Board of Selectmen of Stockbridge v. Monument Inn, Inc.

• Decision Date: 24 July 1979
• Parties: BOARD OF SELECTMEN OF STOCKBRIDGE v. MONUMENT INN, INC. (and a companion case 1 ).
• Court: Appeals Court of Massachusetts

Page 1265

391 N.E.2d 1265

8 Mass.App.Ct. 158

BOARD OF SELECTMEN OF STOCKBRIDGE v. MONUMENT INN, INC. (and a companion case ¹).

Appeals Court of Massachusetts, Berkshire.

Argued June 11, 1979.

Decided July 24, 1979.

F. Anthony Mooney, Boston (James P. Dohoney, Lee, with him), for Monument Inn, Inc.

David O. Burbank, Pittsfield, for the Board of Selectmen of Stockbridge.

Cynthia J. Cohen, Cambridge, for interveners.

Before HALE, C. J., and GRANT and BROWN, JJ.

HALE, Chief Justice.

Monument Inn, Inc., doing business as Music Inn, holder of a special permit issued by the board of selectmen of Stockbridge (board), appeals from a summary judgment, entered in each of two consolidated actions, which upheld the special permit but subjected it to eight restrictions. In addition, certain abutters ² appeal from the denial of their motion to intervene as plaintiffs in the action brought by the board.

We summarize the facts and the procedural background of these appeals as they are revealed by the record appendix, as supplemented by an appendix filed by the would be interveners by leave of this court. ³ On March 24, 1970, the board, as the special permit granting authority for Stockbridge (Town of Stockbridge Zoning By-Law § VII B 3 (1967)), issued Music Inn a special permit "to operate a hotel facility, including music and cultural programs, a restaurant and a lounge." At the hearing on Music Inn's application for the permit, certain abutters to Music Inn's property expressed objections to the granting of the permit due to their concern for the potential impact of Music Inn's operations upon a private water supply serving its property as well as theirs. The board took the application under advisement pending a resolution of those objections. On March 23, 1970, counsel for Music Inn and for the abutters entered into a letter agreement (the Dohoney/Reder letter) which provided that the application for a special permit would apply only to existing structures and facilities, that Music Inn would not extend or enlarge its present facilities without permission of the board, and that it would not install or enlarge existing water outlets. A copy of the letter was delivered to the board at the adjourned public hearing held on March 23, 1970.

A detailed record of the board's proceedings was filed with the town clerk pursuant to G.L. c. 40A, § 18 (as amended through St.1969, c. 870, § 1). Neither this record nor the official notification to Music Inn advising that its application had been granted specifically referred to the Dohoney/Reder letter or to the conditions stated therein. The record did, however, refer to the attendance of attorneys Dohoney and Reder at the hearing and noted that "the applicant and the citizens decided to solve this internal problem among themselves and try to come up with a solution to their common problem." The record further stated that "(e)veryone felt that the license should be granted if the Board imposed certain limitations on the license to control the facility."

Approximately four years later, acting upon the request of counsel for Music Inn, the board provided Music Inn with a "Notice of Conditional Special Permit" in form suitable for recording. That notice, which Music Inn recorded at the Berkshire Middle District registry of deeds, provided that the permit was subject to the conditions set forth in the Dohoney/Reder letter which was attached to the notice and incorporated in it by reference. The parties have stipulated that the notice was sought "because in 1974 a selectman contended that the 1970 special permit was conditional and realizing that, if this was correct, notice of a conditional permit was required to be recorded under former G.L. (c.) 40A."

The actions commenced by both parties were precipitated when, on June 13, 1977, the board, acting as the enforcing authority (Town of Stockbridge Zoning By-Law § VII A 1), issued a cease and desist order, contending that Music Inn had violated the conditions of the special permit, and requested Music Inn to take corrective action. In the first action (Docket No. 28544), the board sought preliminary and final injunctive relief against Music Inn on the ground that it had violated the conditions of its special permit by relocating and enlarging its stage facilities for the purpose of conducting amplified music concerts to be attended by a substantially increased number of patrons. In the second action (Docket No. 28545) Music Inn sought a declaratory judgment to the effect that the permit was unconditional, that the cease and desist order issued by the board was invalid, and that Music Inn had not violated the terms of any zoning permit held by it. ⁴

The board's motion for a preliminary injunction was denied. The two actions were consolidated and, after a hearing before a second judge, a summary judgment was entered which affirmed Music Inn's permit subject to eight conditions, none of which the board had imposed under the permit. ⁵ The judgment, as a preamble to the conditions, states that "(i)t would appear to be in the best interest of both parties if the scope of Music Inn's activities can be defined so that it can continue to operate with a minimum of friction."

Two weeks after the board had filed its complaint, certain abutters, who had brought an earlier action against Music Inn which sounded in nuisance, filed a motion for leave to intervene as parties plaintiff in the board's action. The motion was heard and denied at the same hearing which resulted in the summary judgment. The motion had no accompanying pleading (Mass.R.Civ.P. 24(c), 365 Mass. 770 (1974)), but counsel for the would be interveners stated that if the motion were allowed, the applicant-interveners would adopt the board's complaint as their own.

1. We consider first the would be interveners' appeal, in which they argue that they were entitled to intervene as a matter of right pursuant to Mass.R.Civ.P. 24(a)(2), 365 Mass. 769-770 (1974). ⁶ Although courts frequently view applications to intervene as of right leniently because denial may entail serious harm (McDonald v. E. J. Lavino Co., 430 F.2d 1065, 1073 (5th Cir. 1970); Smith & Zobel, Rules Practice § 24.4 (1975)), the judge is entitled to a full range of reasonable discretion in determining whether the requirements of intervention have been met (Rios v. Enterprise Assn. Steamfitters Local 638, 520 F.2d 352, 355 (2d Cir. 1975)), and his decision will not be reversed in the absence of an abuse of discretion. Haverhill v. DiBurro, 337 Mass. 230, 235-236, 148 N.E.2d 642 (1958), and case cited. Virginia v. Westinghouse Elec. Corp., 542 F.2d 214, 216 (4th Cir. 1976).

Our examination of the record reveals no abuse of discretion. In addition to the requirements set forth in rule 24(a)(2), a motion to intervene must be "accompanied by a pleading setting forth the claim or defense for which intervention is sought." Mass.R.Civ.P. 24(c). We note that the motion in this case was not accompanied by any such pleading. Rather, counsel for the applicants orally advised the judge that they would adopt the board's pleadings if they were permitted to intervene. Although the record does not reveal the ground for the judge's decision, which may also have been based on a conclusion that the applicants' interests would be adequately represented by the board, it was within his discretion to deny the motion on the basis of these facts, and there was no error. Abramson v. Penwood Inv. Corp., 392 F.2d 759, 761 (2d Cir. 1968). Associated Students of the Univ. of Calif. at Riverside v. Kleindienst, 60 F.R.D. 65, 68 (C.D.Cal.1973). But see Alexander v. Hall, 64 F.R.D. 152, 156 (D.S.C.1974); 7A Wright & Miller, Federal Practice & Procedure § 1914 (1972).

2. Music Inn's appeal is atypical in that both parties agree that the judge erred in imposing conditions or restrictions which were not made part of the special permit at the time it was originally granted. The court's authority to fashion the judgment it did is limited. See Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555, 558-559, 120 N.E.2d 916 (1954); Roberts-Haverhill Associates v. City Council of Haverhill, 2 Mass.App. 715, 717, ...