31B-051 (7) N.E.2d 1245 (1984) ("Aggrieved person status is no less a jurisdictional condition
to maintaining an appeal to a board of appeal under G.L. c. 40A, § 8, than it is to
maintaining judicial review under § 17"). If one attributes to the word "aggrieved"
its traditional meaning, the Appeals Court said it just right in 1984: "Thus, with
the enactment of the new Zoning Act, the Brady [Brady v. Board of Appeals of
Westport, supra]right to mandamus as a remedy for zoning violations ...
became a right to request the officer charged with enforcing local zoning to
enforce the by-law under G.L. c. 40A, § 7, and, if the requesting party is
aggrieved by the inspector's decision, a right to seek administrative relief from
the board under G.L. c. 40A, §§ 8 and 15, and, after exhausting administrative
remedies, a right to obtain judicial review pursuant to G.L. c. 40A, § 17"
(emphasis supplied). Vokes v. Avery W. Lovell, Inc., 18 Mass.App.Ct. 471, 482-
483, 468 N.E.2d 271 (1984).
Green v. Board of Appeals of Provincetown, 404 Mass. 571, 573-574, 536 N.E.2d 584, 585-
586. (1989), reversing 26 Mass. App. Ct. 469, 529 N.E.2d (1988).
Please let me know if there are questions or if anything additional is needed
concerning this appeal or anything set forth above. Please send me copies of all
communications to and from Attorney Reiter and Mr. Cohen concerning this appeal. I will of
course be happy to pay for such copies as public records. Thanks very much
Very truly yours,
Michael Pill MP/csh/L1.892.1.Capital.Video.Corp.
Copies:
Client c/o Karen Fink, Esq. and Lesley Rich, Esq.
Jennifer B. Reiter, Esq. and Adam R. Cohen, 134 North St., Northampton, MA 01060
Page 4
As residents of 134 North Street in Northampton, Attorney Reiter and Mr. Cohen are
neither abutters nor abutters to abutters within 300 feet of the locus. The burden is on them
to demonstrate that they have standing to bring this action. Such standing must be shown in
accordance with the strict standards established by Massachusetts court cases, which I
assume are known to Attorney Reiter. If you need citations, please let me know and I will
provide them.
G. L. c. 40A, § 8 makes it clear that only a "person ... aggrieved by an order of
decision of the inspector of buildings" can appeal to the zoning board of appeals. This rule
was confirmed by the Massachusetts Supreme Judicial Court in these words:
We reject the view that that word "aggrieved" as applied to a person means
different things in different parts of G.L. c. 40A. The dissenting opinion in the
Appeals Court is correct in saying that the Legislature should be presumed to
know the meaning given to these words by judicial decision. 26 Mass.App.Ct. at
481, 529 N.E.2d 159. If the Legislature had intended that a nonaggrieved
person could compel zoning enforcement by an appeal to a board of appeals and
then to court, it could easily have said so. Id. Moreover, the same words in
different parts of a statute enacted at the same time, barring some contrary
indication in the statute, should receive the same meaning. See Plymouth County
Nuclear Information Comm'n v. Energy Facilities Siting Council, 374 Mass. 236,
240, 372 N.E.2d 229 (1978). There is no such contrary indication in the
language with which we are concerned. In fact, G.L. c. 40A appears to
recognize the distinction between a right of a nonaggrieved person to seek
enforcement (see § 7) and the greater right of an aggrieved person to start an
administrative proceeding seeking to compel enforcement (see 8). Under § 7, a
person in writing may request a building inspector to enforce the zoning by-law
and is entitled to a written response. The person need not be aggrieved. To go
beyond that stage, if the request for enforcement is rejected, a party must be
aggrieved.
The Appeals Court recognized but elected not to follow statements in its own
opinions which tend to support the view that, in the circumstances of a case like
this, a person must be aggrieved in order to obtain relief through the
administrative and judicial appellate processes. See Butts v. Zoning Bd. of
Appeals of Falmouth, 18 Mass. App. Ct. 249, 253, 464 N.E.2d 108 (1984) *574
"under G.L. c. 40A, §§ 8 and 13, only a 'person aggrieved' by an order or
decision of an administrative official may appeal to the zoning board of appeals");
Chongris v. Board of Appeals of Andover, 17 Mass. App. Ct. 999, 1000, 459
Page 3
Capital Video Store on King Street are irrelevant. The fact that someone else may have had
unlawful window displays does nothing to prove that Capital Video's Northampton store on
King Street will also have unlawful window displays in the future. When the store opens, if
Attorney Reiter or Mr. Cohen believe that its window displays violate some legal requirement,
they are free to file a zoning enforcement request with the building inspector under G.L. c.
40A, § 7. This appeal should be dismissed without prejudice to their right to pursue such a
zoning enforcement request at the appropriate time (e.g. after the store opens and window
displays are installed).
Second, the so-called "Victoria's Secret" standard they are complaining about is from
the Planning Board's site plan approval hearing. The building permit only authorizes
construction in accordance with that site plan approval. The twenty day appeal period for the
site plan approval expired months ago. They are in effect attempting to appeal the site plan
approval, not the building permit.
Third, Attorney Reiter and Mr. Cohen have no standing to bring this appeal. The deed
to Jennifer B. Reiter and Adam Rabb Cohen, husband and wife, recorded in the Hampshire
Registry of Deeds at Book 8154, Page 198, shows the address of their home is 134 North
Street in Northampton, some distance away from the Capital Video store. Adam Cohen's
Declaration of Homestead recorded at Book 8154, Page 200 confirms that 134 North Street
in Northampton is his principal residence. Unless they have separated and Attorney Reiter
has established a separate domicile, I infer that 134 North Street is also her principal
residence.
Page 2
B-5"(
Michael Pill , J . D . , M . A . , Ph . D .
ATTORNEY AT LAW
37 Leverett Road,P.O.Box 242
---- Shutesbury,Massachusetts 01072
1 Phone: (413)259-1221; FAX(413)259-3727
-- - email mpill@verizon.net
March 1, 2007 Via email attachment with follow up via first class U.S. mail
TO: Northampton Zoning Board of Appeals (ZBA)
Building Commissioner, and
Planning Department
c/o:
Janet M. Sheppard, Esq., Northampton City Solicitor, City Hall, 210 Main Street,
Northampton, MA 01060; Phone (413) 585-5889; FAX (413) 586-2937; email Janet
Sheppard, Esq. <JMShep @aol.com> BBO#457820
Elaine M. Reall, Esq., Assistant Northampton City Solicitor, 20 Hampton Avenue, Suite 160,
Northampton, MA 01060; Phone (413) 584-0177; FAX (413) 586-2088; email Elaine Real,
Esq. <attyreall @comcast.net> BBO#413620
RE: Appeal to ZBA of Capital Video Building Permit by Adam Rabb Cohen and Jennifer R.
Reiter, Esq. of 134 North Street in Northampton
Request/Motion to dismiss ZBA appeal for lack of jurisdiction.
Dear Zoning Board of Appeals c/o Attorneys Sheppard and Reall:
This letter is prompted by an article in today's Daily Hampshire Gazette (Thursday,
March 1, 2007, at page A 3). That article says Jennifer R. Reiter, Esq., and Adam R. Cohen
have appealed to the Zoning Board of Appeals from a building permit issued to Capital Video
Corporation for its store on King Street. Neither Mr. Cohen nor Attorney Reiter sent me a
copy of any appeal papers. I am of course sending a copy of this letter to them.
Their appeal should be dismissed for lack of jurisdiction for three reasons.
First, they acted prematurely -- there is at this time no case or controversy.
Photographs or other evidence from Victoria's Secret stores or anywhere else other than the
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