Agenda - Planning Commission - 04/07/2011

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Zoning Bulletin January 10, 2011 Volume 51 No. 1 cial property in the town. He also held a mortgage on property abut- ting the Warringtons' property. He reportedly believed that "[i]nconsis- tent enforcement of zoning adversely affects the development and sale of [his] residential real estate and adversely affects the rental [value] of [his] commercial real estate." The town's building inspector "agreed with Blair's position." Howev- er, he refused to issue the requested cease and desist order. Blair appealed to the town's zoning board of appeals (the "Board "), The Board eventu- ally issued a cease and desist order against the Warringtons. The Warringtons then appealed to the superior court. They argued that the Board's enforcement order was - invalid because Blair did not have standing to appeal from the building inspector's denial of Blair's en- forcement request. The Warringtons argued that there were no material issues of fact in dispute, and asked the court to issue summary judgment in their favor on the law alone. The Board and Blair opposed the Warringtons' motion for summa- ry judgment. They argued that the Warringtons had waived the issue of standing because they had failed to challenge Blair's standing during the administrative proceedings (i.e., when the enforcement issue was before the Board). The judge agreed with the Board and Blair. Summary judgment was issued in favor of the Board and Blair. The Warringtons appealed. DECISION: Reversed. The Appeals Court of Massachusetts held that the issue of whether Blair had standing as a "person aggrieved" was jurisdictional and thus could not be waived. The court explained that, under Massachusetts statutory law —G.L. c. 40A, § 8 —a "person aggrieved" has the right to "start an administrative proceeding seeking to compel enforcement" of zoning regulations. The same standing requirement —that the person be aggrieved — governs ap- peals from a zoning board to the court under G.L. c. 40A, § 17. With the standing requirement of § 17, "[a] well- developed body of law holds that `[s]tanding is an issue of subject matter jurisdiction. "' Therefore, lack of standing cannot be waived and may be raised at any stage of the proceedings. Since "person aggrieved" means the same thing in § 8 as it does in § 17, the court concluded that just as status as an ag- grieved person is a jurisdictional condition to maintaining an appeal to court under § 17, so too then status as an aggrieved person is a jurisdic- tional condition to maintaining an appeal to a board of appeals under § 8. The court concluded therefore that "the standing requirements of 8, like the standing requirements of § 17, [cannot be] waived by failure to raise them before the board." © 2011 Thomson Reuters 5