VINCENT F. ZARRILLI vs. TOWN OF SUDBURY

A petition entitled "Action to Impeach the Validity of a Zoning Bylaw" of the Town of Sudbury was filed in this court by the petitioner who appeared pro se. The respondent Town of Sudbury filed a motion to dismiss on the ground that this court did not have subject matter jurisdiction. Prior to the hearing on the motion to dismiss the court, after notice and hearing, denied two separate requests by the petitioner for the issuance of preliminary injunctions.

The motion to dismiss came on to be heard, and after consideration thereof, it is ordered that the motion be allowed and that judgment be entered for the respondent Town.

The petition expressly states that it was brought pursuant to and that the court's jurisdiction to consider it was derived from G. L. c. 240, § 14A and G. L. c. 185, § 1(j 1/2). It alleges that the petitioner leases land at 163 Boston Post Road in Sudbury from the Boston Edison Company. The petitioner admitted at the time of argument on the motion that he did not own the subject premises but that he leased them under a three year lease commencing in August, 1977 with an option to renew for an additional three year term. The owner of the premises is not a party petitioner. The petitioner challenges an unpleaded site-plan provision of the respondent's zoning by-law and requests the court to nullify it as it applies to pre-existing nonconforming structures.

The jurisdiction of this court to entertain petitions to determine the validity of municipal zoning ordinances, by-laws and regulations is narrowly limited by G. L. c. 240, § 14A to those petitions brought by an "owner of a freehold estate in possession in land." Petitioner in argument on the motion conceded that as a lessee for years he did not own a freehold estate in any land affected by the zoning enactment but asserts that Pitman v. Medford, 312 Mass. 618 , supports his contention that this court has jurisdiction under G. L. c. 240, § 14A to hear and decide a petition brought by one holding less than a freehold estate in land. Petitioner's reliance on Pitman is misplaced since there the petition was clearly brought by the owners of the land affected by the zoning provision although the owners were joined by a co-petitioner who held an option to purchase the land. The Court in Pitman did not address the issue of whether the Land Court had jurisdiction under G. L. c. 240, § 14A to entertain a petition brought by one like the petitioner herein who did not own a freehold estate in land. It is true that in Pitman it was decided that an optionee of land had a sufficient interest to enable him to apply to the municipal governing authority for an amendment to the zoning ordinance, but this determination is inapposite to this case.

Accordingly, the court rules that it has no jurisdiction to hear and decide a petition expressly brought under the provisions of G. L. c. 240, § 14A and G. L. c. 185, § 1(j 1/2) which clearly shows on its face that it is brought solely in the name of one who does not own a freehold estate in land affected by the zoning enactment under attack.

Judgment to enter accordingly.