TOWN OF FRAMINGHAM v. CHRYSLER APARTMENTS, LLC, and ROBERT HAVENER, PAUL MULKERRON, LAURA GODIN, SCOTT LANDGREN, and MICHAEL HICKEY, as members of the TOWN OF NATICK ZONING BOARD OF APPEALS

Introduction

This action was filed by the Town of Framingham ("Plaintiff" or "Town") in the Middlesex Superior Court Department of the Trial Court on October 7, 2008, appealing a decision of the Town of Natick Zoning Board of Appeals ("Defendant" or "ZBA") granting with conditions the application of Chrysler Apartments, LLC ("Chrysler") for a comprehensive permit which would permit it to construct four hundred seven (407) units of housing on a parcel of land in that town. The case was transferred to the Permit Session of the Land Court pursuant to an Order entered by the Chief Justice for Administration and Management on January 26, 2009, and was entered in the Permit Session of the Land Court on January 27, 2009.

On February 3, 2009, this Court (Trombly, J.) issued an order of notice and scheduled a case management conference for March 11, 2009. Prior to the conference, on February 9, 2009, Defendants Board of Appeals and Chrysler filed a Joint Motion to Dismiss and accompanying documents and affidavits, contending that the Town of Framingham does not have standing to bring and prosecute this action. By agreement of the parties, the case management conference scheduled for March 11, 2009, was not held, and the joint motion was set down for hearing on April 7, 2009. Plaintiff filed its opposition to the joint motion on March 27, 2009, along with various affidavits and other documents. Defendants replied thereto, and the joint motion was argued and taken under advisement on April 7, 2009.

The joint motion to dismiss is based on defendants' claim that the Town of Framingham does not have standing to appeal the Natick Board of Appeals decision granting the comprehensive permit to Chrysler. The issue of standing is a jurisdictional matter. The law is well-settled that "[t]he requirement that the challenger must be a "person aggrieved" is jurisdictional...." Dennehy v. Zoning Bd of Appeals of Seekonk, 59 Mass. App. Ct. 208 , 211 (2003). If a defendant moves to dismiss a complaint for lack of subject matter jurisdiction under Mass. R. Civ. P. 12(b)(1), unsupported by affidavits, it is a "facial attack" and the allegations of the complaint are taken as true for the purpose of resolving the complaint. Hiles v. Episcopal Diocese of Mass., 437 Mass. 505 , 515-16 (2002) (citing Holt v. United States, 46 F. 3rd 1000, 1002 (10th Cir. 1995)); see Callahan v. First Congregational Church of Haverhill, 441 Mass. 699 , 709-10 (2004). However, when a defendant provides exhibits and affidavits relative to the claim, as is the case here, the plaintiff bears the burden of proving jurisdictional facts. Hiles, 437 Mass. at 516. Further, when there is a factual challenge to jurisdiction, there is no presumptive weight given to the plaintiff's allegations in the claim, and the court must "address the merits of the jurisdictional claim by resolving the factual disputes between the plaintiff and the defendant." Callahan, 441 Mass. at 711; see Hiles, 437 Mass. at 516. The judge may "consider documents and other materials outside the pleadings that are not affidavits when ruling on a rule 12(b)(1) motion." Callahan, 441 Mass. at 710. In the present case, "other materials" have been filed by all parties. In defending against a Rule 12 (b)(1) motion, "the plaintiff bears the burden of proving jurisdictional facts...." Wooten v. Crayton, 66 Mass. App. Ct. 187 , 190 n. 6 (2006).

Factual Background

The facts in this case are substantially undisputed. I find the following facts based on the submissions of the parties.

1. Plaintiff Town of Framingham is a municipal corporation in Middlesex County. It is situated adjacent to the Town of Natick, also a municipality in Middlesex County.

2. On June 12, 2007, Chrysler filed with the Natick Zoning Board of Appeals an application for a comprehensive permit pursuant to G. L. c. 40B, to build a subsidized housing development on a 6.5 acre site located at 5 Chrysler Road in Natick ("the Property").

3. The Property, entirely in Natick, is approximately nine hundred fifty (950) feet from the boundary line separating Natick and Framingham. The Town of Framingham does not own any land which abuts the Property, does not own any land directly opposite the Property on any public or private street or way, and is not an "abutter to an abutter" as that phrase is used in G.L. c. 40A, § 11. Accordingly, it does not benefit from any "presumption of standing."

4. The Natick ZBA held a public hearing over a thirteen month period. The hearing opened on July 9, 2007 and concluded on July 9, 2008. There were ten public hearing sessions. In addition, a site visit was made to the Property.

5. Framingham received notice of the public hearing and participated in the hearing process, submitting written testimony and letters. In addition, officials of Framingham attended several of the public hearing sessions.

6. On September 17, 2008, the Natick ZBA voted five in favor and zero opposed (5-0) to issue a comprehensive permit to Chrysler. The subsequent ZBA Decision, twenty-six pages in length, granted the comprehensive permit with forty-nine conditions. It permitted Chrysler to construct four hundred seven (407) rental apartments in two buildings on the Property. One hundred and two (102) of the units will be "affordable".

7. The forty-nine Conditions spelled out in the Decision imposed several mitigation measures and other project limitations in a number of areas, including building design, density, off-site traffic improvements, pedestrian safety, sewer, water, storm water, environmental protection, fire safety, construction practices, unit affordability restrictions, and developer profit limitations. The conditions were a result of recommendation and review by professional consultants hired by the ZBA and input and evidence from citizens and officials of both Natick and Framingham, as well as the neighboring Town of Wayland.

8. The Town of Framingham filed the present action in Middlesex Superior Court on October 7, 2008 appealing the ZBA Decision. No other parties have filed appeals. The action was subsequently transferred, at the request of Chrysler and the ZBA, to the Permit Session of the Land Court. Defendants now seek dismissal of the appeal.

Discussion

The sole issue presented in defendants' motion to dismiss is whether the Town of Framingham, a municipality, which is neither an abutter nor an abutter to an abutter of the subject property, has standing to appeal the decision of the ZBA granting the comprehensive permit.

Proof of standing is an integral component of the statutory scheme for judicial oversight of local zoning administration in Massachusetts. G.L. c. 40A, § 17 authorizes judicial review of local zoning decisions. Under that section and the many cases interpreting it which have been decided by the appellate courts of Massachusetts, it has been held that a plaintiff seeking to appeal a decision of a local zoning board must qualify as a "person aggrieved" if he or she is to establish standing to maintain such an appeal. Section 11 of Chapter 40A defines a class of "parties in interest" who are entitled to notice of proceedings before a Board of Appeals. [Note 1] Once a party is determined to be a "party in interest", a rebuttable presumption arises that he or she has standing to challenge the ZBA decision. See Marashlian v. Zoning Bd. Of Newburyport, 421 Mass. 719 (1996). In order to rebut this presumption, a defendant must challenge the plaintiff's standing and offer evidence to support the challenge. Standerwick v. Zoning Bd. Of Appeals of Andover, 447 Mass. 20 (2006). "Standing is the gateway through which one must pass en route to an inquiry on the merits." Butler v. Waltham, 63 Mass. App. Ct. 435 , 440-41 (2005). A crucial issue in the present case is that the Town of Framingham is attempting to appeal a decision made by the ZBA under the provisions of G.L. c. 40B, not G.L. c. 40A.

In Bell v. Zoning Bd. of Appeals of Gloucester, 429 Mass. 551 , 553 (1999), the Supreme Judicial Court stated that the "same standing requirements apply to appeals under G. L. c 40A and 40B appeals." Later, in Standerwick v. Zoning Bd. Of Appeals of Andover, the Court clarified that in Bell it was "not required to and did not examine the potential differences between legally cognizable injuries under the two statutes as a consequence of the differing interests the two land use schemes were intended to protect." 447 Mass. at 27. The Standerwick Court went on to point out that while the term "person aggrieved" appears in both statutes, "the right or interest asserted must be one that the statute under which a plaintiff claims aggrievement intends to protect." Id. at 27-28 (emphasis added). The Court further recognized that "[t]he interests protected by G.L. c. 40B differ from, and in some respects are inconsistent with, those protected by G.L. c. 40A" and that "the substantive standing requirements of G.L. c. 40A are neither the same as nor incorporated into G.L. c. 40B." Id. The distinction is pivotal.

To reiterate, the Town of Framingham is challenging in the present case the decision of the Zoning Board of Appeals of the neighboring Town of Natick issuing a comprehensive permit under G.L. c. 40B, allowing construction by Chrysler of four hundred seven units of housing on property in Natick approximately one thousand (1,000) feet from the boundary line separating the two towns. Framingham is not an abutter to the land at issue; nor is it even an "abutter to an abutter" as that term is used in the statutes. Chrysler and the ZBA contend that neither the Town of Framingham nor any of its municipal boards has standing to challenge the granting of the permit. In support of this argument, Defendants cite two cases involving the Town of Hingham and its Planning Board challenging a comprehensive permit granted by that town's ZBA. See Planning Bd. of Hingham v. Hingham Campus, LLC, 438 Mass. 364 (2003) ("Hingham I") and Town of Hingham v. Dept't of Housing and Cmty. Dev., 451 Mass. 501 (2008) ("Hingham II"). Ironically, Framingham cites the same cases for its claim of standing. Framingham, while it does not benefit from a presumption of standing in this case, nevertheless asserts that it has standing because it claims to have been "aggrieved" and will suffer injury as a result of the construction of this project. Specifically, it contends that the increased traffic which will result from the more than four hundred new dwelling units will cause congestion on the roads leading from Natick into Framingham in an area which is already congested. [Note 2] However, unless Framingham can establish that it has standing to bring and prosecute this appeal, the Court need not evaluate and rule on the merits of the issues plaintiff seeks to raise.

Municipalities Lack Standing

The Supreme Judicial Court has twice ruled that towns lack standing to appeal a comprehensive permit. In Hingham I, the Supreme Judicial Court, upholding a decision by former Chief Justice Peter W. Kilborn of this Court, held that "the Legislature did not intend to give municipal boards and officers standing to appeal from the grant of comprehensive permits." 438 Mass. at 367. Municipal boards do not qualify as "person[s] aggrieved" with standing to bring an action under G.L. c. 40B, § 21, because municipal boards and officers are not "persons" for the purpose of standing. The Court continued that "the word 'person' ordinarily does not describe the State or its subdivisions." Id. at 368. In sum, the Court ruled that a town is not a person and therefore cannot be a "person aggrieved".

The second Hingham case came about when the Town of Hingham itself, as opposed to one of its boards or officials, commenced an action challenging the manner in which the Department of Housing and Community Development ("DHCD") had certified subsidized housing units at the same 40B project. Once again, the Supreme Judicial Court stated that "the town is not a 'person aggrieved' within the meaning of this statutory provisions [G.L. c. 40B, § 21]," Town of Hingham v. DHCD, 451 Mass. at 506 n. 9 (citing Hingham Campus, 438 Mass. at 368), thereby establishing that a town cannot get around Chapter 40B's express limitations on standing by appealing in its own name when a municipal board or official is precluded from doing so.

Since the two Hingham cases were decided, numerous trial and appellate courts have reached the same conclusion. In a recent case decided by the Appeals Court in a Rule 1:28 decision, the Court went so far as to rule that the municipality was "beating a dead horse" in claiming the right to appeal a chapter 40B decision when the issue of standing had already been decided in the Hingham Campus case (see Bd. of Water Comm'rs of Hanson v. Zoning Bd. of Appeals of Hanson, 62 Mass. App. Ct. 1109 (2004). In still another case, this Court (Sands, J.) concluded that the Water Commission of the Town of Cohasset lacked standing to appeal a decision of that town's ZBA granting a comprehensive permit, ruling that the commission and other boards and officers were the types of entities "that [chapter 40B] sought to exclude" from standing. Town of Cohasset Water Comm'n v. Avalon Cohasset, Inc., 13 LCR 130 (2005) (Misc. Case No. 294252) (Sands, J.).

Framingham does not agree with this interpretation of the Hingham cases, contending that it is aggrieved in three respects and that the injury it claims will result from this project is a private injury, as opposed to a general, public injury. The three major issues sought to be raised by plaintiff are an increase in traffic on Framingham streets, the allegation that Framingham had a right to weigh in and have its arguments considered by the Natick ZBA before issuance of the permit, and plaintiff's contention that the development would have an impact on Framingham's municipal emergency services. Plaintiff further argues that the issue of its claimed injury must be considered before the Court considers the matter of standing. This Court disagrees. As stated in Butler, "standing is the gateway through which one must pass" before even getting to the issue of injury and aggrievement. Butler, 63 Mass. App. Ct. at 441; id.

Framingham cites Jepson v. Zoning Board of Appeals of Ipswich, 450 Mass. 81 (2007) for the proposition that the Hingham cases notwithstanding, a municipality, if it met certain prerequisites, could qualify as a party with standing to challenge a comprehensive permit granted pursuant to G.L. c. 40 B. I disagree with this interpretation. In Jepson, the Supreme Judicial Court stated that the Ipswich Housing Authority, since it actually owned land abutting the proposed project, could qualify as a "person aggrieved" if it met certain prerequisites. However, the Court did not have to take up the issue because, as it turned out, another plaintiff, Mr. Jepson, also owned abutting property and therefore had the requisite standing to appeal the ZBA action. The Court noted that since only one plaintiff with standing was required in order for the case to proceed, it declined to rule on the Town's claim of standing.

In summary, this Court finds and rules, for reasons stated above, that neither the Town of Framingham nor any of its boards or officials has standing to appeal the comprehensive permit granted by the Natick ZBA to Chrysler which is the subject of this action. The appeal must be dismissed.

Having concluded that this action must be dismissed due to Framingham's lack of standing, the Court nevertheless deems it wise to briefly touch on the reasons set forth by the plaintiff in support of its challenge to the comprehensive permit.

Framingham contends that harm will accrue through increased traffic generated by the development. However, the Supreme Judicial Court stated in Standerwick that "standing to challenge a zoning decision is conferred only on those who can plausibly demonstrate that a proposed project will injure their own personal legal interests and that the injury is to a specific interest that the applicable zoning statute, ordinance, or bylaw at issue is intended to protect." Standerwick, 447 Mass. at 30 (emphasis added). In the case at bar, traffic going to and from the proposed development will travel over public streets and ways in the towns of Framingham and Natick, and most likely also on roads and highways controlled by the Commonwealth. While traffic may arguably be grounds for "aggrievement" in certain instances, this is not one of them because the harm alleged by the plaintiff is not one that is "special and different from the concerns of the rest of the community." Barvenik v. Bd. of Aldermen of Newton, 33 Mass. App. Ct. 129 , 134-39 (1992). When weighed against the possibility of injury to private rights, the legislature's intent in enacting G.L. c. 40B, to encourage the construction of affordable housing, trumps any harm or injury caused to Framingham by increased traffic. A review of the expert affidavits and other evidence submitted by the Town of Framingham does not demonstrate any particularized injury that will be caused to the town due to increased traffic. In addition, even if it did, any harm claimed by the plaintiff must be of a type which chapter 40B is intended to protect. Traffic is not within that category. See Bedford v. Trustees of Boston Univ., 25 Mass. App. Ct. 373 , 378 (1988). In fact, traffic is one of the issues which had to be, and was, considered by the ZBA.

A second argument raised by plaintiff deserves comment. Framingham complains that Section 329.3 of the Natick Zoning By-law requires that Framingham, and specifically the Framingham Planning Board, be given an opportunity to review proposed developments in the Regional Center District, another name for the area in which the subject Property is located. Plaintiff contends that the ZBA failed to comply with this requirement in granting the comprehensive permit. The by-law on which Framingham relies reads as follows:

Mutual Review: It is the intent of this Section to provide an opportunity for regional review of proposed developments in the Regional Center district. Review and comment by the Planning Board of the Town of Framingham is specifically encouraged. In its review of a site plan, the Natick Planning Board shall consider any comments submitted by the Planning Board of the Town of Framingham.

Defendants contend, and this Court agrees, that this section of the by-law does not apply to applications filed seeking comprehensive permits pursuant to G.L. c. 40B. In fact, it runs counter to the intent of Chapter 40B wherein an applicant need obtain only one comprehensive permit from one board, specifically the local board of appeals. In addition, this application was not one seeking site plan review, and the planning board is not involved in the process in any event. Chapter 40B proceedings concern a comprehensive permit from the board of appeals. It also bears noting that the Town of Framingham submitted testimony at the hearings and that town officials were present at many of them. Clearly the ZBA considered Framingham's opinions, even though it did not accept or agree with all of them.

Framingham's third claim is that the project will have a serious impact of its delivery of emergency services. In particular, plaintiff points out that it already has a "mutual aid" contract with the Town of Natick and that any fire or other emergency in the Chrysler project will necessarily involve the Framingham Fire Department. The evidence in this case clearly demonstrates that the issue of fire protection was considered by the ZBA in its decision granting the comprehensive permit. Chapter 40B regulations and statutes require that the issue be considered by both the ZBA and, in case of an appeal, by the HAC. In fact, sections of the decision and conditions issued by the Natick ZBA in this case require Chrysler to contribute funds to the Town of Natick to be used for land acquisition and construction of a new fire station in West Natick and to take other mitigating actions.

Conclusion

Based on all of the above, this Court concludes that the Town of Framingham does not have standing to appeal the decision of the Natick Zoning Board of Appeals granting the comprehensive permit which is at issue in this case. Defendants' Joint Motion to Dismiss is allowed. The Court further rules that even if Framingham did have standing, the issues it seeks to raise, namely traffic, lack of compliance with by-laws requiring regional planning, and failure to properly take into consideration the issue of emergency services, are not grounds on which the comprehensive permit can or should be annulled or overturned.

Judgment to enter accordingly.

By the Court (Trombly, J.)