5 Mass. App. Ct. 624 | Mass. App. Ct. | 1977
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,:
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
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 [t]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)
Though the action was properly dismissed as against the initial plaintiffs, that did not vitiate the prior amendment
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.
We do not find persuasive the hospital’s contention that the new plaintiffs could become parties only by moving to intervene pursuant to the clause in G. L. c. 40A, § 21, as amended through St. 1974, c. 78, § 1, which provided that “[o]ther interested persons may be permitted to intervene, upon motion.” (The hospital appears to concede that intervention under that unqualified provision would have been proper.) No issue concerning the applicability of the Massachusetts Rules of Civil Procedure was raised in the Superior Court at the hearing on the motion of the initial plaintiffs to amend, or otherwise. Further, the distinction in this case between a motion to intervene and a motion to amend by adding plaintiffs is purely formal, for it appeared at the hearing on the motion that it was being made with the consent of the added plaintiffs, who were thereafter represented by the same counsel as represented the initial plaintiffs. See Jones v. United Gas Improvement Corp. 68 F.R.D. 1, 5 (E.D.Pa. 1975); 6 Wright & Miller, Federal Practice and Procedure § 1474, at 386 (1971) (“Finally, a party may make a Rule 15 (a) amendment to add, substitute, or drop parties to the action”). Whether we treat the new plaintiffs as parties added by an amendment which relates back to the original complaint or as interveners makes no difference in the circumstances of this case. Unless conditions have been imposed, “an intervenor in an action or proceeding is, for all intents and purposes, an original party.” In re Raabe, Glissman & Co., Inc., 71 F. Supp. 678, 680 (S.D.N.Y. 1947). 7A Wright & Miller, Federal Practice and Procedure § 1920, at 611 (1972). Further, in our practice prior to the new rules, intervention has been allowed though the original parties had no standing. Attorney Gen. v. Henry, 262 Mass. 127, 128-131 (1928). See
Nor do we see any substantive reason to limit the broad amendment powers exercised under our practice so as not to apply where (as here) the original parties do not have standing. It is true that the intrusion of such parties may lead to harassment and complicate the litigation to the prejudice of an applicant for relief from the zoning laws. See Save the Bay, Inc. v. Department of Pub. Util., 366 Mass. 667, 672. However, whether a party is “aggrieved” is a matter of degree (see e.g., Carey v. Planning Bd. of Revere, 335 Mass. at 742; Williams v. Building Commr. of Boston, 1 Mass. App. Ct. 478, fn.l, 481 [1973]); and the variety of circumstances which may arise seems to call for the exercise of discretion rather than the imposition of an inflexible rule. No abuse of discretion has been shown in this case.
2. The hospital’s attack on Rafferty’s standing fails. The evidence indicates that Rafferty is either an abutter to the hospital or an abutter to such an abutter. In either case Rafferty’s entitlement to notice as one of “the owners of all property... to be affected,” pursuant to G. L. c. 40A, § 17, as amended through St. 1973, c. 296, § 2,
3. We now turn to the merits. At the end of the hospital’s case the judge advised the parties that (accepting the hospital’s evidence) “I do not find... from what I have heard, any conditions especially affecting this parcel that do not affect the zoning district generally.” We cannot say that this finding, included, in effect, in his “Findings, Rulings and Order for Judgment,” is clearly erroneous.
Judgment affirmed.
The statutory references in this opinion are to the provisions of The Zoning Enabling Act (which is applicable to this case) as in effect prior to St. 1975, c. 808, § 3.
The board filed an appearance and a notice of appeal from the final judgment. It does not appear to have otherwise participated in the case.
Our approach in dealing with Cahill and the association without distinction is not in any way an indication that the association’s standing as a party is not otherwise defective. See Save the Bay, Inc. v. Department of Pub. Util., 366 Mass. 667, 675 (1975).
The Wadsworth case is cited in the Reporters’ Notes to Mass.R.Civ.P. 15, appearing in Mass. Ann. Laws, Rules of Civil and Appellate Procedure at 288 (1974); and the Massachusetts practice is preserved in Rule 15(c), 365 Mass. 762 (1974), which provides unqualifiedly that “[w]henever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment (including an amendment changing a party) relates back to the original pleading.” Contrast rule 15 (c) of the Federal rules. See Smith & Zobel, Rules Practice § 15.9 (1974). Cf. Jessie v. Boynton, 372 Mass. 293, 295 (1977), citing Castellucci v. United States Fid. & Guar. Co. 372 Mass. 288, 289-290 (1977).
General Laws c. 40A, $ 17, as so amended, provided in pertinent part: “The Board of Appeals shall fix a reasonable time for the hearing of ... any petition for a variance, and shall... send notice by mail, postage prepaid, to the petitioner and to the owners of all property deemed by the board to be affected thereby including the abutters and the owners of land next adjoining the land of the abutters —”
Our determination that Rafferty has standing makes it immaterial whether Wagner can be said to have standing in the circumstances of this case. See Circle Lounge & Grille, Inc. v. Board of Appeal of Boston, 324 Mass. 427, 431-432 (1949).
We note that the “Findings, Rulings and Order for Judgment” by the judge merely states that, after a view and after hearing the evidence, he is “unable to find” the various criteria for a variance including the requirement “that the conditions affecting the parcel do not affect the Residence B zone generally.” These “Findings, Rulings and Order for Judgment” cannot be said to comply with the requirements of Mass.R.Civ.P. 52(a), 365 Mass. 816 (1974). And such findings were required as well when (as in this case) the judge found that the hospital had not satisfied its burden (see Hunt v. Milton Sav. Bank, 2 Mass. App. Ct. 133, 138 [1974]; see also Josephs v. Board of Appeals of Brookline, 362 Mass. 290, 292 [1972]) of justifying the variance and allowed the plaintiffs’ “Motion for Dismissal” (which requested annulment of the variance on the ground that the hospital “failed to meet its burden of proof with respect to the statutory criteria...”). In the posture of this case this motion is the functional equivalent of an ordinary motion for dismissal by a defendant under Mass.R.Civ.P. 41(b)(2), 365 Mass. 804 (1974), on the ground that the evidence at the end of the case, presented by a plaintiff with the burden of proof, was insufficient. Judgment having been entered on the merits on the basis of that motion, the judge was required under Mass.R.Civ.P. 41(b) (2) to “make findings as provided in Rule 52(a).” Our review — as in any case where the judgment is based on findings under rule