Opinion
10-P-1949
10-07-2011
BOARD OF SELECTMAN OF REHOBOTH v. ROGER BREAULT.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This case is the latest installment in an apparently dysfunctional relationship in the town of Rehoboth (town) between the board of selectmen (board) and the zoning board of appeals (ZBA). See Breault v. Rehoboth, U.S. Dist. Ct. App., No. 1:10-10009-PBS (1st Cir. October 5, 2010), in which Breault alleged a violation of his constitutional rights by the board's refusal to provide counsel to the ZBA in connection with a G. L. c. 40A, § 17, appeal brought by the town.
Breault's status as a party in the case was purely in an official capacity. It is entirely settled law that an individual has no standing to prosecute litigation on behalf of a board on which he or she sits. Both the United States District Court in Massachusetts and the judge below have so ruled in connection with Breault's attempts to circumvent the rule. '[O]ne member of a public board . . . cannot act separately and individually' in a matter. State Bd. of Retirement v. Contributory Retirement Appeal Bd., 342 Mass. 58, 59 (1961). See Carr v. Board of Appeals of Medford, 334 Mass. 77, 80 (1956).
Additionally on March 28, 2011, this court issued a memorandum and order of dismissal in Rehoboth v. Rehoboth Zoning Bd. of Appeals, 2010-P-1367, noting that a judge of the Land Court 'ruled that the ZBA was not entitled to appear separately (or to intervene) in the action or to be permitted to hire (or retain pro bono) counsel to defend its vote.' In the expectation that it will not be necessary to reemphasize this principle to these parties again, we decline to award appellate attorney's fees on this occasion.
We acknowledge that the town has submitted a motion to dismiss this appeal on grounds of mootness as well. Our view of the case does not require us to reach this issue.
Order dated March 11, 2010, allowing motion to strike appearance and filings of Roger Breault affirmed.
Order dated August 24, 2010, allowing joint motion to vacate nisi dismissal and substitute entry of agreement for judgment affirmed.
By the Court (Kafker, Green & Grainger, JJ.),