Chase v. Planning Bd. of Watertown

• Decision Date: 07 July 1976
• Parties: Robert B. CHASE et al. 1 v. PLANNING BOARD OF WATERTOWN et al. 2
• Court: Appeals Court of Massachusetts

Page 470

350 N.E.2d 470

4 Mass.App.Ct. 430

Robert B. CHASE et al. ¹

v. PLANNING BOARD OF WATERTOWN et al. ²

Appeals Court of Massachusetts, Suffolk.

Argued April 13, 1976.

Decided July 7, 1976.

Christopher Pilavis, Boston, for plaintiffs.

Walter H. McLaughlin, Jr., Boston (William F. York, Boston, with him), for Carabetta Enterprises, Inc. and another.

Paula R. Rosen, Asst. Atty. Gen., for Dept. of Community Affairs.

John G. Carberry, Boston, for Massachusetts Housing Finance Agency.

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

HALE, Chief Justice.

This is an appeal from a judgment of dismissal entered pursuant to Mass.R.Civ.P. 12(b), 365 Mass. 755 (1974), of an action seeking a declaratory judgment in accordance with G.L. c. 231A.

In early 1975, Carabetta Enterprises, Inc. (developer) filed an application with the Department of Community Affairs (DCA) seeking to establish pursuant to G.L. c. 121A (as in effect prior to St.1975, c. 827) a corporation which would build apartments in Watertown near the Charles River on land owned by Charles Mossessian. In accordance with the procedures of G.L. c. 121A, § 6, the DCA transmitted the application to the town of Watertown, whose selectmen reported the matter to the planning board. On August 5, 1975, after conducting hearings, the planning board by a three to two vote determined, among other things, that the tract of land in question was a 'blighted open area' within the meaning of G.L. c. 121A, § 1, and approved the application.

Shortly thereafter the plaintiffs challenged the board's decision by filing this action seeking declaratory relief pursuant to G.L. c. 231A and judicial review of an agency decision pursuant to G.L. c. 30A, § 14. ³ On October 8, 1975, the defendants' Rule 12(b) motions to dismiss, based on various grounds, were allowed. Judgments were entered, and the plaintiffs appealed.

The plaintiffs, as residents, voters, taxpayers, or town officials, may not use chapter 231A to obtain declaratory relief concerning the validity of an official act. Prvey v. School Comm. of Medford, 333 Mass. 70, 71--72, 127 N.E.2d 925 (1955). Berry v. City of Quincy, 334 Mass. 703, 134 N.E.2d 135 (1956). Fine v. Woods Hole, Martha's Vineyard and Nantucket S.S. Authy., 350 Mass. 775, 215 N.E.2d 776 (1966), cert. den. 385 U.S. 845, 87 S.Ct. 73, 17 L.Ed.2d 76 (1966). Chapter 231A, § 8 requires that 'all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding.' The court in Povey made the following comment on a taxpayer suit similar to the present one: 'If . . . these plaintiffs are proper parties to this proceeding why must not all other taxpayers who have the same rights as the plaintiffs be made parties? And if all others are not made parties why may not other taxpayers who are not bound by the present proceeding bring other and later suits in their respective rights? And if ten or more taxpayers have a right to sue for declaratory relief, why does not a single taxpayer have the same right? We cannot believe that the Legislature intended that public officers should be subject to harassment by taxpayers as to their official acts in this manner.' 333 Mass. at 72, 127 N.E.2d at 926. We agree with the reasoning of Povey and conclude that the plaintiffs have not complied with the requirements of c. 231A, § 8 ⁴ As the plaintiffs have neither alleged nor argued any special statutory standing, dismissal of the action was proper. ⁵ See also Saraceno v. Peabody, 361 Mass. 696, 701--702, 282 N.E.2d 389 (1972). Furthermore, the granting of the Massachusetts Housing Finance Agency's motion to dismiss the plaintiff's action against it was also proper because that agency plays no role in the chapter 121A statutory scheme.

We do not find it necessary to decide whether the plaintiffs are aggrieved persons with in the meaning of G.L. c. 30A, § 14, because the planning board of Watertown is a local body and is not an 'agency' for purposes of the State Administrative Procedure Act, G.L. c. 30A. See Dixie's Bar Inc. v. Boston Licensing Bd. 357 Mass. 699, 702, 259 N.E.2d 777 (1970); Sherman v. Rent Control Bd. of Brookline, --- Mass. ---, --- - ---, ^a 323 N.E.2d 730 (1975). Therefore, review of the board's decision cannot be obtained under G.L. c. 30A, § 14. In light of our dispositon of this appeal, we offer no opinion concerning the merits of the case or whether the decision of the board was ripe for review.

Judgment affirmed.

1 Nineteen named residents of Watertown.

2 Carabetta Enterprises, Inc., Charles Mossessian, Department of Community Affairs and Massachusetts Housing Finance Agency.

3 The action was originally filed in the Supreme Judicial Court which ordered it transferred to the Superior Court. On September 18, 1975, a judge of the latter court denied the plaintiffs' request for a preliminary injunction prohibiting the approval of the...