Green v. Board of Appeals of Provincetown

• Decision Date: 10 April 1989
• Citation: 536 N.E.2d 584,404 Mass. 571
• Parties: Laura GREEN et al. 1 v. BOARD OF APPEALS OF PROVINCETOWN et al. 2
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 584

536 N.E.2d 584

404 Mass. 571

Laura GREEN et al. ¹ v. BOARD OF APPEALS OF PROVINCETOWN et al. ²

Supreme Judicial Court of Massachusetts Barnstable.

Argued March 6, 1989.

Decided April 10, 1989.

Robert A. Bianchi, Hyannis, for Wyman & Wyman of Provincetown, inc.

Robert W. Ritchie, Amherst, for City Solicitors and Town Counsel Ass'n, amicus curiae, submitted a brief.

Before WILKINS, LIACOS, ABRAMS, NOLAN and LYNCH, JJ.

WILKINS, Justice.

We consider on further appellate review a standing question in a zoning case that divided an enlarged panel of the Appeals Court. Green v. Board of Appeals of Provincetown, 26 Mass.App.Ct. 469, 529 N.E.2d 159 (1988). Id. at 480, 529 N.E.2d 159 (Kass, J., dissenting) (six to two decision).

In February, 1986, the Provincetown building inspector determined that no special permit was required under the zoning by-law to authorize proposed changes of activites at certain premises. The plaintiff Green, a Provincetown resident but not shown to have been aggrieved in the traditional sense by the building inspector's decision, ³ appealed to the zoning board of appeals. Only a person "aggrieved" by a decision of the building inspector may appeal to the board of appeals. G.L. c. 40A, § 8 (1986 ed.). The board of appeals affirmed the decision of the building inspector. Green appealed to the Superior Court. Cape Tip Investment, Inc., a business competitor of persons using the particular premises and not aggrieved in the traditional sense either, ⁴ joined the appeal. Only a person "aggrieved" by a decision of a board of appeals may seek judicial review. G.L. c. 40A, § 17 (1986 ed.). ⁵

The Appeals Court held that the plaintiffs, although not aggrieved parties in the traditional sense, had the right both to challenge the building inspector's decision by appealing to the board of appeals and to challenge the board's decision by appealing to the Superior Court. Deciding that the Legislature really did not mean to foreclose enforcement proceedings of this type, the Appeals Court achieved this result by substantially reading the word "aggrieved" out of the statute as applied to persons like the plaintiffs in these circumstances. At the least it gave the word a new and docile meaning for this kind of challenge brought to enforce zoning regulations, while preserving the word in its traditional sense in other applications under G.L. c. 40A. The Appeals Court has in effect preserved the right to seek enforcement of the zoning law by an action in the nature of mandamus but has recognized that, following the adoption of the Zoning Act in 1975 (St.1975, c. 808, § 3), that right must be exercised within the administrative structure and right of subsequent judicial review prescribed by G.L. c. 40A. See Brady v Board of Appeals of Westport, 348 Mass. 515, 519, 204 N.E.2d 513 (1965), as to the common law right to seek enforcement, and Vokes v. Avery W. Lovell, Inc., 18 Mass.App.Ct. 471, 482-483, 468 N.E.2d 271 (1984), as to the use of an initial administrative proceeding rather than a solely judicial route to seek enforcement of zoning regulations.

We reject the view that that word "aggrieved" as applied to a person means different things in different parts of G.L. c. 40A. The dissenting opinion in the Appeals Court is correct in saying that the Legislature should be presumed to know the meaning given to these words by judicial decision. 26 Mass.App.Ct. at 481, 529 N.E.2d 159. If the Legislature had intended that a nonaggrieved person could compel zoning enforcement by an appeal to a board of appeals and then to court, it could easily have said so. Id. Moreover, the same words in different parts of a statute enacted at the same time, barring some contrary indication in the statute, should receive the same meaning. See Plymouth County Nuclear Information Comm'n v. Energy Facilities Siting Council, 374 Mass. 236, 240, 372 N.E.2d 229 (1978). There is no such contrary indication in the language with which we are concerned. In fact, G.L. c. 40A appears to recognize the distinction between a right of a nonaggrieved person to seek enforcement (see § 7) and the greater right of an aggrieved person to start an administrative proceeding seeking to compel enforcement (see § 8). Under § 7, a person in writing may request a building inspector to enforce the zoning by-law and is entitled to a written response. The person need not be aggrieved. To go beyond that stage, if the request for enforcement is rejected, a party must be aggrieved.

The Appeals Court recognized but elected not to follow statements in its own opinions which tend to support the view that, in the circumstances of a case like this, a person must be aggrieved in order to obtain relief through the administrative and judicial appellate processes. See Butts v. Zoning Bd. of Appeals of Falmouth, 18 Mass.App.Ct. 249, 253, 464 N.E.2d 108 (1984) ("under G.L. c. 40A, §§ 8 and 13, only a 'person aggrieved' by an order or decision of an administrative official may appeal to the zoning board of appeals"); Chongris v. Board of Appeals of Andover, 17 Mass.App.Ct. 999, 1000, 459 N.E.2d 1245 (1984) ("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...