JPNC Lawsuit Decision

7/28/2019 JPNC Lawsuit Decision

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COMMONW EALTH OF M ASSACHUSETTSSUFFOLK, SS.UPERIOR COURTCIVIL ACTION N O. 12-4544-B

BENJAMIN DA Y, IN HIS REPRESENTATIVE CAPACITY,AS CHAIRPERSON OF THE JAMAICA PLAIN NEIGHBORHOOD COUNCILVS.

BRG 161 SOUTH HUN TINGTON, LLC, andTHE CITY OF BOSTON BOARD OF APPEALMEMORANDUM OF DECISION AND ORDER ON DEFENDANTS' JOINT

MOTION TO D ISMISS FOR LACK OF SUBJECT MATTER JURISDICTIONINTRODUCTION

Pursuant to Section 11 of the City of Boston Z oning Enabling Act ("Enabling Act"),plaintiff Benjamin Day ("Day" or "plaintiff"), as chairperson of the Jamaica Plain N eighborhoodCCouncil ("JPNC"), filed this action to appeal a zoning decision of defendant City of BostonBoard of A ppeal ("Board"), granting the request of defendant BRG 161 South H untington, LLC

"hree variances and a conditional use ermit. The("BRG") (collectively, "defendants"), for pmatter is before the court on the defendants' joint motion to dismiss for lack of subject matterjurisdiction pursuant to Mass. R . Civ. P. 12(b)(1) and 12(b)(6) based on the JPN C's alleged lackof standing. After hearing, and for the reasons set forth below, the d efendants' motion to dismissis ALLOWED .The record before the court provides the following factual background. BR G is a party to

a purchase and sale agreement for certain real property located at 161 Sou th Huntington Avenue,Boston, M assachusetts, in the Jamaica Plain section of the city. On or abo ut April 6, 2012, BRGapplied to the City of Boston Inspectional Services Department ("ISD") for a permit to construct


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a 196-rental-unit apartment project at the Huntington Avenue address. On June 27, 2012, theISD denied the application for construction. On or about August 9, 2012, BR G appealed theISD's decision to the Board, seeking variances from the Zoning Code and a conditional usepermit. Before the Board addressed the request, the JPNC's Zoning C omm ittee voted 13-0-0 torecommend denial of the BRG appeal for variances; and, on October 30, 2012, the JPNC as awhole affirmed the decision of its Zoning Com mittee.

On N ovember 13, 2012, the Board held a hearing on the BRG appeal and voted toapprove the petition for the requested variances and the conditional use permit. Subsequently,the Board signed a formal w ritten decision, dated Novem ber 27, 2012. The B oard's decision wasthen filed with the ISD on No vember 29, 2012. Thereafter, on December 19, 2012, Day, asJPNC 's chairperson, filed this action with the JPNC 's approval in order to challenge the Board'sdecision granting BR G the v ariances and use permit as exceeding the Board's authority.

DISCUSSIONI. Motion to Dismiss StandardThe plaintiff claims that the court can exercise subject matter jurisdiction over this action

because the JPNC is classified as a m unicipal board with standing to challenge decisions by theBoard. The d efendants counter that, because the JPN C do es not possess any duties related tozoning, the JPNC cannot be classified as a m unicipal board and, accordingly, does not possessstanding, making dismissal under M ass. R. C iv. P. 12(b)(1) appropriate. After consideration, thiscourt concludes that the defendants are correct.'

'The defendants also point to M ass. R. C iv. P. 12(b)(6) as an alternative basis for dismissal; however, thecourt need not address the sufficiency of the pleadings inasmuch as the requirements for dismissal on the basis of12(b)(1) are met.

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Standing is an issue of subject m atter jurisdiction under M ass. R. C iv. P. 12(b)(1). SeeGinther v. Comm issioner of Insurance, 427 Ma ss. 319, 322 (1998); Doe v. The Governor, 381Mass. 702, 705 (1980). Because subject matter jurisdiction goes to the pow er of the court to hearand decide the matter, establishing standing is a jurisdictional prerequisite to judicial review.Ginther , 427 Mass. at 322, n.6; Planning Bd. of Ma rshjIeld v. Zoning Bd. ofAppeals ofPembroke, 427 Mass. 699 (1998); Hanna v. Town of Framingham, 60 Mass. App. Ct. 420, 422(2004); Riley v. Janco C entral, Inc., 38 Mass. App . Ct. 984, 985 (1995).

In reviewing a motion to dismiss for lack of subject matter jurisdiction, the courtconsiders the factual allegations of the plaintiff's complaint, along with any favorable inferencesreasonably drawn therefrom, Ginther, 427 M ass. at 322. However, the court also may consider"documents and other materials outside of the pleadings" subm itted by the parties in addressingthe merits of the jurisdictional claim. Callahan v. First Congregational Church of Haverhill,441 Mass. 699, 710 (2004); see also Ginther, 427 M ass. at 322, n. 6 ("Under rule 12(b)(1), thejudge may consider affidavits and other matters outside ofthe face of the complaint that are usedto support the movant's claim that the court lacks subject matter jurisdiction. ")As the plaintiffin a zoning appeal, the JPNC bears the burden of proof on this issue. Standerwick v. Zoning Bd.ofAppeals ofAndover, 447 M ass. 20, 34, n. 20 (2006).

II. Standing Under the City of Boston Zon ing Enabling ActSection 11 of the E nabling Act governs the requirements for standing in this instance. In

pertinent part, Section 11 provides that "[a]ny person aggrieved by a decision of [the] board ofappeal, whether or no t previously a party to the proceeding; or any m unicipal board or officer,


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may appeal to the superior court." Boston Zoning Enabling Act, St. 1956, c. 665 11. 2 Theplaintiff does not contend that either the JPNC or he is a "person aggrieved" by the B oard'sdecision; therefore, the court will address only whether the JPNC is classified as a municipalitywithin the meaning of the Enabling A ct.

Where the Enabling Act's grant of standing to mun icipal officers and boards is anexception insofar as it does n ot require any sho wing of injury to a legally protected interest, theterms "mu nicipal board" or "officer" must be construed narrowly in order to "m inimize the classof parties who have suffered no legal harm, yet `can com pel the courts to assume the difficult anddelicate duty of passing upon the validity of acts of a coordinate branch of go vernment."Planning Bd of Marshfield, 427 Mass. at 702-703, quoting Ginther, 427 Mass. at 322. As such,the right of appeal is strictly limited to municipal boards or officers that have duties to perform inrelation to the building code or zoning. Planning Bd. of M arshjIeld, 427 Mass. at 701; Carr v.Bd. ofAppeals of Medford, 334 Mass. 77, 79 (1956); Planning Bd. of Reading v. Bd. ofAppealsof Reading, 333 Mass. 657, 662 (1.956);. Harvard S quare Def Fund, Inc. v. Planning Bd. ofCambridge, 27 M ass. App. Ct. 491, 496 (1989). This court concludes that the JPNC do es notpossess duties related to the building code or zoning and only possesses certain discretionary,advisory rights. 3 In mak ing this determination, the court considers: (A) the intended role of the

2 In construing the Enabling Act, it is the court's practice-to look to interpretations of the Cornmonwealth'sZoning Act, G. L. c. 40A 17, which contains identical language to the statute at issue. Circle Lounge & Grille, Inc.v. Bd. ofAppeal ofBoston, 324 Mass. 427, 432-33 (1949); Epstein v. Bd. ofAppeal ofBoston, 77 Mass. App. Ct.752, 756 (2010); McGee v. Bd. ofAppeal ofBoston, 62 Mass, App. C t. 930, 930 (2004); Sherrill House, Inc. v. Bd.ofAppeal ofBoston, 19 Mass. App. Ct, 274, 275 (1985); MBTA E mployees Credit Union v. Araujo, 18 Mass. L.Rep. 210, *9-10 (Mass. Super. Ct. 2004).

3 The defendants argue that, to constitute a m unicipal board, a party must possess both powers and dutiesrelated to zoning, while the plaintiff contends that classification as a municipal board only requires duties. Becausethe court determines that the JPNC lacks duties, the court need not address whether our case law also requires theJPNC to possess powers related to zoning.

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JPNC when form ed; (B) the plain meaning of Article 55 of the Zoning C ode as it pertains toJamaica Plain; and (C) the City of Boston's official recognition of the JPN C and its m embers.

A. The Neighborhood Initiative PlanIn order to evaluate the intended role of the JPNC when form ed, the court looks to the

Neighborh ood Initiative Plan ("Plan"), written in June 1985 by Thom as A. B ledsoe, Director ofthen Mayor R aymond F lynn's ("Mayor Flynn's") Office of Neighborhood Services, for guidance.See JPNC 's Emergency M otion for Leave to Supp., Ex. 1. The Plan mem orialized the creationof the Neighborhood Council system, w hich included five neighborhood councils, including theJPNC. Id., pp. 4, 15. The Co uncils were created in order to encourage the involvemen t of thecitizens of Boston's neighborhoods, including residents and local business ow ners, in decisionsof importance in their commun ity. Id., p. 15.

Mem bers of the Neighborhood C ouncils initially were appointed by M ayor Flynn onrecommendations from the community. Id., p. 16. 4 After making the initial appointments,

Mayor Flynn intended for the Councils to engage the com munity in an effort to influencedevelopment in their neighborhoods. Id., pp. 18-19. In o rder to achieve that goal, theNeighborhood Cou ncils were to collaborate with a Neighborhood Planning Team in preparing aNeighborhood D evelopment Plan to help identify neighborhood developm ent objectives. Id.,p.18. The Neighborhood Co uncils also could "work with the BRA and the. Zoning., Com missionto help develop a new m aster zoning ordinance for their communities." Id., p. 19.

4The JPNC ha s since changed membership in the JPNC from a mayoral appointment process to aneighborhood election to be conducted every two y ears. See JPNC 's Opp. to Defs' Motion to Dismiss, p. 4.


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Most notably, the Plan encouraged Neighborhood C ouncils and residents to interact withthe Board regarding certain requests for variances. Id. The pertinent language regarding theNeighborhood Council's role regarding requests for variances states that:

Whenever a party seeks a zoning variance which shall have asubstantial impact on the neighborhood, the Board of Appealswill notify the Council serving the area affected by the variancein writing. If the Coun cil desires, they can study the proposaland make a written response to the Board of Appeals and to thepetitioner.. .If the Council requests an explanation, the petitioneris expected to cooperate in arranging a meeting and supplyinginformation to the Council. The B oard of A ppeal will require thatthe petitioner meets w ith any Neighborhood Council that hasrequested a meeting or any other interested neighborhood groupbefore it considers the petition... The N eighborhood Cou ncil willconvene a public meeting regarding the petition if they determinethere is sufficient concern regarding its impact on theneighborhood. Th e Board w ill give great weight to the Council'sposition... in making its decision relative to the zoning issues

involved.Id., p. 20 (emphasis added).

From this language, it is apparent that Mayor Flynn did not confer any affirmative dutieson the N eighborhood Councils and on ly delineated a right to review requests for variances, at theNeighborhoo d Cou ncil's discretion. Nevertheless, the JPNC asserts that it possesses dutiesrelated to zoning because its Zoning Com mittee has reviewed applications for variances from theZoning Code and made recomm endations on those applications since the JPNC w as establishedin 1985 and that "it is, and has been, the practice of the Board of Appeal not to consider themerits of zoning relief for a Jamaica Plain project without the appellant and the JPNC firsthaving participated" in the review process. JPNC 's Opp. to Defs' Motion to Dism iss, p. 5, n.3.Wh ile it is well within JPNC's purview to appraise every application for a variance before the

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Board co nsiders its merits, the fact that this has been an acce pted practice recognized by theBoard does not convert the JPNC's right to review into a duty to review. In the absence of such aduty, the JPNC cannot be considered a m unicipal board with standing to challenge the Board'sdecision. See Planning Bd. of Marsh jield, 427 Mass. at 701.

Furthermore, former M ayor Flynn recently clarified his intent in creating theNeighborho od Coun cils by stating that "I didn't look at them as a branch of City governm ent. Ilooked at them as strong representatives of the diversity of city neighborhoods," and that "Ididn't see it as another government boardof bureaucrats or people being co ntrolled or havingpolitical ties to City Hall." See Plaintiffs Opp. to Defs' Motion Req. Order for Bond, Exhibit C-1, p. 2 (emphasis added). The view of the Neighborhood Co uncils' own creator, Mayor Flynn,lends further support to the court's determination that the JPNC is not a m unicipal board. 5

B. Article 55 of the Boston Zoning CodeThe plaintiff further contends that its zoning-related duties are codified in Article 55 of

the Boston Zoning Code. JPNC's Opp. to Defs' Motion to Dismiss, p. 12. Article 55 of theZoning Code is the article governing zoning matters in Jamaica Plain. See Boston Zoning Code,Article 55. The p laintiff alleges that the JPNC 's duties specifically are derived from Section 55-6, which states that:

Participation. This article has been developed w ith extensiveparticipation of the Jamaica Plain Neighborhood Council and itsZoning Com mittee, together with civic and neighborhoodassociations, business and trade groups and residents. The role ofcomm unity participation in determining appropriate land useregulations and zoning is critical to the success of any zoningarticle or development plan. To continue that role, the JamaicaPlain Neighborhood Council and its Zoning C omm ittee, and theJamaica Plain Civic and neighborhood association, business and

5It is also moteworthy that, in their twenty-eight-year existence, not one of the N eighborhood Councils hasever attempted to appeal a Zoning Board's decision before the instant action.7


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trade groups, and residents, shall continue to play an ongoing rolein advising the City on land use planning for Jamaica P lain.Id.

As a m atter of law, a properly promulgated regulation is to be construed in the samemanner as a statute. Purity Supreme, Inc. v. Attorney Gen., 380 Mass. 762, 769 (1980).Accordingly, the court has the authority to review the p rovisions of Article 55 and determine itsmeaning consistent with its plain words. Sullivan v. Tow n of B rookline, 435 Mass. 353, 360(200 1); Miles v. Planning Bd. of Millbury, 404 Mass. 489, 492 (1989).

The JPN C subm its that, through the express and mandatory language of A rticle 55, "i twas the clear intent of the City, the BRA , the JPNC (as the prime author of Article 55), theZoning Com mission, and the mayor in enacting Article 55 to codify in Section 55 -6 their long-standing practice of having the JP NC conduct, on their behalf, local public hearings to review allzoning appeals in Jamaica Plain prior to the consideration of the Board." See JPNC 's Opp. toDefs' Motion to Dismiss, p. 5, 11. It is unclear to this court how the JPNC arrives at this

conclusion, as nothing in the express language of the section or elsewhere in.the Zon ing Codemandates that the JPNC review requests for variances before the Board.

To support its proposition, JPNC erroneously relies on Planning Bd. of Reading v. Bd ofAppeals of Reading, 333 Mass. 657 (1956), in which the court ruled that the planning board m etthe requirements for standing under w hat the JPNC contends was an analogous state zoningstatute. However, in Planning Bd. of Reading, the statute specifically mandated that "no zoningdistricts or restrictions therein shall be changed `until after the planning board... has held a publichearing thereon... and has submitted a final report with recomm endations to the city council ortown m eeting, or until twenty days shall have elapsed after such a hearing without subm ission ofa final report." Id. at 662. The statute in question in that case clearly defined the planning

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board's duties related to zoning; and, therefore, classification as a municipal board wasappropriate. By contrast, Section 55-6 only states that the JPNC "shall continue to play anongoing role in advising the City...." This is a general statement concerning the JPN C's ongoingrole as advisor and does not suggest that the JPNC is required to conduct hearings to review allzoning appeals. In the absence of langu age to support the JPN C's proposition, this court cannotread words into this enactment that do not appear on the face of the code. Anderson S t. Assoc. v.City of Boston, 442 Mass. 812, 817 (2004).

Moreover, if this court were to accept the JPNC's interpretation of Section 55-6, thelogical extension of that argument w ould be that "the Jam aica Plain civic and neighborhoodassociation, business and trade groups, and residents," having sim ilar duties, also w ould beclassified as m unicipal boards or officers with powers to challenge B oard decisions. Such anreading would lead to absurd results and likely was not intended by the C ity, the ZoningCom mission, or the Mayor when enacting this Article. See Carr, 334 Mass. at 80 (even giving

mem bers of the City Council a right of appeal greatly would, impair the., effective,, operation of thestatute, and it is inconceivable that the L egislature could have intended to give them this right).As such, Section 55-6 cannot be construed to empow er the JPNC with duties sufficient to renderit a municipal board.

Even assuming, arguendo, that Section 55-6 exclusively conferred the JPN C w ith..this"ongoing role in advising the City," a purely advisory role is not enough to grant standing as amun icipal board. In analyzing a nearly identical situation in Harvard S quare Def. Fund, Inc. v.Planning Bd. of Camb ridge, the Appeals Court ruled that , an unincorporated citizens advisorygroup without traditional government powers w as not a m unicipal board. Harvard Square Def.Fund, Inc. v. Planning Bd. of Camb ridge, 27 Mass. App. Ct. 491, 497 (1989). In that case, the

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mem bers of the comm ittee had the capacity solely to "review, advise, guide and otherwisecomm ent upon development proposals within the Harvard Square overlay district in a reportsubmitted to the planning board." Id. at 496-97. "The planning board then gives the report `dueconsideration' in the formulation of its decision." Id. at 497. The Appeals Court ruled that apurely advisory comm ittee did not qualify for standing independent of the planning board. Id.

Similar to the comm ittee in Harvard Square, the JPNC only has the right to reviewrequests for variances and to make recomm endations to the Board. The JPNC acknowledges thatthese recommendations are not binding on the Board in any way, leaving the JPNC with a purelyadvisory function. See JPNC's Opp. to Defs' Motion to Dismiss, p. 5, n. 3. Based on theholding in Harvard Square, the court concludes that the JPNC 's role in the community does notrise to the level of a municipal board and, therefore, that the JPNC lacks standing to challengethe Board's decision. 6

Finally, the court rejects the JPNC's contention that it should be classified as a municipal

board because Section 55-6 recognizes that Article 55 was drafted, with. the "extensive.participation" of the JPNC and its Zoning Committee. See JPNC's Opp. to Defs' Motion toDismiss, p. 5, 11 , The JPN C's contributions to drafting the Article, including its "revisions,alterations, additions and edits to the then existing zoning code," do not amount to affirmativeduties rendering the JPNC a municipal board, as discussed, supra.. Furthermore, according to.Section 55-6, Jamaica Plain's "civic and neighborhood associations, business and trade groupsand residents" all extensively participated in the development of Article 55. It is reasonable to

6 The court takes no issue w ith the JPNC's assertion that it "has performed and con tinues to perform anintegral role in Board of App eal decisions for the Jamaica P lain Neighborhood District." See JPNC's Opp. to D efs'Motion to Dismiss, p. 10. In d etermining that the JPNC is not a m unicipal board, the court does not intend toderogate the significance of the JPNC 's role in the comm unity and recognizes the value of Neighborhood Councils inserving as the voice of the community and bridging the gap between residents and the Board.

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infer that the Legislature did not intend to confer municipal board status on all those groups andindividuals that contributed to A rticle 55's drafting. See Carr, 334 Mass. at 80.

Moreover, the Neighbo rhood Initiative Plan stated, in reference to the JPNC's eventualassistance with revising the zoning ordinance, that "this strong advisory ability in settingguidelines and limits for future developmen t... will allow C ouncils considerable long-terminfluence over development in their comm unity." JPNC's Emergency M otion for Leave toSupp., Ex. 1, p. 1 9. Thus, the JPN C's participation in drafting the new provision, w hile likelyvaluable to the Jamaica Plain community as a w hole, was solely in an advisory capacity and, assuch, cannot result in the JPNC be accorded m unicipal board status. See Harvard Square, 27Mass. App. Ct. at 496-97. In sum, the JPN C does no t possess duties related to zoning, merelydiscretionary rights to review and advise; given that this advisory role is not sufficient to rise tothe level of a municipal board, the JPN C lacks standing to challenge the Bo ard's decision.'

C. Recog nition by the City of Boston

Notwithstanding the court's determination that the JPNC is not a muni.cipal. board, Thecourt will address the defend ants' additional argum ents. The defendan ts direct the court'sattention to the following evidence: (1) the JPN C is not nam ed on the official list of municipal"Boards and Com missions" maintained by the City of Boston; (2) the JPNC 's officers ormemb ers are not included on the register of m unicipal, officers m aintained, by the City of Bo ston;an d (3) all meetings of mu nicipal boards, commissions, and agencies are posted w ith the Officeof the City Clerk, pursuant to the Open Meeting Law ("OM L") under G. L. c. 30A, but the

' The court limits its analysis as to whether the JPNC is a municipal board; however, an analysis of whetherDay, in his capacity as chairperson of the JPNC , is a m unicipal officer would lead to the sam e result. See Carr, 334Mass. at 80.

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JPNC 's meetings are not posted with the Office of the City Clerk, See Defs' Reply Brief inFurther Support of their Joint Motion to D ismiss, p. 2-4.

Although not dispositive of the issues before the court, the facts that the City of Bostondoes not recognize officially the JPNC in its list of "Boards and C omm issions" and that the City'sRecord of App ointments has no record of acceptance of public office from any m ember of theJPNC are further proof that the JPNC is not considered a municipal board by the City. However,the defendants' third argument, viz., the JPNC 's noncompliance with the O ML, is unpersuasiveinasmuch as the OM L's requirements are considerably different.

The OM L generally requires that all meetings of a public body shall be open to the publicand that the public body shall post notice of every meeting at least forty-eight hours prior to suchmeeting. See G. L. c. 30A 20. Pursuant to G. L. c. 30A 18, the word "pu blic body" is broadlydefined as "a multiple-mem ber board, comm ission, committee or subcomm ittee... within anycounty, district, city, region or town... established to serve a public purpose." The purpo se of such

an all-encompassing definition of public body is clear-- to prom ote transparency in conductingmatters that concern the public.' A determination of wh ether the JPNC is a public body is a farcry from a determination of whether it is a municipal board. While the JPNC m ay be considereda public body subject to the mandates of the OM L, and while noncompliance with the OML maytend to show that the JPN C does not ho ld itself out as a m unicipal board, a resolution of thisquestion is not necessary for the court's analysis here. 9

B in the words of the great Justice Louis D. Brandeis, "sunlight is said to be the best of disinfectants."9The court acknowledges that the issue of whether a Neighborhood Council must comply with the OM L isthe subject of ongoing litigation between the Charlestown Neighborhood Counc il and its residents in Suffolk CountySuperior Court Civil Actions No. 13-0461H and No. 13-00538. H owever, this court need not address this issue in

order to arrive at its conclusion regarding JPNC's status as a municipal board.12


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III. Standing Under Rule 23.2The plaintiff attempts to circumvent the requirements for standing under Section 11 of the

Enabling Act by reliance on M ass. R. Civ. P. 23.2 as an alternative basis to assert the JPNC 'srights. Rule 23.2 states that "an action brought by or against the m embers of an unincorporatedassociation as a class by naming certain m embers as representative parties may be m aintainedonly if it appears that the representative parties will fairly and adequately protect the interests ofthe association and its mem bers." Mass. R. C iv. P. 23.2.

The plaintiff summarily argues that, because the JPNC voted to authorize Day to representthe JPN C in this action, the "representative party [is] fairly and adequately protecting] theinterests of the association and its members." See JPNC's Opp. to Defs' Motion to Dismiss, p.15. The plaintiff misapprehends Rule 23.2. In order to avail himself of the rule, Day m ust protectthe valid interests of the JPN C and its memb ers. Application of this standard in the context of azoning challenge requires the plaintiff to allege that the claimed injury or loss is personal to the

plaintiff and cannot sim ply represent general, speculative concerns of the comm unity. Denney v.Zoning Bd. ofAppeals of Seekonk, 59 Mass. A pp. Ct. 208, 211 (2003); see also Cheever v.Graves, 32 Mass A pp. Ct. 601, 604-605 (1992) (standing as representative members of anunincorporated association is appropriate where the plaintiffs were the officers of the associationand claimed a shared prop erty right of access to, and u se of, the property at issue in the litigation).

Day has n ot alleged that he owns any property abutting 161 So uth Huntington Avenue, norhas he alleged that the Board's decision causes him special or personal harm to his ow n privateproperty or legal rights. While it is true that prior to initiating this action, the JPNC voted toauthorize Day to represent the JPNC as a w hole, Day canno t be an adequate representative of the

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potential class because he has no individual standing as a person aggrieved. Therefore, this actioncannot be maintained as a class action; and reliance on Rule 23.2 for standing is misplaced.

For all the foregoing reasons, it is hereby ORDERED AND ADJUDGED that thedefendants' joint motion to dismiss for lack of subject matter jurisdiction be ALLOWED andthat the complaint be DISMISSED.

Linda E. Giles,Justice of the Superior Court

Dated: May 16, 2013

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