeal from a decision of the Town of Holbrook Zoning Board of Appeals. Absent such standing on the part of the plaintiff, this court lacks the concomitant subject matter jurisdiction to address the merits of the case.

Consequently, it is hereby

ORDERED that the defendant’s Motion to Dismiss for Lack of Standing is hereby ALLOWED. Judgment to enter accordingly.


By the Court. (Grossman, J.)


[Note 1] Exhibit A as appended to the plaintiff’s complaint: Decision of the Holbrook Zoning Board of Appeals, p.1.

[Note 2] Complaint, ¶¶ 7-9.

[Note 3] See, in this regard, Planning Board of Marshfield v. Zoning Board of Appeals of Pembroke, 427 Mass. 699 , 702 (1998) as quoted infra.

[Note 4] The Town of Randolph is plainly a subdivision of the Commonwealth.

[Note 5] In both its Complaint and Memorandum in Support of its Opposition to Defendants’ Motion to Dismiss, the Town asserts “general public concerns” as opposed to purely private interests.

[Note 6] On the face of it, of course, the Town of Randolph is neither a municipal officer nor a board.

[Note 7] In similar fashion, the Town of Randolph has no duties which relate to zoning within the Town of Holbrook.