Green v. Board of Appeals of Provincetown

Kass, J.

(with whom Cutter, J., concurs, dissenting). I respectfully dissent. By the time the Legislature established a statutory right to appeal to a board of appeals from inability *481 to obtain enforcement action by a building inspector (see G. L. c. 40A, § 8, as inserted by St. 1975, c. 808, § 3), 1 the words “person aggrieved” had acquired some twenty-five years worth of decisional veneer. See Circle Lounge & Grille, Inc. v. Board of Appeal of Boston, 324 Mass. 427, 430-431 (1949) (“Commonly a person aggrieved is one whose legal rights have been infringed .... An owner has no strictly private right in the enforcement of zoning regulations, unless some statute creates such right” [citations omitted]); Marotta v. Board of Appeals of Revere, 336 Mass. 199, 202-204 (1957); Bradshaw v. Board of Appeals of Sudbury, 346 Mass. 558, 560 (1963); Building Inspector of Acton v. Board of Appeals of Acton, 348 Mass. 453, 457 (1965); Waltham Motor Inn, Inc. v. LaCava, 3 Mass. App. Ct. 210, 213-215, 217 (1975).

I am unwilling to assume that in 1975 the Legislature used the words “person aggrieved” in § 8 of “new” c. 40A in a fit of absence of mind. Indeed, it is a familiar canon of construction that “it . . . must be presumed that the Legislature knew preexisting law and the decisions of [the] court.” Condon v. Haitsma, 325 Mass. 371, 373 (1950). Building Inspector of Mansfield v. Curvin, 22 Mass. App. Ct. 401 , 405 n.7 (1986) (construing a provision of G. L. c. 40A, § 3). Had the Legislature wished to confer enforcement power on “any inhabitant of the city or town in which the land lies” it could have done so, instead of employing what had become a term of art.

The boards of appeal, the bar, and the public are better served by a unitary meaning, for zoning law purposes, of the term “person aggrieved,” rather than having it mean one thing under § 8 and another under § 17 of c. 40A. Confusion is certain to flow from the dual standard adopted by the majority. That dual standard produces an anomalous consequence: only a person with a palpable interest may appeal from the action of a board of appeals while anybody, irrespective of interest, *482 may appeal from a decision of the building inspector, whose decision may be less consequential than that of the board.

Municipal mischief is unlikely to run rampant absent a “citizen’s right” to enforce the zoning law. One has only to contemplate the volume of zoning litigation to realize that our cities and towns are adequately supplied with watchdogs who meet the traditional aggrieved person test. There ought to be particular comfort on that score by reason of the identification by the 1975 zoning act as “parties in interest” all “abutters, owners of land directly opposite on any public or private street or way, and abutters to the abutters within three hundred feet of the property line of the petitioner . . . , notwithstanding that the land of any such owner is located in another city or town, the planning board of the city or town, and the planning board of every abutting city or town.” G. L. c. 40A, § 11, as amended by St. 1979, c. 117. That language simultaneously establishes a fair-sized reserve of combatants for the zoning wars and sets limits upon those eligible to protest. The Legislature’s care in defining who are “parties in interest” for purposes of the Zoning Act constitutes another reason for reading the words “aggrieved person” in § 8 in the usual limiting sense in which they are understood in zoning cases. Perhaps significantly, when the Legislature in 1979 amended the definition of “parties in interest” which appears in G. L. c. 40A, § 11, it narrowed the category. If none among the considerable category which remains — whether private persons or public officials — is moved to raise the hue and cry about an act or decision of a building inspector or board of appeals, one may question the wisdom of our inviting additional parties into the ranks of qualified litigants.

The “old” Zoning Enabling Act, inserted by St. 1954, c. 368, § 2, had empowered municipalities to confer an analogous right by zoning by-law or ordinance. That provision appeared in the second paragraph of § 13 of the “old” c. 40A.