FREI v. WEST (2023)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, a member of the planning board of Holland (board), filed a complaint under G. L. c. 40A, § 17, purporting to challenge the board's constructive approval of a special permit application filed by defendant Albert West, Jr. A Land Court judge dismissed the complaint on the ground of lack of standing, and the plaintiff appeals. We affirm.

General Laws c. 40A, § 17, provides that “[a]ny person aggrieved” or “any municipal officer or board” may appeal to specified courts, including the Land Court, a decision of a zoning board of appeals or a special permit granting authority. The plaintiff here claims that he qualifies as a “municipal officer” with standing to bring an appeal under § 17. We agree with the judge that § 17 does not extend so far.

“The § 17 grant of standing to municipal officers and boards is exceptional in that it does not require any showing of injury to a legally protected interest.” Planning Bd. of Marshfield v. Zoning Bd. of Appeals of Pembroke, 427 Mass. 699, 702 (1998). For this reason “the provision must be construed narrowly so as to minimize the class of parties who have suffered no legal harm, yet ‘can compel the courts to assume the difficult and delicate duty of passing upon the validity of the acts of a coordinate branch of government.’ ” Id., quoting Ginther v. Commissioner of Ins., 427 Mass. 319, 322 (1998).

In Carr v. Board of Appeals of Medford, 334 Mass. 77 (1956), the court, analyzing the predecessor statute to § 17, placed two limitations on the statute's grant of standing to municipal officers. First, the court concluded that “the right of appeal must be limited to such municipal officers as have some duties to perform in relation to the building code or zoning.” Id. at 80. Second, the court concluded that a member of a municipal body -- there, the city council -- “has no such interest in the subject of the ․ building code or zoning ordinances that he can, acting alone or with other members of the council in their individual capacity and not as a body, maintain an appeal” (emphasis added). Id. See Planning Bd. of Marshfield, 427 Mass. at 701 (extending Carr's holding to appeals under § 17).

Applying this second limitation, we held in Harvard Square Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491, 496 (1989), that neither a city councillor nor members of a citizens advisory group were “municipal officers” with standing to appeal under § 17. As to the city councillor, we concluded that his “status as one member of the ordinance committee of the city council [did] not give him standing as an individual to maintain an appeal under § 17.” Id. at 496 n.10. Similarly, after assuming that the citizens advisory group was a municipal body, we concluded that “because the two members who [were] parties to [the] suit [were] acting in their individual capacities, their status [fell] squarely within the Carr analysis.” Id. at 497.

The plaintiff in this case is identically situated to those in Carr and Harvard Square Defense Fund, Inc., for purposes of assessing standing. Although the board itself might have standing under § 17 to appeal “as a body,” the plaintiff cannot maintain an appeal “in [his] individual capacity” as one of the board's members. Carr, 334 Mass. at 80. Were we to hold otherwise, a logical extension of such a holding would be that, whenever a municipal board with duties relating to the building code or to zoning issues a decision that is not unanimous, the dissenting member or members of the board would be entitled to appeal the decision of the majority. We are confident that the Legislature did not intend this result as it “would greatly impair the effective operation of the statute.” Id. The judge was thus correct to dismiss the complaint for lack of subject matter jurisdiction. See Planning Bd. of Marshfield, 427 Mass. at 703.

Judgment affirmed.