Green v. Board of Appeals of Provincetown, 87-568

CourtAppeals Court of Massachusetts
Writing for the CourtBefore GREANEY; ARMSTRONG; KASS
Citation529 N.E.2d 159,26 Mass.App.Ct. 469
PartiesLaura GREEN, et al. 1 v. BOARD OF APPEALS OF PROVINCETOWN, et al. 2
Docket NumberNo. 87-568,87-568
Decision Date30 November 1988

Page 159

529 N.E.2d 159
26 Mass.App.Ct. 469
Laura GREEN, et al. 1
No. 87-568.
Appeals Court of Massachusetts,
Argued Jan. 5, 1988.
Decided Oct. 14, 1988.
Further Appellate Review Granted Nov. 30, 1988.

[26 Mass.App.Ct. 470]

Page 160

Michele C. Morley and Robert A. Bianchi, Hyannis, for Wyman & Wyman of Provincetown, Inc., submitted a brief.

Page 161


[26 Mass.App.Ct. 470] ARMSTRONG, Justice.

The underlying issue in this case is whether, as ruled by a judge of the Superior Court, the defendant Wyman & Wyman of Provincetown, Inc. (W & W), is required by § 1260 of the Provincetown zoning by-law to have a special permit in order to operate a Burger King franchise in premises used until 1986 by a restaurant known as Cicero's. 3 Of broader concern, however, is a question of standing: whether the plaintiffs, who would lack standing to appeal if such a special permit were granted, have standing to insist that the special permit requirement be enforced. Since the adoption of the new Zoning Act (St.1975, c. 808, § 3), a decision of this court, Chongris v. Board of Appeals of Andover, 17 Mass.App.Ct. 999, 459 N.E.2d 1245 (1984), suggested, in a dictum, that the new statute might restrict standing to demand enforcement of zoning by-laws and ordinances to persons whose property is detrimentally affected by the alleged by-law violation. A second decision, Butts v. Zoning Bd. of Appeals of Falmouth, 18 Mass.App.Ct. 249, 464 N.E.2d 108 (1984), could be read as following the view stated in Chongris. The question of standing is pivotal to the present appeal, which has caused us to reexamine the question. To avoid possible conflicting interpretations of the statute, the panel was enlarged to include all members of the panels which had decided the two earlier appeals. See Mass.R.A.P. 24(a), 365 Mass. 872 [26 Mass.App.Ct. 471] 1974). Compare Green v. Commonwealth, 13 Mass.App.Ct. 524, 435 N.E.2d 362 (1982).

The question arose in this manner. In January, 1986, the board of selectmen renewed the common victualler's license of Cicero's and scheduled a public hearing on the transfer of that license to Burger King. At the hearing the board asked the building inspector for an opinion whether the change from Cicero's to Burger King would constitute a change of use under the by-law. On February 28, 1986, the building inspector by letter advised the selectmen that the contemplated change was not a change of use and that no special permit was required. On March 6, Green, a resident 4 of Provincetown who lives (according to the defendants) two miles away from the proposed Burger King, appealed to the zoning board of appeals from the building inspector's determination, using a form prepared by the board for appeals under G.L. c. 40A, § 8. The matter was heard on April 10. On May 2, the board filed a decision with the town clerk. Green and Cape Tip Investment, Inc., an abutting property owner, appealed to the Superior Court under G.L. c. 40A, § 17.

The defendants challenged the standing of both plaintiffs: Green, as "a citizen ... zealous in the enforcement of law but without private interest," Godfrey v. Building Commr. of Boston, 263 Mass. 589, 590, 161

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N.E. 819 (1928), and Cape Tip as a business competitor 5 who should be denied standing under the line of cases represented by Circle Lounge & Grille, Inc. v. Board of Appeal of Boston, 324 Mass. 427, 86 N.E.2d 920 (1949), Waltham Motor Inn, Inc. v. LaCava, 3 Mass.App.Ct. 210, 217, 326 N.E.2d 348 (1975), and Sherrill House, Inc. v. Board of Appeal of Boston, 19 Mass.App.Ct. 274, 275-277, 473 N.E.2d 716 (1985). The judge, without ruling explicitly[26 Mass.App.Ct. 472] on the contention, implicitly recognized the plaintiffs' standing by according them the relief they sought.

On the merits, applying the second of the tests set out in Bridgewater v. Chuckran, 351 Mass. 20, 23, 217 N.E.2d 726 (1966), the judge concluded that the change from Cicero's to Burger King would effect "a difference in the quality or character, as well as the degree, of use", ibid., and would thus constitute an extension or change of a nonconforming use. That conclusion was amply supported by subsidiary findings that were amply supported by the evidence. Although the exterior of the building was not to be altered substantially and the number of seats (125) was not to be enlarged, the gross income was projected to increase from $412,000 in 1985, Cierco's last year of operation, to $1,050,000 in Burger King's first year of operation, based on a six-month season. The number of customers was expected to be double to treble that of Cicero's. The manner of operation was to be substantially different, changing from a primarily sit-down, full-service restaurant, with a secondary commerce in take-out sandwiches, pizzas, and bakery items, to a fast food, counter service operation, with the emphasis on take-out orders. The defendants' contention that a change of use is not made out unless all three of the Chuckran tests are satisfied is undercut by the very cases cited in that decision as illustrative of the application of the tests. While all three tests were satisfied in Chuckran, we have found no case, and the defendants cite none, holding all three to be requisite to a finding that change or extension has taken place. The judge recognized that an increase in the volume of business does not by itself constitute a change of use, if the increased use is attributable to growth of the original nonconforming use. Cape Resort Hotels, Inc. v. Alcoholic Licensing Bd. of Falmouth, 385 Mass. 205, 214, 431 N.E.2d 213 (1982). Here the growth would be attributable, instead, to a change in the character of the restaurant, exemplified by changes in the method of service, type of food sold, internal surroundings, and style of food preparation. It cannot be said as matter of law that such changes can never support a finding of a change of use. The question is largely one of fact. See, e.g., Hinves v. Commissioner of Pub. Works of Fall River, [26 Mass.App.Ct. 473] 342 Mass. 54, 57, 172 N.E.2d 232 (1961); Kreger v. Public Bldgs. Commr. of Newton, 353 Mass. 622, 627, 234 N.E.2d 283 (1968); Jasper v. Michael A. Dolan, Inc., 355 Mass. 17, 24, 242 N.E.2d 540 (1968). Conformably to these findings, a judgment was entered reversing the board's decision, declaring that W & W could not operate the proposed Burger King without obtaining a special permit and revoking the transfer of Cicero's common victualler's license to W & W that had been approved by the selectmen following the decision of the board of appeals. The judgment must be affirmed 6 unless the

Page 163

judge erred in his implied ruling that the plaintiffs had standing to demand enforcement of the zoning by-law.

Despite the fact that the defendants raised the question of the plaintiffs' standing repeatedly, by a motion to dismiss and by argument at trial, the plaintiffs made no evidentiary showing that they were aggrieved in the sense used in such cases as Circle Lounge & Grille, Inc. v. Board of Appeal of Boston, 324 Mass. 427, 430-431, 86 N.E.2d 920, Marrotta v. Board of Appeals of Revere, 336 Mass. 199, 202-204, 143 N.E.2d 270 (1957), Waltham Motor Inn, Inc. v. LaCava, 3 Mass.App.Ct. at 214-217, 326 N.E.2d 348, and Redstone v. Board of Appeals of Chelmsford, 11 Mass.App.Ct. 383, 384-385, 416 N.E.2d 543 (1981): i.e., having a private legal right in property so situated as to be detrimentally affected by the decision appealed from. Standing in this sense has historically been required in order to appeal from the grant of a special permit or variance. Such standing was regarded as a creature of statute and limited by [26 Mass.App.Ct. 474] statute. "An owner has no strictly private right in the enforcement of zoning regulations, unless some statute creates such right." Circle Lounge & Grille, Inc. v. Board of Appeal of Boston, 324 Mass. at 431, 86 N.E.2d 920.

Green, at trial, did not assert that she had any such private right. Rather, she was expressly asserting "the general right of the citizen to have his municipality enforce the applicable law." Brady v. Board of Appeals of Westport, 348 Mass. 515, 519, 204 N.E.2d 513 (1965). That right is not a creation of statute; it has been a recognized part of our common law from early times, Brewster v. Sherman, 195 Mass. 222, 224-225, 80 N.E. 821 (1907), and cases cited, and was traditionally enforced by a petition for a writ of mandamus. "The general rule is that, to maintain a petition for mandamus, the petitioner must show some private right or interest beyond the right and interest of the public. But when the question is one of public right and the purpose is to procure the performance of a public duty, and no other remedy is open, a petitioner need not show that he has any special interest in the result: it is sufficient that as a citizen he is interested in the due execution of the laws." Bancroft v. Building Commr. of Boston, 257 Mass. 82, 84, 153 N.E. 319 (1926) (mandamus to bar building inspector from carrying out his expressed intention to issue a permit for an apartment building that would, the plaintiffs asserted, violate the yard requirements of the building law). "Citizens ... do have rights in respect of the enforcement of zoning and like regulations. They may call upon enforcing officers to enforce the law, and if the officers decline or fail to act they may petition for a writ of mandamus." Woods v. Newton, 349 Mass. 373, 378, 208 N.E.2d 508 (1965). The right litigated in such an action is a public right, one shared by the citizens of the municipality, with the result that the judgment in the action is normally binding on citizens who are not themselves named as parties. Morganelli v. Building Inspector of Canton, 7 Mass.App.Ct. 475,...

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