Middlesex. Civil action commenced in the Superior Court on November 11, 1974. The case was heard by Cross, J.
Keville, Goodman, & Armstrong, JJ.
Jurisdiction, Zoning. Practice, Civil, Zoning appeal, Findings by Judge, Parties, Amendment. Pleading, Civil, Amendment. Zoning, Variance. Evidence, Presumptions and burden of proof. Words, "Person aggrieved."
The opinion of the court was delivered by: Goodman
In an appeal from a decision of a city's board of appeal, the Judge did not abuse his discretion in allowing the complaint to be amended prior to judgment to add plaintiffs even though the original plaintiffs did not have standing to bring the action. [626-629]
In an appeal from a decision of a city's board of appeal granting variances to a hospital for the construction of facilities prohibited in the district, a plaintiff who was either an abutter or an abutter to an abutter to the hospital and was a home owner in the same district was a "person aggrieved" and had standing to maintain the action. [629-630]
In an appeal from a decision of a city's board of appeal granting variances to a hospital for the construction of facilities prohibited in the district, the Judge did not err in finding that there were " conditions especially affecting this parcel that d not affect the zoning district generally." [630-631]
This is an appeal by the Sancta Maria Hospital (hospital) from a judgment entered by a Superior Court Judge pursuant to G. L. c. 40A, § 21, *fn1 annulling a decision of the board of appeal of Cambridge (board) which granted to the hospital variances necessary for the construction of a professional office building and parking garage at 799 Concord Avenue in Cambridge. The hospital is a nonconforming use located in a Residence B zoning district in the city of Cambridge. The facility it proposes to build is prohibited in Residence A and B districts but not elsewhere.
The board's decision was filed with the city clerk on October 21, 1974; and on November 11, 1974, one Richard Cahill and the Cambridge Highlands Neighborhood Association (association) appealed to the Superior Court praying that the board's decision be annulled. The hospital *fn2 filed an answer and moved to dismiss on the ground (among others) that "either plaintiff is aggrieved by the decision of the Board of Appeals." Thereupon on January 22, 1975, after hearing, the plaintiffs' motion to file an amended complaint was allowed. The amended complaint added a number of individuals as plaintiffs, including James Rafferty and William Wagner, the present appellees. The amended complaint alleges that Richard Cahill owns real estate lying "approximately 250 feet from the lot of defendant Sancta Maria Hospital" and that the association "is an unincorporated association of owners of real estate and residents living in close proximity to defendant Sancta Maria Hospital." The hospital filed an answer denying those allegations and alleging that "one of the plaintiffs aggrieved by the decision of the Board of Appeals." Subsequently, on January 28, 1975, the Superior Court remanded the case to the board "to make further subsidiary findings" and retained jurisdiction. On February 7, 1975, the board filed additional findings, and the case was tried on February 11 and February 13, 1975. The Judge filed "Findings, Rulings and Order for Judgment" and entered a judgment annulling the decision of the board and dismissing the complaint as to all the plaintiffs except Rafferty and Wagner. This appeal followed.
The hospital argues that (1) the Superior Court had no jurisdiction to hear the appeal from the board since the initial plaintiffs had no standing, (2) the added plaintiffs are not "persons aggrieved," and (3) the statutory requisites for the granting of a variance were established by the evidence.
1. The major premise of the hospital's jurisdictional argument is the statement in Marotta v. Board of Appeals of Revere, 336 Mass. 199, 202-203 (1957), that he Superior Court had no jurisdiction to consider the case unless an appeal . . . was taken by an aggrieved person." Its minor premise is that neither Cahill nor the association, the initial plaintiffs, was a "person aggrieved." From these the hospital asks us to conclude that the Superior Court had no power to allow the plaintiffs' motion to amend by adding Wagner and Rafferty as plaintiffs.
We accept the hospital's minor premise, since the motion to dismiss as against the two initial plaintiffs was properly allowed. Reliance cannot be placed upon the allegations in their complaint describing them and their interest, because those allegations were denied in the hospital's answer, which also raised the issue of the plaintiffs' standing. See Carey v. Planning Bd. of Revere, 335 Mass. 740, 744-745 (1957). Thus whatever presumption placing the burden of going forward upon the hospital might have arisen from the allegations in the complaint, had they not been denied, has no place in this case; nor was any attempt made to introduce evidence to sustain the plaintiffs' burden of proving standing. See Discussion and cases collected in Waltham Motor Inn, Inc. v. LaCava, 3 Mass. App. Ct. 210, 213-215 (1975). *fn3
Though the action was properly dismissed as against the initial plaintiffs, that did not vitiate the prior amendment adding a party with standing. That the action before such an amendment was flawed does not necessarily preclude a curative amendment though the flaw is described as "jurisdictional." Pierce v. Board of Appeals of Carver, 369 Mass. 804, 810-811 (1976), discussing Shaughnessy v. Board of Appeals of Lexington, 357 Mass. 9 (1970), and pointing out that the court in the Shaughnessy case allowed the late joinder of a member of the board though the failure to give him timely notice was termed "jurisdictional." See Cuzzi v. Board of Appeals of Medford, 2 Mass. App. Ct. 887 (1974), following the Shaughnessy case. City Council of Peabody v. Board of Appeals of Peabody, 360 Mass. 867 (1971), is directly in point; the court in that case held that the Superior Court might allow a motion to substitute the mayor for the city council where the city council had no standing. Nor does it appear that this was considered a merely formal defect (cf. Board of Health of Woburn v. Sousa, 338 Mass. 547, 548 ); the court pointed out that the Legislature had (St. 1969, c. 706) explicitly excluded from G. L. c. 40A, § 21, any standing for a municipal board.
These cases evince a policy of broad powers of amendment -- "more liberal than elsewhere," Wadsworth v. Boston Gas Co., 352 Mass. 86, 88 (1967) -- which has characterized our practice. Particularly relevant is the familiar law that an amendment may be allowed which would bring in a party who, when added, would have been barred by a statute of limitations from commencing an independent action and, indeed, that this is a reason to permit the amendment. Wadsworth v. Boston Gas Co., 352 Mass. at 88. *fn4 Walsh v. Curcio, 358 Mass. 819 (1971). Nor would the characterization of the limitation period as a "limitation upon the right as well as the remedy" appear to be significant. Bressler v. Averbuck, 322 Mass. 139, ...