Watros v. Greater Lynn Mental Health and Retardation Ass'n, Inc.

• Decision Date: 10 August 1995
• Citation: 421 Mass. 106,653 N.E.2d 589
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Gary WATROS & another 1 v. GREATER LYNN MENTAL HEALTH AND RETARDATION ASSOCIATION, INC., & others. 2

Page 589

653 N.E.2d 589

421 Mass. 106

Gary WATROS & another ¹ v. GREATER LYNN MENTAL HEALTH AND RETARDATION ASSOCIATION INC., & others. ²

Supreme Judicial Court of Massachusetts Middlesex.

Argued April 4, 1995.

Decided Aug. 10, 1995.

Frank J. Frisoli, Jr., Cambridge (Katharine M. Berlin, with him), for plaintiffs.

Samuel A. Vitali, Lynn, for Greater Lynn Mental Health and Retardation Ass'n, Inc.

Scott Harshbarger, Atty. Gen., & Donna L. Palermino & Stanley J. Eichner, Asst. Attys. Gen., for Com., amicus curiae, submitted a brief.

Before WILKINS, ABRAMS, O'CONNOR and GREANEY, JJ.

O'CONNOR, Justice.

The plaintiffs, Gary and Roberta Watros, filed a complaint in the Superior Court seeking review of a decision by the board of appeals of Winchester (board) granting a special permit to the defendant, Greater Lynn Mental Health and Retardation Association, Inc. (GLMHRA), to renovate and to use a barn located on land owned by the defendants Emanuel and Barbara Miliaras in order to provide shelter and education for up to three mentally handicapped adults. The plaintiffs own, and reside on, property abutting that of the Miliarases. The defendant board and the plaintiffs filed motions for summary judgment and the defendant GLMHRA filed a motion, pursuant to Mass.R.Civ.P. 12(b)(1), 365 Mass. 754 (1974), to dismiss the plaintiffs' complaint for lack of subject matter jurisdiction. A judge denied GLMHRA's motion to dismiss and the board's motion for summary judgment and, in response to the plaintiffs' motion for summary judgment, ordered judgment "annul[ling] the board's decision and revok[ing] the special permit."

GLMHRA appealed. The Appeals Court reversed the judgment without reaching the underlying merits of the case. Instead, the court concluded that the plaintiffs lacked standing to obtain judicial review of the zoning decision. Watros v. Greater Lynn Mental Health & Retardation Assoc., Inc., 37 Mass.App.Ct. 657, 666-667, 642 N.E.2d 599 (1994). A court has jurisdiction to consider a zoning appeal only if it has been brought by a person with "standing," that is, by a person who has been "aggrieved" by a board's decision. G.L. c. 40A, § 17. Green v. Board of Appeals of Provincetown, 404 Mass. 571, 574, 536 N.E.2d 584 (1989). Barvenik v. Aldermen of Newton, 33 Mass.App.Ct. 129, 131, 597 N.E.2d 48 (1992). The Appeals Court reasoned that GLMHRA's motion to dismiss was an "erroneously labelled" motion for summary judgment because GLMHRA "presented matters outside the pleadings" which were "not excluded by the court" and which the judge considered in connection with her ruling on the several motions before her including the motion to dismiss. Watros, supra at 662, 642 N.E.2d 599. Treating the motion to dismiss as a motion for summary judgment, the Appeals Court reasoned that the plaintiffs' "presumptive standing as abutters receded and their burden of going forward on standing sprang up when their unsworn complaint assertions as to aggrievement were directly challenged by the denials and affirmative defenses in the defendants' answers." Id. at 666, 642 N.E.2d 599. The court concluded that the plaintiffs failed to carry that burden, id., and accordingly ordered that "the judgments denying GLMHRA's motion to dismiss and granting summary judgment in favor of the Watroses [plaintiffs] are reversed; and a new judgment is to be entered dismissing the Watroses' complaint." Id. at 667, 642 N.E.2d 599. We allowed the plaintiffs' application for further appellate review. We shall conclude that the plaintiffs had standing to seek judicial review of the board's decision, but that the board did not exceed its authority. The board's decision to grant GLMHRA a special permit is affirmed.

Before reaching the principal issue on appeal, we pause to discuss a matter which, although not critical to the disposition of this case, seems to us to require discussion. In our view, GLMHRA's motion to dismiss was not "erroneously labelled" as the Appeals Court's opinion states, and the judge's consideration of materials outside the pleadings did not require that the motion be treated as a motion for summary judgment. Rule 12(b) of the Massachusetts Rules of Civil Procedure, 365 Mass. 754 (1974), provides in relevant part that "[e]very defense, in law or fact, to a claim for relief in any pleading ... shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: (1) Lack of jurisdiction over the subject matter; ... (6) Failure to state a claim upon which relief can be granted.... If, on any motion asserting the defense numbered (6), to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56 [Mass.R.Civ.P. 56, 365 Mass. 824 (1974) ], and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Under rule 12(b), only a motion under subsection (b)(6) shall be treated as one for summary judgment as a result of the presentation of matters being presented by a party and not excluded by the court. The motion to dismiss in this case was made pursuant to rule 12(b)(1), not 12(b)(6), and therefore the presentation of, and failure to exclude, those materials did not require that the motion be treated as a rule 56 summary judgment motion.

We turn to the question whether the plaintiffs were "aggrieved persons" within the meaning of G.L. c. 40A, § 17, so that the Superior Court had subject matter jurisdiction. The judge, unlike the Appeals Court, determined that the plaintiffs were aggrieved persons and that, therefore, they had standing to challenge the board's decision. We agree. The following facts appear to be uncontroverted. Emanuel and Barbara Miliaras own property in Winchester at 12-14 Mount Pleasant Street in a single residence zoning district. GLMHRA is a private, nonprofit educational foundation, organized under G.L. c. 180, to engage in, among other things, educational activities. GLMHRA applied for a building permit and zoning compliance certificate to renovate a barn owned by the Miliarases. The barn, an existing nonconforming accessory building, was to be used to provide shelter and education for three mentally handicapped individuals and their caretakers. A five-year lease between the Miliarases and GLMHRA, effective as of July 1, 1991, was signed by the parties on January 2, 1992.

The barn is situated at the rear of the Miliarases' 18,503 square foot lot which also contains a twenty-room two-family residential dwelling situated at the front. The house contains two distinct dwelling units, one of which is occupied by the Miliarases, the other of which is rented to tenants. At the time of GLMHRA's application for the permit, the barn was in disrepair and, since 1962, had been used exclusively for storage.

On August 26, 1991, Winchester's building commissioner refused to issue GLMHRA the requested building permit and zoning compliance certificate on the ground that to do so would violate the zoning by-laws. GLMHRA appealed to the Winchester board of appeals under § 8.8 of the zoning by-law. At the same time, GLMHRA filed an application for a special permit for the proposed use.

The plaintiffs own and reside at 10 Mount Pleasant Street on property which abuts the Miliarases' property. As abutters and, therefore, parties in interest, the Watroses received notice of GLMHRA's request for a special permit pursuant to G.L. c. 40A, §§ 11 and 15.

On January 2, 1992, the board granted a special permit to GLMHRA to utilize the barn as a home for mentally handicapped persons. The board found that "the change, extension or alteration to the nonconforming structure is equally or more appropriate to the neighborhood than the existing structure, that the special permit would comply with all other provisions of this By-law and would not adversely affect the public health, safety, welfare, comfort or convenience of the community; and that satisfactory arrangements [had] been made for ingress and egress from the property and proposed structures, off-street parking areas, refuse collection or disposal and service areas, screening and buffering, signs, required yards and other open space, and general compatibility with adjacent properties and other property in the district."

General Laws c. 40A, § 15, provides that the board of appeals must hold a hearing on any appeal and must "cause notice of such hearing to be published and sent to parties in interest as provided in section eleven." Section 15 also provides that "notice of the decision shall be mailed forthwith to the petitioner, applicant or appellant, to the parties in interest designated in section eleven," and to others. General Laws c. 40A, § 11, states: " 'Parties in interest' as used in this chapter shall mean the petitioner, abutters" and others. Thus, by statute, the plaintiffs, who were abutters to the land in question, were entitled to notice of the hearing before the board and notice of its decision. There is a presumption, therefore, that the plaintiffs were aggrieved parties within the meaning of G.L. c. 40A, § 17, and therefore had standing to bring this action. See Marotta v. Board of Appeals of Revere, 336 Mass. 199, 204, 143 N.E.2d 270 (1958); Barvenik v. Aldermen of Newton, 33 Mass.App.Ct. 129, 131, 597 N.E.2d 48 (1992); Gordon v. Zoning Board of Appeals of Lee, 22 Mass.App.Ct. 343, 347, 494 N.E.2d 14 (1986).

The aforementioned presumption is rebuttable, however. The presumption recedes when a defendant challenges the plaintiff's status as an aggrieved person and offers evidence supporting his or her challenge. See Barvenik, supra at 131 & n. 7, 597 N.E.2d 48 (the presumption of aggrievement is destroyed upon the...