PS 09-395342

June 26, 2009


Scheier, C.J.


In this action, brought pursuant to G. L. c. 30A, § 14, Plaintiffs seek to annul a decision of the Boston Landmarks Commission (Commission) regarding a five-story commercial building (Building) located at 330 Boylston Street in Boston (Property). Plaintiffs appeal the Commission’s refusal to designate the Building as a Boston landmark. On December 9, 2008, Plaintiffs filed their complaint in Suffolk Superior Court against the Commission only. On January 29, 2009, The Druker Company (Druker) moved to intervene. An affiliate of Druker owns the Property, on which the Building is located. Druker plans to tear down the Building as part of a 221,000 square foot, mixed-used commercial and retail development. The Superior Court (Cratsley, J.) allowed Druker’s motion on February 2, 2009. Subsequently, Druker moved to transfer the case to the permit session of the Land Court. On March 10, 2009, the Chief Justice for Administration and Management granted Druker’s motion and issued an Order of Transfer.

This case is now before this court pursuant to two motions: Druker’s Motion to Dismiss for Lack of Subject Matter Jurisdiction Pursuant to Mass. R. Civ. P. 12(b)(1), filed March 31, 2009, and the Commission’s similar motion filed April 17, 2009. Plaintiffs opposed both motions through written oppositions filed on April 17, 2009, and May 1, 2009, respectively. A hearing on both motions was held on May 6, 2009, at which all parties were heard. The record establishes the following:

The Commission was created pursuant to Chapter 772 of the Acts of 1975 (Enabling Statute) “to protect the beauty of the city of Boston and improve the quality of its environment through identification, recognition, conservation, maintenance and enhancement of areas, sites, structures and fixtures which constitute or reflect distinctive features of the political, economic, social, cultural or architectural history of the city. . . .” To fulfill this purpose, the Commission “may designate any landmark, landmark district, architectural conservation district or protection area, or by such vote, may amend or rescind in whole or part any such designation.”

On September 28, 2006, several Boston residents petitioned the Commission to designate the Building a Boston landmark pursuant to the Enabling Statute (2006 Petition). In response, the Commission investigated the matter, compiled a report, and held a hearing to consider the 2006 Petition. In October of 2006, by written decision, the Commission declined to designate the Building a Boston landmark. At that time, no appeal was filed. [Note 1]

In October of 2008, Plaintiffs requested that the Commission again initiate the process to determine whether it should designate the Building a Boston landmark (2008 Petition). At a hearing on November 10, 2008, the Commission considered Plaintiffs’ request and voted not to initiate a process to reconsider whether the Building should be designated a landmark. This appeal followed and it is the Commission’s refusal that is before the court on two motions to dismiss pursuant to Mass. R. Civ. P. 12(b)(1).

Because Druker and the Commission (Defendants) have challenged the court’s jurisdiction under Mass. R. Civ. P. 12(b)(1), this court must address the factual issues pertaining to jurisdiction. Once jurisdiction has been properly challenged, “a rule 12(b)(1) motion supported by affidavits places the burden on the plaintiff to prove jurisdictional facts.” Callahan v. First Congregational Church of Haverhill, 441 Mass. 699 , 709-10 (2004) (quoting Hiles v. Episcopal Diocese of Massachusetts, 437 Mass. 505 , 516 n.13 (2002)). “Under this factual challenge to the jurisdiction, the plaintiff’s jurisdictional averments in the complaint are entitled to no presumptive weight . . . .” Hiles, 437 Mass. at 516 (quoting Valentin v. Hospital Bella Vista, 254 F.3d 358, 363 (1st Cir. 2001) (internal quotations omitted)).

Defendants’ argument is two-fold: first, they argue that Plaintiffs’ complaint is insufficient under G. L. c. 30A, § 14, because the Commission is not a state agency, but rather a municipal department and second, even if Plaintiffs brought their appeal pursuant to the Enabling Statute, the failure of the Commission to “landmark” a building is not an appealable event under Section 9 of the Enabling Statute. Plaintiffs respond to Defendants’ challenge by contending that the Commission is within the definition of state agency under the language of the Enabling Statute. Alternatively, they assert that, if the court determines that the Commission is not a state agency, Plaintiffs should be allowed to amend their complaint to include a claim under Section 9 of the Enabling Statute. In that context, they argue that Section 9 applies not only when the Commission designates a landmark, as the Section expressly provides, but also when the Commission chooses not to designate a landmark. For the reasons set forth herein, Defendants’ motions to dismiss are ALLOWED.

Pursuant to G. L. c. 30A, § 14, “[a]ny person or appointing authority aggrieved by a final decision of any agency in an adjudicatory proceeding, whether such decision is affirmative or negative in form, shall be entitled to a judicial review thereof.” G. L. c. 30A, § 14 (emphasis added). G. L. c. 30A, § 1(2) defines “agency” as “[a]ny department, board, commission, division or authority of the state government or subdivision of any of the foregoing, or official of the state government, authorized by law to make regulations or to conduct adjudicatory proceedings.” This court finds that the Commission does not qualify as an “agency” under this definition. The Commission’s jurisdiction is limited to the City of Boston and, pursuant to its Enabling Statute, the Commission is deemed to be a department of the Boston Redevelopment Authority in the City of Boston and its employees are deemed to be municipal employees. Accordingly, there is no jurisdiction under G. L. c. 30A, § 14, to review a decision of the Commission. Accord Benevolent & Protective Order of Elks, Lodge No. 65 v. Planning Board of Lawrence, 403 Mass. 531 , 538 (1988) (holding that the local planning board was not an agency); Dixie’s Bar, Inc. v. Boston Licensing Board, 357 Mass. 699 , 701-02 (1970) (holding that the Boston Licensing Board is not an agency); Danusis v. Longo, 48 Mass. App. Ct. 254 , 260 (1999) (holding that the local health board is not an agency); Buteau v. Norfolk County Retirement Board, 8 Mass. App. Ct. 391 , 392 (1979) (holding that the Norfolk county retirement board is not an agency).

The Enabling Statute provides a right of appeal pursuant to Section 9, which reads as follows: Any person aggrieved by a designation of the commission or any applicant for a certificate aggrieved by a determination pertaining to that certificate of the commission may, within thirty days next following date of such designation or determination, appeal the designation or determination to the superior court for Suffolk county.

Thus, a right of appeal from a decision of the Commission exists where the Commission has made either a “designation” or a “determination.” A determination occurs after a building has been designated a landmark and an applicant seeks to alter the designated building. In that situation, the Commission must review the proposed alterations and make a “determination” that the changes are “consistent with the purposes” of the Enabling Statute. Clearly, a determination was not made in the instant case.

Although the Enabling Statute does not define “designation,” a reading of the Enabling Statute as a whole makes clear that a “designation” occurs only when the Commission reviews an application and chooses to identify a building as a landmark. Consequently, there was no designation in the instant case where the Commission refused to even begin the process by which they could consider designating the Building as a landmark. The parties have not produced, nor has this court found, any cases reviewing the refusal of the Commission to designate a Boston landmark. This court determines that there is no right of appeal under Section 9 of the Enabling Statute where, as here, the Commission did not issue either a designation or a determination. [Note 2] Accordingly, while Plaintiffs requested at oral argument that they been allowed to amend their complaint to include a count under Section 9 of the Enabling Statute, such an amendment would be futile.

As this court has no jurisdiction to hear Plaintiffs’ complaint pursuant to G. L. c. 30A, § 14, and additionally, no right of appeal is available pursuant to the Enabling Statute in the instant case, Defendants’ motions to dismiss pursuant to Mass. R. Civ. P. 12 (b) (1) must be allowed.

Judgment to issue accordingly.

Karyn F. Scheier

Chief Justice

Dated: June 26, 2009


[Note 1] Plaintiffs contend that the instant appeal constitutes an appeal of both the denial of the 2006 Petition and the 2008 Petition because, they contend, the latter is in substance a request for reconsideration of the Commission’s denial of the 2006 Petition. This court need not decide whether Plaintiffs’ contention is well founded as, for reasons set forth herein, neither action of the Commission constitutes an appealable event.

[Note 2] Plaintiffs have also argued that a right of appeal for a failure to issue a designation must be implicitly allowed under Section 9 of the Enabling Statute because appeals are specifically recognized when designations are issued. Plaintiffs maintain that if there is an appeal in the affirmative, one must also be permitted in the negative. This court disagrees. The express inclusion of a right of appeal from designations in the Enabling Statute implies that the exclusion of the right of appeal from a failure to designate was intentional. See Iannelle v. Fire Commr. of Boston, 331 Mass. 250 , 252-53 (1954) (“Expressio unius est exclusio alterius. While this maxim is not a rule of law and is to be applied with caution, it is an aid in construction where other clearer indications are lacking.”). It is possible that the remedy available where the Commission fails to issue a designation is an action in the nature of certiorari under G. L. c. 249, § 4. Where there is “a lack of all other reasonably adequate remedies” an action in the nature of certiorari may be available in an appropriate forum. Although the court inquired of Plaintiffs at the hearing about alternate theories of review of the action of the Commission, Plaintiffs did not seek to amend their complaint to include an action in the nature of certiorari.