Waltham Motor Inn, Inc. v. LaCava

326 N.E.2d 348, 3 Mass. App. Ct. 210, 1975 Mass. App. LEXIS 621
CourtMassachusetts Appeals Court
DecidedApril 17, 1975
StatusPublished
Cited by44 cases

This text of 326 N.E.2d 348 (Waltham Motor Inn, Inc. v. LaCava) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Waltham Motor Inn, Inc. v. LaCava, 326 N.E.2d 348, 3 Mass. App. Ct. 210, 1975 Mass. App. LEXIS 621 (Mass. Ct. App. 1975).

Opinion

Grant, J.

These are two bills in equity by which the remaining plaintiffs named therein 4 seek to challenge separate decisions of the city council of Waltham (council) by which the council granted special permits (see G. L. c. 40A, § 4) for the construction and operation of a hotel and a “hotel/motel,” respectively, in a limited commercial zoning district. Both bills purport to be brought under G. L. c. 40A, § 21. 5 The defendants in each bill filed a “plea in bar” which asserted, in effect, that none of the plaintiffs was a “person aggrieved” within the meaning of § 21. 6 The pleas were heard together on statements and agreements of counsel. The judge made findings, ruled that none of the remaining plaintiffs in either bill was a person aggrieved within the meaning of § 21, and entered interlocutory decrees sustaining both pleas. The remaining plaintiffs have appealed from those decrees and from final decrees dismissing the bills.

The remaining plaintiffs in the first case seek to challenge the council’s grant in 1969 of a special permit to the trustees of Paino-LaCava Realty Trust for the construction and operation of a hotel on a parcel known as 380 Winter Street. 7 The remaining plaintiffs in the first case

*212 are Waltham Motor Inn, Inc., Ralph and Arthur Gilbert (the Gilberts), and one Aaron Soltes. The target in the second case is the council’s grant in 1973 of a special permit to the trustees of P and L Realty Trust for the construction and operation of a hotel/motel on a parcel known as 420 Totten Pond Road. The remaining plaintiffs in the second case are Waltham Motor Inn, Inc. and one Richard D. Olen. 8

Waltham Motor Inn, Inc., a corporation, is, and at all material times has been, the lessee from Paino-LaCava Realty Trust of the parcel and buildings known as 372 Winter Street. The buildings on this parcel consist of a hotel or motel (Holiday Inn) which was built pursuant to a variance obtained by the trust from the board of appeals in 1961 and which, since the inception of the lease, has been operated by the corporation. The lease from the trust to the corporation contains several options in the corporation to renew for various periods, and the parties have characterized the lease as one for ninety-nine years. The corporation was not given written notice of either of the public hearings held by the council on the applications for the special permits in question (see G. L. c. 40A, § 17) , 9 but its counsel appeared at both hearings and opposed both applications.

*213 The Gilberts have been the owners since 1968, either as partners or as trustees of Winter Street Trust, of the parcel and buildings known as 385 Winter Street. The buildings consist of a motel operated by the Gilberts which was originally known as Charter House but is now known as Waltham Motor Inn. 10 The Gilberts were given written notice by the council of the public hearing held on the application for the special permit granted in the first case. The second case has been argued on the footing that the Gilberts received no such notice of the hearing held in that case. Their counsel appeared in opposition to the applications in both cases.

The parcels known as 372, 380 and 385 Winter Street and the one known as 420 Totten Pond Road all lie within the same Limited Commercial district, in which “hotels, motels... [and] hotel/motels” are authorized by the zoning ordinance (art. XII, § 21-26) if a special permit is obtained from the council. The plaintiff Soltes owns a residence at 15 Cedar Hill Lane in Waltham, which is at least a mile distant from the parcel at 380 Winter Street and hes in a Residential A-3 zoning district. The plaintiff Olen owns a residence at 73 Totten Pond Road in Waltham, which is a mile distant from the parcel at 420 Totten Pond Road and lies in a Residential A-2 district.

Although it has been said that “[t]he words ‘person aggrieved’ in such statutes as c. 40A, § 21, are not to be narrowly construed” (Marotta v. Board of Appeals of Revere, 336 Mass. 199, 204 [1957]), the only case which enunciates specific guidelines for identifying a “person aggrieved” is Circle Lounge & Grille, Inc. v. Board of Appeal of Boston, 324 Mass. 427 (1949), in which it was held under a counterpart of the present § 21 that a proprietor in a less restricted zone is not aggrieved by the introduction into a more restricted zone of a use permitted in the zone in which the proprietor’s property is located. That case *214 rejected the notion that a statutory provision such as § 21 affords an owner a “private right in the enforcement of zoning regulations” (324 Mass. at 431), requires a private party claiming to be aggrieved by a decision of a board of appeals 11 to demonstrate that he is “one whose legal rights have been infringed” (324 Mass, at 430), and determined that a private party is not “aggrieved within the meaning of the statute... merely because a variance 12 ... will increase competition in business” (324 Mass, at 430).

A review of the cases in which there has been occasion to determine whether a private party is a “person aggrieved” within the meaning of c. 40A, § 21, reveals that in the absence of any specific evidence on the question whether a particular plaintiff has a legal right which has been infringed, the court has relied either on what it has expressly characterized as a presumption or on various rules of reason which we think are also to be characterized as presumptions. Thus, it was expressly held in Marotta v. Board of Appeals of Revere, 336 Mass. 199, 204 (1957), that “there is a presumption that property owners to whom the board in the performance of its statutory obligation has sent notice as persons ‘deemed by the board to be affected thereby’ 13 have an interest and are persons aggrieved.” A study of other cases discloses the existence of a presumption that a nearby owner of property lying in the same or in a substantially similar type of zoning district is a party aggrieved within the meaning of § 21 (see Reynolds v. Board of Appeal of Springfield, 335 Mass. 464, 469, 470 [1957]; Colabufalo v. Board of Appeal of Newton, 336 Mass. 213, *215 217 [1957]; Vainas v. Board of Appeals of Lynn, 337 Mass. 591, 591, 594 [1958]; Smith v. Board of Appeals of Plymouth, 340 Mass. 230, 231, 232 [1960]; compare Carey v. Planning Bd. of Revere, 335 Mass. 740, 742, 743-744 [1957] [decided under parallel provisions of G. L. c. 41, § 81BB]; Building Inspector of Acton v.

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Bluebook (online)
326 N.E.2d 348, 3 Mass. App. Ct. 210, 1975 Mass. App. LEXIS 621, Counsel Stack Legal Research, https://law.counselstack.com/opinion/waltham-motor-inn-inc-v-lacava-massappct-1975.