Kelley v. J&M Marina Properties Trust

4 Mass. L. Rptr. 14

• Court: Massachusetts Superior Court
• Decided: April 11, 1995
• Docket: No. 941839
• Status: Published

Opinion

Zobel, J.

Plaintiff, a member of the Town of Duxbury Planning Board, seeks in this action to compel judicial review of a decision by that very Board.

The parties argued the matter fully, in essence treating an omnibus motion under Rule 12 as though it were a motion for summary judgment.

The movant’s central contention was that a member of a body who was outvoted in a particular matter cannot appeal the majority’s decision. Plaintiff, through counsel, argued vigorously to the contrary, but was unable (either then or later) to furnish any authority supporting his position.

Allowing an appeal in these circumstances would encourage litigation by any dissenter from any municipal deliberative body. In the absence of authority refuting the practical, commonsense view that only a aggrieved party (or statutorily designated appellant) can appeal an adverse board ruling, this Court declines to allow Plaintiff the extraordinary relief he seeks.

ORDER

Accordingly, it is Ordered, that the Motion herein be Allowed, and that judgment enter forthwith: “Complaint Dismissed with Prejudice.”