Sherrill House, Inc. v. Board of Appeal of Boston

• Decision Date: 01 April 1985
• Parties: SHERRILL HOUSE, INC. v. BOARD OF APPEAL OF BOSTON et al. 1
• Court: Appeals Court of Massachusetts

Page 716

473 N.E.2d 716

19 Mass.App.Ct. 274

SHERRILL HOUSE, INC. v. BOARD OF APPEAL OF BOSTON et al. ¹

Appeals Court of Massachusetts,

Suffolk.

Argued Dec. 6, 1984.

Decided Jan. 29, 1985.

Further Appellate Review Denied April 1, 1985.

R.K. Gad, III, Boston, Edna H. Travis, Newton, for plaintiff.

John J. Russell, Boston, for Ronald J. Carlow.

Before GREANEY, C.J., and KASS and FINE, JJ.

FINE, Justice.

Sherrill House, Inc., is a nursing home for the elderly located on South Huntington Avenue in Boston. Immediately next door to it is the property which is the subject of this controversy (the locus). It was formerly the site of the Longwood Hospital. Its present owner, Ronald J. Carlow, proposes that it be used in the future as a correctional facility for 125 males sentenced for driving while intoxicated.

Both Sherrill House and the locus are located within a district zoned as R-8 (general residential) under the Boston Zoning Code (the Code). Under the Code it is forbidden that property within a general residential district be used as a nursing home, hospital or correctional facility. Both Sherrill House and the Longwood Hospital operated lawfully as nonconforming uses. Carlow applied to the Boston zoning board of appeal (board) under § 9-2 of the Code for permission to change the nonconforming use from a hospital to a correctional facility. After a hearing, the board granted a permit authorizing the use change, with certain stated conditions relating, among other things, to the size and characteristics of the inmate population.

Sherrill House had opposed the application before the board and, after the board acted, brought an action under St.1956, c. 665, § 11, in the Superior Court for judicial review of the issuance of the permit. Sherrill House argues that the board's decision should be annulled for the reasons that (1) the right of the owner of the locus to ask for a change of nonconforming use had lapsed and (2) the proposed substitute use would have adverse effects on the neighborhood. After a hearing on the merits, the judge ruled that Sherrill House was not an aggrieved party and lacked standing to prosecute the action and, therefore, the complaint was dismissed. ² We affirm.

The Boston Zoning Enabling Act, St.1956, c. 665, § 11, as appearing in St.1974, c. 669, § 1, provides that "[a]ny person aggrieved by a decision of [the] board of appeal, whether or not previously a party to the proceedings, or any municipal board or officer, may appeal to the superior court ...." Because the language in the Boston Zoning Enabling Act is, in this respect, identical to that in G.L. c. 40A, § 17, as appearing in St.1982, c. 533, § 1, we may look beyond Boston cases to determine the meaning of aggrieved status for these purposes. See Circle Lounge & Grille, Inc. v. Board of Appeal of Boston, 324 Mass. 427, 432-433, 86 N.E.2d 920 (1949). This is not a case which is governed by a presumption of standing. Had no evidence been presented on the issue of standing, Sherrill House, as an immediate abutter and thus entitled to receive notice of a public hearing, would have had the benefit of a presumption that it was an aggrieved party. Marotta v. Board of Appeals of Revere, 336 Mass. 199, 204, 143 N.E.2d 270 (1957). Since the judge heard the entire case on the merits, he was obliged to decide the issue of standing "on all the evidence with no benefit to the plaintiffs from the presumption as such." Id. at 204, 143 N.E.2d 270. Although a judge is not to construe the words "person aggrieved" narrowly (id. at 204, 143 N.E.2d 270), the plaintiff bears the burden of proof, aggrievement is "a matter of degree," and "the variety of circumstances which may arise seems to call for the exercise of discretion rather than the imposition of an inflexible rule." Rafferty v. Sancta Maria Hosp., 5 Mass.App. 624, 629, 367 N.E.2d 856 (1977).

We agree with Sherrill House that it has more than a general civic interest in enforcing the zoning ordinance and might incur tangible harm as a result of the maintenance of a correctional facility next door. Even if it proved no more than the likelihood of fear of harm on the part of its clients, visitors and employees, we would not say that a proper party would lack standing to raise these issues. As Sherrill House was an institutional user operating under a prior nonconforming use, however, we do not view it as a proper party because it has no legitimate interest in preserving the integrity of the district as a residential one.

In our view, this case falls within the reasoning of Circle Lounge & Grille, Inc., 324 Mass. at 431, 86 N.E.2d 920. In ruling on a claim of standing on the part of the owner of a restaurant located in a business district to object to a variance for another restaurant to be located nearby, but in a residential district, the court said: "The primary purpose of zoning with reference to land use is the preservation in the public interest of certain neighborhoods against uses which are believed to be deleterious to such neighborhoods.... The residence zone in which the ... land is located was established to protect that zone against business and manufacturing uses. It was not established to protect the plaintiff's restaurant, which is located in a business zone. The residence zone was designed to protect residence against business. It was not designed to protect business against business." Id. at 431, 86 N.E.2d 920. Thus, the court ruled that "a proprietor in a less restricted zone is not a 'person aggrieved' within the meaning of the statute by the introduction into a more restricted zone of any use permitted in the zone in which the proprietor's property is located." Id. at 432, 86 N.E.2d 920. We can discern no valid distinction between the situation of one using his property for a nonconforming use within a residential district and one using his property for a similar use in a nearby less restrictive zone. Circle Lounge & Grille, Inc. was followed by our decision in Waltham Motor Inn, Inc. v LaCava, 3 Mass.App. 210, 217, 326 N.E.2d 348 (1975). In that case certain parties were deemed to lack standing because they could have no "legitimate interest in preserving the integrity of the district from the introduction of further like uses." Although both Circle Lounge &...