Redstone v. Board of Appeals of Chelmsford

• Decision Date: 13 February 1981
• Citation: 416 N.E.2d 543,11 Mass.App.Ct. 383
• Parties: Edward S. REDSTONE et al. 1 v. BOARD OF APPEALS OF CHELMSFORD et al. 2
• Court: Appeals Court of Massachusetts

Page 543

416 N.E.2d 543

11 Mass.App.Ct. 383

Edward S. REDSTONE et al. ¹ v. BOARD OF APPEALS OF CHELMSFORD et al. ²

Appeals Court of Massachusetts, Middlesex.

Argued Jan. 19, 1981.

Decided Feb. 13, 1981.

Loring A. Cook, III, Boston (Paula J. Popeo, Boston, with him), for plaintiffs.

Richard L. Fox, Chelmsford, for Alfred E. Wilson & another.

Before PERRETTA, ROSE and KASS, JJ.

KASS, Judge.

Upon the pleadings, affidavits in support of motions for summary judgment, and a stipulation of the parties, the following undisputed facts were developed:

Alfred E. Wilson, as trustee of Old Landmark Realty Trust, obtained a variance from the board of appeals of Chelmsford to allow parking in the side yard of his premises at One Chelmsford Street at points closer to an abutting lot than the zoning by-law permitted. Wilson proposed to lease his property to Commonwealth Federal Savings and Loan Association (Commonwealth Bank) for use as a branch bank. Commonwealth Bank joined in the application for a variance.

The plaintiff Edward S. Redstone owned, and the plaintiff First Bank and Trust Company (First Bank) occupied, premises located across Billerica Street from Wilson's property. Within the meaning of G.L. c. 40A, § 11, as amended through St. 1977, c. 829, §§ 4C-4F, Redstone and First Bank were "parties in interest." Redstone at all times material was president of First Bank.

Redstone and First Bank, claiming to be "persons aggrieved" within the meaning of G.L. c. 40A, § 17, as appearing in St. 1975, c. 808, § 3, appealed under that statutory provision from the grant of the variance.

That portion of Wilson's side yard which the variance allowed him to invade was not visible from the ground level of the First Bank building and could barely be seen from the northernmost corner of Redstone's property. The owners of the premises abutting the side yard to which the variance referred ³ took the position that a five-foot landscaped buffer zone adequately protected their property.

On this state of the facts, the motion judge correctly allowed Wilson's and Commonwealth Bank's motion for summary judgment on the ground that the plaintiffs Redstone and First Bank were not "persons aggrieved" and lacked standing to prosecute the action. Accordingly, judgment was entered dismissing the action.

We said in Waltham Motor Inn, Inc. v. LaCava, 3 Mass.App. 210, 215-217, 326 N.E.2d 348 (1975), that the presumption that the owner of property nearby to the subject of an application for a variance, who receives notice of that application, is a person aggrieved recedes if the issue is contested. Once the plaintiffs' status as aggrieved persons was challenged, the question of standing "was to be determined on all the evidence with no benefit ... from the presumption as such." Marotta v. Board of Appeals of Revere, 336 Mass. 199, 204, 143 N.E.2d 270 (1957). Waltham Motor Inn, Inc. v. LaCava, supra 3 Mass.App. at 217, 326 N.E.2d 348.

Nothing offered by the plaintiffs suggests that they had any grievance to nurse about the proposed use of Wilson's property other than wishing that a competing bank should not materialize...