Chongris v. Board of Appeals of Andover

• Decision Date: 15 February 1984
• Parties: George CHONGRIS et al. v. BOARD OF APPEALS OF ANDOVER et al.
• Court: Appeals Court of Massachusetts

Page 1245

459 N.E.2d 1245

17 Mass.App.Ct. 999

George CHONGRIS et al. v. BOARD OF APPEALS OF ANDOVER et al.

Appeals Court of Massachusetts,

Essex.

Argued Jan. 17, 1984.

Decided Feb. 15, 1984.

Domenic S. Terranova, Andover, for Friends of Shawsheen Village and another.

Alfred L. Daniels, Town Counsel, Andover, for Bd. of Appeals of Andover.

Arthur H. Goldsmith, Boston, for plaintiffs.

Before BROWN, KASS and WARNER, JJ.

RESCRIPT.

Dissatisfied with the building inspector's issuance of a permit to George Chongris to build a Dunkin Donuts in the town of Andover, the Friends of Shawsheen Village Association (Friends), appealed from the building inspector's decision to the board of appeals pursuant to G.L. c. 40A, § 8, inserted by St.1975, c. 808, § 3, and the zoning by-law of Andover. The board of appeals determined that the plans for the proposed building did not provide adequate parking under the town's zoning by-law and ordered revocation of the permit. Chongris, the landowner, appealed under G.L. c. 40A, § 17, and, by motion for summary judgment, Mass.R.Civ.P. 56, 365 Mass. 824 (1974), attacked the standing of Friends to challenge his permit. The judge concluded Friends was not a "person aggrieved" within the meaning of G.L. c. 40A, § 8, or the zoning by-law and that, accordingly, the board was without jurisdiction to entertain Friends' appeal. Judgment entered annulling the board's decision and "declaring" that the landowner's permit was in full force and effect. We affirm.

Friends, according to its by-laws, is a voluntary association whose objective is to "promote the preservation, restoration, and advancement, of Shawsheen Village." In challenging the building permit at issue it demonstrated nothing more than a "general civic interest in the enforcement of the zoning [regulation]." Waltham Motor Inn, Inc. v. LaCava, 3 Mass.App.Ct. 210, 218, 326 N.E.2d 348 (1975). Owens v. Board of Appeals of Belmont, 11 Mass.App. 994, 418 N.E.2d 635. It is settled that a statement of organizational purpose cannot clothe a civic association with aggrieved person status. Amherst Growth Study Comm. v. Board of Appeals of Amherst, 1 Mass.App.Ct. 826, 827, 296 N.E.2d 717 (1973). Cf. Save the Bay, Inc. v. Department of Pub. Util., 366 Mass. 667, 672-675, 322 N.E.2d 742 (1975). At no point in the proceedings has Friends asserted that any of its legal rights have been infringed. See Circle Lounge & Grille, Inc. v. Board of Appeals of Boston, 324 Mass. 427, 430, 86 N.E.2d 920 (1949).

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, § 17. See, e.g., Marotta v. Board of Appeals of Revere, 336 Mass. 199, 143 N.E.2d 270 (1957), brought under a predecessor, but essentially similar, statute, in which the court observed that the Superior Court had no jurisdiction to consider the case unless the appeal was taken by an aggrieved person. Id. at 202-203, 143 N.E.2d 270. In the instant action the challenge is under G.L. c. 40A, § 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. See Neuhaus v. Building Inspector of Marlborough, 11 Mass.App. 230, --- - ---, Mass.App.Ct.Adv.Sh. (1981) 161, 163-164, 415 N.E.2d 235. Aggrieved person status is no less a jurisdictional condition to maintaining an appeal to a board of appeal under G.L. c. 40A, § 8, than it is to maintaining judicial review under § 17. See Turner v. Board of Appeals of Milton, 305 Mass. 189, 192-193, 25 N.E.2d 203 (1940), also decided under a predecessor statute. As the court in that 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." Id. at 193, 25 N.E.2d 203.

Friends gained no ground by acting through its president, James Sellers, a resident of Andover. The record fails to disclose that Sellers ever alleged that he, as an individual property owner, was harmed by the building inspector's issuance of the permit. He was neither an abutter, nor an abutter to an abutter, of the lot for which the permit was issued. Rafferty v. Sancta Maria Hosp., 5 Mass.App.Ct. 624, 629-630, 367 N.E.2d 856 (1977). Compare Save the Bay, Inc. v. Department of Pub. Util., 366 Mass. at 675, 322 N.E.2d 742. Sellers could not establish that he had an interest in maintaining the...