Richard P. McClure ("Plaintiff') commenced this action on September 15, 2010 with the filing of his complaint, styled as a petition for writ of mandamus and for certiorari, and a request for declaratory judgment. The targets of the writs are the Board of Selectmen for the Town of Chelmsford ("Selectmen"), the Town of Chelmsford Planning Board ("Planning Board"), and Scott Hammond, the Building Inspector ("Building Inspector"); the members of both boards are defendants in this action. An amended complaint, filed November 8, 2010, added an appeal under G.L. c. 40A, § 17 from a decision of the Town of Chelmsford Zoning Board of Appeals ("Zoning Board"), whose members also have become defendants. The challenged Zoning Board decision dismissed, for lack of standing, Plaintiffs appeal from the issuance of a building permit by defendant Building Inspector to defendant Epsilon Group, LLC ("Epsilon Group"or "Epsilon").
The controversy concerns property ("locus") owned in fee by Epsilon Group, located at 9 North Road in Chelmsford, Middlesex County, Massachusetts, described in the deed to Epsilon Group dated June 17, 2009 and recorded in the Middlesex County (North District) Registry of Deeds ("Registry") at Book 23126, Page 281. The locus is burdened by a preservation restriction ("Restriction") recorded at the Registry at Book 2353, Page 683. Plaintiff does not believe that the development that Epsilon Group has undertaken on the locus, and that the various municipal defendants have approved and permitted, is consistent with the Restriction.
The following facts are not in dispute:
1.The Restriction was created in 1978 for the benefit of the "Inhabitants of the Town of Chelmsford," pursuant to the provisions of G.L. c. 184, § 31 through 33, inclusive.
2.The Restriction does not purport to prevent all further development of the locus. It states that "No other buildings shall be erected... except barnlike structures and silo which shall generally present the exterior appearance of farm buildings and barns." The Restriction further states that "No other buildings shall be erected on said premises so as to raise the total area on all floors of buildings, existing and new, to exceed the equivalent of 20% of the land area of the premises. No other buildings or paved area shall be constructed so as to raise the total ground coverage by buildings and paving to exceed 55% of the land area of the premises."
3.According to the Restriction, structures may be used for "residential purposes, and for other purposes permitted by the zoning by-laws of the Town of Chelmsford, except retailing, fast food establishment, or motor vehicle sales, rental, repairs, or service." The locus is in Chelmsford's CD General Commercial District.
4.The Restriction requires an "owner seeking to develop on the premises or obtain building permits relative to the same to apply for approval from both the Planning Board and the Chelmsford Historic District Commission" and provides that "[t]he Board of Selectmen shall have the authority to enforce the provisions of" the Restriction.
5.In October 2009, Epsilon Group requested, and on December 7, 2009, the Historic District Commission granted, a certificate of appropriateness for the development of a 15,494 square-foot two-story business, legal, and medical office building on the locus.
6.At the same time, Epsilon Group sought various approvals from the Planning Board, and by a decision filed with the Town Clerk on March 19, 2010, the Planning Board granted several special permits, and a site plan approval. Additional permits were granted by decision filed May 7, 2010.
7.On April 2, 2010, and again on May 25, 2010, Boars Head, LLC filed complaints in the Land Court challenging, among other things, the grant of the special permits and site plan approval by the Planning Board. The Boars Head cases were dismissed with prejudice on August 16, 2010. See Boars Head, LLC v. Chelmsford Planning Bd., Misc. Case Nos. 426439 & 430534 (Piper, J.). Plaintiff was not a party to either of the Boars Head cases.
8.On July 27, 2010, Epsilon Group obtained a building permit.
9.On August 23, 2010, the Board of Selectmen held a public hearing and voted that Epsilon Group's "proposed project complies with the provisions of the preservation restriction." The Selectmen declined to take any action to enforce the Restriction as to the Epsilon project.
10.On August 25, 2010, Plaintiff appealed the grant of the building permit to the Zoning Board pursuant to G.L. c. 40A, § 8.
11.Plaintiff commenced this action on September 15, 2010. On that day, the court (Piper, J.) denied Plaintiff's request for preliminary injunction, in a ruling made from the bench and reflected on the court's docket for this case. The ruling on the preliminary injunction request is incorporated by reference into today's decision.
12.By decision filed with the Town Clerk on October 19, 2010, the Zoning Board dismissed Plaintiff's administrative appeal for lack of standing. Plaintiff appealed the dismissal to this court on November 8, 2010, pursuant to G.L. c. 40A, § 17, by filing an amended complaint.
13.Plaintiff resides at 8 Westford Street, in Chelmsford. Plaintiff's residential property, located in Chelmsford's RA Residential zoning district, does not abut the locus and is more than 500 feet from the locus.
Plaintiff asks that the court (1) annul the decision of the Planning Board that granted site plan approval and special permits to Epsilon Group, (2) annul the August 23, 2010 vote of the Board of Selectmen, (3) rescind the Building Permit, (4) annul the October 19, 2010 Decision of the Zoning Board, (5) declare that Epsilon Group's development of locus violates the "intent and terms" of the Preservation Restriction, and (6) order Epsilon Group to restore the locus to its pre-construction condition. The amended complaint contains eight counts: (1) a violation of plaintiffs substantive and procedural due process rights under the Federal Constitution, (2) a request for "enforcement" of G.L. c. 184, § 32 (the complaint cites to G.L. c. 183, § 32 as the statutory basis for the relief sought. The court treats this as a typographical error); (3) a claim titled "Zoning Bylaw Sec. 195 Enforcement"; (4) a claim that the issuance of the building permit violated Article 97 of the Amendments to the Massachusetts Constitution; (5) an appeal under G.L. c. 40A, § 17 from the issuance of the building permit by the Building Inspector, and from a decision of the Chelmsford Zoning Board of Appeals (which decision dismissed Plaintiff's administrative appeal for lack of standing); (6) a petition for a writ of certiorari and mandamus to the Building Inspector and Planning Board under G.L. c. 249, §§ 4 and 5; (7) a petition for a writ of certiorari and mandamus to the Board of Selectmen under G.L. c. 249, §§ 4 and 5; and (8) declaratory judgment under G.L. c. 231A, § 1.
On December 13, 2010, Epsilon Group filed a motion to dismiss. Plaintiff's opposition was filed January 21, 2011. The municipal defendants joined in that motion. On January 27, 2011, the court (Piper, J.) heard argument on the motion to dismiss and took the case under advisement. The parties received the opportunity for additional briefing in light of the March 11, 2011 decision by the Supreme Judicial Court in Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115 (2011), and those supplemental submissions have been taken into account.
The principal issues presented by the motion to dismiss, filed pursuant to Mass. R. Civ. P. 12 (b) (1) and 12 (b)(6) are:
1.Whether Plaintiff is able to enforce the Restriction directly;
2.Whether Plaintiff has standing under G.L. c 40A, § 17 to challenge building permit, or to appeal the Zoning Board's decision that dismissed Plaintiff's administrative appeal;
3.Whether actions in the nature of certiorari, mandamus, or a request for declaratory judgment under G.L. c. 231A, § 1 requiring rescission of a building permit are proper; and
4.Whether Plaintiff has stated a claim under Article 97 of the Amendments to the Massachusetts Constitution, or under G.L. c. 184, § 32.
1.Standard of Review
A motion to dismiss for lack of jurisdiction based on factual insufficiency of the complaint should be granted where the plaintiff's allegations, even if taken as true, do not establish the court's jurisdiction to hear the claim. Ginther v. Comm'r of Ins., 427 Mass. 319 , 322 (1998). In reviewing a motion to dismiss under Mass. R. Civ. P. 12 (b)(1) for lack of subject matter jurisdiction, the court accepts as true the factual allegations in the plaintiff's complaint, as well as any favorable inferences which reasonably may be drawn from those allegations. 427 Mass. at 322. To survive a motion to dismiss under Mass. R. Civ. P. 12(b)(6), the plaintiff's complaint must "provide the grounds of his entitlement to relief [and] requires more than labels and conclusions. Factual allegations must be enough to raise a right to relief above the speculative level [based] on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Iannacchino v. Ford Motor Co., 451 Mass. 623 , 636 (2008) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (internal quotation marks omitted). "What is required at the pleading stage are factual allegations plausibly suggesting (not merely consistent with) an entitlement to relief." Iannacchino v. Ford Motor Co., 451 Mass. at 636.
When deciding a 12(b)(1) motion to dismiss, the court may consider affidavits and other matters outside the face of the complaint that the party moving to dismiss uses to support its claim of lack of subject matter jurisdiction. Ginther, 427 Mass. at 322, n. 6. The question of subject matter jurisdiction goes to the power of the court to hear and decide the matter; a motion under Mass. R. Civ. P. 12(b)(1) is thus an appropriate way to consider this crucial question. Id. See Sweenie v. A.L. Prime Energy Consultants, 351 Mass. 539 , 542, n.9 (2008).
A motion under Rule 12 (b)(6) which refers the court to materials outside the pleadings will be treated as a motion for summary judgment. See Watros v. Greater Lynn Mental Health & Retardation, 421 Mass. 106 , 108-09 (1995). "Summary judgment is granted where there are no issues of genuine material fact, and the moving party is entitled to judgment as a matter of law." Ng Bros. Constr. v. Cranney, 436 Mass. 638 , 643-644 (2002); Mass. R. Civ. P. 56 (c). "The moving party bears the burden of affirmatively showing that there is no triable issue of fact." Ng Bros., 436 Mass. at 644. In determining whether genuine issues of fact exist, the court must draw all inferences from the underlying facts in the light most favorable to the party opposing the motion. See Attorney General v. Bailey, 386 Mass. 367 , 371, cert. den. sub nom. Bailey v. Bellotti, 459 U.S. 970 (1982). Whether a fact is material or not is determined by the substantive law, and "an adverse party may not manufacture disputes by conclusory factual assertions." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Ng Bros., 436 Mass. at 648.
2.Plaintiff's Standing Under G.L. c.40A, § 17
Under G. L. c. 40A, § 17, only "persons aggrieved" have standing to appeal a decision of a zoning board of appeals. If a plaintiff's legal or property rights will (or likely will) be infringed by a board's action, then he qualifies as a "person aggrieved."Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996); Circle Lounge & Grill, Inc. v. Bd. of Appeal of Boston, 324 Mass. 427 , 430 (1949). While the term "person aggrieved" is not to be narrowly construed, the plaintiff's injury must be more than speculative, and must be particularized, distinct from general community interests. Bell v. Zoning Bd. of Appeals of Gloucester, 429 Mass. 551 , 554 (1999) (stating that the violation must be "special and different from the concerns of the rest of the community"); Marashlian, 421 Mass. at 721; Nickerson v. Zoning Bd. of Appeals of Raynham, 53 Mass. App. Ct. 680 , 682 (2003); Harvard Square Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491 , 492-493 (1989) (requiring that plaintiff show "a plausible claim of a definite violation of a private right, a private property interest, or a private legal interest"). In addition, the injury claimed by the plaintiff also must be "legitimately within the scope of the zoning laws." Marashlian, 421 Mass. at 722.
There is an initial presumption that an individual who is entitled to notice of board hearings is a "person aggrieved," [Note 1] although that presumption will fall away if adequately challenged, the question then to be decided on all the evidence. See Standerwick v. Zoning Bd. of Andover, 447 Mass. 20 , 32-33 (2006); Marashlian, 421 Mass. at 721; Marotta v. Board of Appeals of Revere, 336 Mass. 199 , 203-04 (1957). The plaintiff in such a circumstance must provide facts from which the court may find the aggrievement necessary to constitute standing. Standerwick, 447 Mass. at 33-35; Barvenik v. Board of Aldermen of Newton, 33 Mass. App. Ct. 129 , 132 (1992). To establish standing a plaintiff "must put forth credible evidence to substantiate his allegations." Marashlian, 421 Mass. at 721. While a plaintiff does not need to provide a preponderance of evidence at the trial of the case, the evidence provided "must be of a type on which a reasonable person could rely to conclude that the claimed injury likely will flow from the board's action." Butler v. Waltham, 63 Mass. App. Ct. 435 , 441 (2005). To meet the standard of "credible evidence," the evidence offered must provide specific factual support for each of the claimed injury (quantitative), and must be of a type on which a reasonable person could rely (qualitative). Butler, supra, at 441. "Conjecture, personal opinion, and hypothesis" are insufficient. Butler, supra, at 441.
Plaintiff is concededly not a "party in interest" entitled to notice of hearing on permits under chapter 40A concerning the locus. Accordingly, plaintiff does not benefit from the presumption of standing granted to abutters. See G. L. c. 40A, § 11. Instead, the burden is on Plaintiff to demonstrate to the degree required a plausible claim of injury of the sort required. While Plaintiff has advanced numerous theories of aggrievement, if a proper ground of aggrievement is established, it suffices to let the court consider the plaintiff's challenges under chapter 40A, whether or not other grounds may exist to the degree the law requires.
I consider as a threshold matter Plaintiff's allegation that vehicles will "cut through" Westford Street, the street on which Plaintiff lives, because they will seek to avoid traffic congestion on North Road that Plaintiff says will result from Epsilon Group's development. Plaintiff contends that, as a result of this traffic volume increase he says will be caused by the Epsilon project, Plaintiff will suffer increased traffic congestion on his street. I conclude that this claim, if properly substantiated on all the evidence, is of the type which may supply grounds for a zoning plaintiff's standing. The evidence put in by the parties is in conflict, however, on whether the claimed magnitude of this harm will come to pass.
A material increase of traffic on Plaintiffs residential street directly attributable to the project is the type of direct personal injury which, if properly demonstrated, might suffice to show the requisite aggrievement. Of course, Plaintiffs harm in this regard would need to be sufficiently particularized--different from concerns of the rest of the community--and not all traffic exacerbation claims meet this test when finally evaluated on the merits. SeeNickerson v. Zoning Bd. of Appeals of Raynham, 53 Mass. App. Ct. 680 , 683-684 (2003). ("Here, the plaintiffs interest is not substantially different from that of all of the other members of the community who are frustrated and inconvenienced by heavy traffic on Route 44.")
Plaintiff has introduced evidence that is appropriate to support this asserted basis for aggrievement, in the form of an affidavit from one David Beati, P.E., L.S.I.T. The Beati affidavit states that Beati reviewed the site and building plans for the Project, and the traffic reports of both DJK Associates and VAI Transportation Engineers, and concludes that "[t]raffic will surely look to bypass [the locus] at all costs, and cutting through quiet adjacent neighborhoods will certainly be one of them." Additionally, Beati states "I am aware of the plaintiff's property at 8 Westford Street[.] based on my 30 years of familiarity with the traffic patterns on North Road, I have personal knowledge that the preferred `cut-through' for drivers seeking to avoid traffic back ups on North Road is to use Westford Street."
This evidence offered by Plaintiff is tepid, but it is not so faulty that it can be excluded as an evidentiary matter, particularly given that Beati is licensed as an engineer. I do recognize the defendants' challenge to Beati's ability to opine as an expert on traffic issues; his affidavit is certainly light on his expertise in such matters, and does not show him to be someone who regularly practices as an engineer in the discipline of traffic. But I am mindful of the posture of the case, which is before the court on a motion to dismiss. While entirely lay opinion on the topic of traffic impacts generated by the project would be inadmissible, I am not able to say that Beati's affidavit on the subject of traffic is so lacking in foundation that it ought be excluded from the record. The affidavit remains part of the evidence on which the court is to decide the pending dismissal motion.
With a motion to dismiss in front of it, the court is unable to look beyond the affidavit, make judgments about the affiant's credibility, assess the persuasiveness of his sworn statements, or generally to "weigh" evidence. At a minimum, this affidavit gets the Plaintiff beyond the initial hurdle set up by the motion to dismiss. Plaintiff has made the requisite showing under Mass. R. Civ. P. 12 (b)(1) and Iannacchino v. Ford Motor Co., 451 Mass. 623 (2008) that the pleadings (as supported by the record assembled in opposition to the motion to dismiss) present a plausible basis for jurisdiction. On this record, the court is unable to grant defendants' motion, grounded in a challenge to the Plaintiff's lack of aggrievement, and cannot dismiss the zoning action for lack of standing. On the current posture of the case and the record, I determine that the Plaintiff, though not entitled to any presumption of standing, has come forward with some adequate ground of aggrievement to allow him to bring his zoning appeal forward. I accordingly proceed to address the merits of his zoning appeal and other claims, evaluating them under the motion to dismiss standards I have enunciated above. [Note 2]
3.Mandamus and Certiorari
Plaintiff seeks relief in the nature of a writ of certiorari to the Selectmen, the Planning Board, and the Building Inspector, and a writ of mandamus to the Planning Board and the Building Inspector. An action in the nature of certiorari may be brought "to correct errors in proceedings which are not according to the course of the common law, which proceedings are not otherwise reviewable by motion or by appeal[.]" G.L. c. 249, § 4. "[T]he requisite elements for availability of certiorari are (1) a judicial or quasi-judicial proceeding; (2) a lack of all other reasonably adequate remedies; and (3) a substantial injury or injustice arising from the proceeding under review." Warren v. Hazardous Waste Facility Site Safety Council, 392 Mass. 107 , 118 (1983). Unlike certiorari, an action for mandamus under G.L. c. 249, § 5 does not seek review of an adjudicatory proceeding. Rather, mandamus is used "to compel a public official to perform an act which the official has a legal duty to perform." Kitras v. Zoning Adm'r of Aquinnah, 453 Mass. 245 , 256 (2009). The writ of mandamus "will not issue unless the respondent is under a legal duty to perform some particular act or acts the performance of which the court can order in definite terms and enforce if necessary." Boxford v. Massachusetts Highway Dept., 458 Mass. 596 , 607 (2010) (quoting Angelico v. Commissioner of Ins., 357 Mass. 407 , 411 (1970)). "[E]ven if the act sought to be compelled is ministerial in nature, relief in the nature of mandamus is extraordinary and may not be granted except to prevent a failure of justice in instances where there is no other adequate remedy." Lutheran Serv. Ass'n of N.E. v. Metro. Dist. Comm., 397 Mass. 341 , 345 (1986) (citing to Coach & Six Restaurant, Inc. v. Public Works Comm'n, 363 Mass. 643 , 644 (1973)). "Mandamus relief is not a matter of right but of sound judicial discretion." Lutheran Serv. Ass'n of N.E., 397 Mass. at 346.
A.Writs of Mandamus Are Unavailable to Plaintiff
The Building Inspector cannot be compelled to revoke the building permit through the use of mandamus. The use of the mandamus remedy in such a setting hearkens back to an earlier time and to superseded provisions of the zoning statute, and is no longer a viable route for the relief Plaintiff seeks. The enactment of G.L. c. 40A, § 7, added by 1975 Mass. Acts 808, brought an end to the use of mandamus as a method to enforce zoning by-laws. Cases which approved of mandamus as a route to obtaining zoning enforcement, such as Brady v. Board of Appeals of Westport, 348 Mass. 515 (1965), followed a process taken away by the passage of Chapter 808. "With the enactment of the new Zoning Act, the Brady right to mandamus as a remedy for zoning violations committed under color of a building permit 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 adminstrative remedies, a right to obtain judicial review pursuant to G.L. c. 40A, § 17." Vokes v. Avery W. Lowell, Inc., 18 Mass. App. Ct. 471 , 482-483 (1984).
The avenues for relief against the Building Inspector are set forth in Zoning Act. Section 7 of G.L. c. 40A provides the avenue through which Plaintiff could request, and in fact did request, that the Building Inspector revoke the building permit. [Note 3] Section 8 of G.L. c. 40A provides the method through which Plaintiff could appeal an unfavorable decision by the Building Inspector to the Zoning Board of Appeals, which appeal Plaintiff did in fact take. [Note 4] This statutory scheme is wholly adequate to address Plaintiff's concerns, and Plaintiff did in fact take advantage of this administrative appeal process. For these reasons, Plaintiff cannot seek a writ of mandamus to the Building Inspector. This claim for relief is legally unavailable, and requires dismissal.
Plaintiff seeks a writ of mandamus to the Planning Board that would require it to determine that Epsilon's project would violate the Restriction, and on that ground revoke the special permits and site plan approval the project received. "It is well understood that mandamus lies only against a public official performing nondiscretionary acts."Massachusetts Outdoor Advertising Council v. Outdoor Advertising Bd., 9 Mass. App. Ct. 775 , 789 (1980). "Ordering an official body to make... discretionary determinations is not a proper function of a writ of mandamus, since if the act is discretionary there is by definition no official duty to perform it." Channel Fish Co. v. Boston Fish Mkt. Corp., 359 Mass. 185 , 188 (1971). Plaintiff had an adequate remedy at law to seek review of the Planning Board's decision-making under the Zoning Act, and a writ of mandamus will not issue when there is an adequate remedy at law. Lutheran Serv. Ass'n of N.E., 397 Mass. at 345.
In addition, a request for mandamus to the Planning Board which would have the effect of directing it to revoke prior permits, including the special permits issued for the project, simply runs afoul of the provisions of G.L. c. 40A which require the timely prosecution of judicial appeals from local zoning and planning board permit decisions. G.L. c. 40A, § 17 provides the sole avenue for challenge to these kind of permitting decisions of a local board: "...the foregoing remedy shall be exclusive...." This statutory section also mandates that appeals under it be initiated within a twenty-day time period following the filing of the board's written decision (ninety days for allegations of certain procedural defects), and that notice of the action be filed with the municipal clerk within the same time, requirements which are jurisdictional in character, and which the courts have "policed in the strongest way" and given "strict enforcement." See Konover Mgmt. Corp. v. Planning Bd. of Auburn, 32 Mass. App. Ct. 319 , 322-323 (1992). Here, there were timely judicial appeals taken from the special permit decisions, but those appeals were taken by Boars Head, LLC. Plaintiff did not participate initially in those appeals, and did not seek to intervene in them. They were, after initial proceedings in this court, dismissed by the parties to them. And it is undisputed that the case now before the court was filed well after the expiration of the statute of limitations period for bringing an appeal from the board's special permit decisions. Any attempt by Plaintiff in the now pending case to use the mandamus remedy, or any similar alternative method of attaining judicial relief, to modify or annul the permit decisions of the local board, would violate these central principles of G.L. c. 40A, § 17, and cannot proceed.
To the extent that Plaintiff's complaint may be read liberally as seeking a mandamus judgment directed to the Selectmen, ordering them to take action to enforce the Restriction in a manner which would stop the project from going forward, that request also is legally unavailable on the undisputed facts involved here, for many of the same reasons. Most importantly, the action the Plaintiff would have the court order the Selectmen to take is not one which is amenable to mandamus, principally because that action is highly discretionary in the Selectmen, and mandamus does not lie except as to nondiscretionary official actions. To the extent the complaint may be read as requesting that the court order the Selectmen to convene a formal meeting or hearing to consider whether or not to enforce the Restriction to halt the project, that request also is legally inadequate. First, it is not at all shown that the Plaintiff, acting on his own, has any standing to request the court to direct the Selectmen to convene such a meeting. More to the point, it is undisputed that the Selectmen have held such a meeting, and after a full airing of the issues, voted not to pursue enforcement of the Restriction as to the Epsilon project on the locus. Mandamus to hold a meeting already held, to take up a matter already determined by the Selectmen, is relief legally unavailable to Plaintiff.
B.Writs of Certiorari are Unavailable to Plaintiff.
To the extent that the Building Inspector's issuance of a building permit for the Epsilon project constitutes a "proceeding," a writ of certiorari to the Building Inspector is nonetheless not available when there are adequate remedies at law. Warren, 392 Mass. at 118. The adequate and only avenue for review of actions by the Building Inspector is through the administrative (and then judicial) appeal procedure set forth in, and made exclusive by, G.L. c. 40A, s.s. 7, 8 and 17.
Plaintiff cannot obtain relief in the nature of a writ of certiorari to the Planning Board to review the proceedings leading up to their March 19, 2010 or May 7, 2010 grants of special permits. Section 4 of G.L. c. 249 requires that "[s]uch action ... be commenced within sixty days next after the proceeding complained of." G.L. c. 249, § 4. Even if an action to obtain a writ of certiorari were not time barred, it would be unavailable to Plaintiff because the Planning Board's decision to issue special permits give rise to an appeal under G.L. c. 40A, § 17, which remedy is exclusive.
As to the site plan approval, the right to pursue the administrative appeal process under G.L. c. 40A did not vest until the building permit issued, triggering the opportunity of an aggrieved party to request the rescission of the building permit issued on the strength of the site plan approval. If that request, made to the local zoning enforcement officer, proves unsuccessful, the required next step is to pursue relief in an administrative appeal to the Zoning Board of Appeals. St. Botolph Citizens Comm., Inc. v. Boston Redev. Authy., 429 Mass. 1 , 9 (1999). Plaintiff's appeal of this limited aspect of the project's permitting--the site plan approval, challenged through a request to undo the building permit then issued, with following administrative and judicial appeals--appears timely under G.L. c. 40A, § 17. But because this appeal is available to Plaintiff, he has no right to certiorari. Not only is this appeal, by statute, Plaintiff's exclusive remedy, see G.L. c. 40A, § 17, but the cases are firm that certiorari is not available when there are adequate remedies at law. Warren, 392 Mass. at 118.
The requests for certiorari relief as to the Selectmen vote stands on different footing. A suit seeking judgment in the nature of a writ of certiorari to the Selectmen is not time-barred because the vote of the Selectmen complained of by Plaintiff occurred on August 23, 2010, less than sixty days before the filing of the Complaint. This claim also is not foreclosed by the exclusivity provisions of G.L. c. 40A, § 17, because the exclusive remedies available under the Zoning Act are not applicable to a vote of the Selectmen acting not as a zoning board, but as the Board of Selectmen, under the rights conferred upon them by the Restriction. As to this aspect of his certiorari request, Plaintiff appears to have had no other remedy at law. This claim, however, fails the first prong of the test under Warren v. Hazardous Waste Facility Site Safety Council, because a decision by the Selectmen that the Restriction is not violated is not judicial or quasi-judicial in nature. 392 Mass. at 118. The Selectmen did not grant any kind of permit, or zoning relief, nor did they sit in administrative review of a decision of a town officer, such as the building inspector. See O'Donnell v. Board of Appeals of Billerica, 349 Mass. 324 , 328 (1965) (zoning board, in considering request for waiver of provision of local building code, not acting as "tribunal in... performance of judicature' and certiorari does not lie").
Finally, Plaintiff claims that he is entitled to judicial review of the Selectmen's proceedings under the certiorari statute to correct errors of law. Plaintiff argues that the Selectmen's decision not to enforce the Restriction was unlawful because it violates G.L. c.184, § 32 and Article 97 of the Amendments to the Massachusetts Constitution. For the reasons set forth below, it is clear that, as matter of law, accepting as true the well-pleaded allegations of the complaintif, the Selectmen did not commit error. Plaintiff thus is not entitled Plaintiff to a writ of certiorari.
4.Plaintiff Does Not Have a Legal Right to Require any Formal Action to "Release" the Restriction Under G.L. c. 184, § 32
Plaintiff argues that the Epsilon Group project cannot proceed because the Restriction has not been properly released under the provisions of G.L. c. 184, § 32. Under that statute, a preservation restriction "may be released, in whole or in part, by the holder for such consideration, if any, as the holder may determine, in the same manner as the holder may dispose of land or other interests in land, but only after a public hearing upon reasonable public notice, by the governmental body holding the restriction..., and in case of a restriction requiring approval by the... Massachusetts historical commission..., only with like approval of the release." The section goes on the say, "No restriction that has been purchased with state funds or which has been granted in consideration of a loan or grant made with state funds shall be released unless it is repurchased by the land owner at its then current fair market value. Funds so received shall revert to the fund sources from which the original purchase, loan, or grant was made, or, lacking such source, shall be made available to acquire similar interests in other land." Here, the Selectmen did not vote to release the locus from the Preservation Restriction. In fact, the continued existence and enforceability of the Restriction is not challenged in the instant lawsuit. The Plaintiff's position, however, is that by reaching the conclusion that the Epsilon Group's project is consistent with the development permitted by the Restriction, the Selectmen have in essence released the Restriction, but in a way that impermissibly avoids the scrutiny of G.L. c. 184, § 32 (such as the need for approval from the Massachusetts historical commission). I need not decide this issue because Plaintiff lacks standing to raise it.
Under the terms of the Restriction "[t]he Board of Selectmen shall have the authority to enforce the provisions of this Preservation Restriction." When a restriction under G.L. c. 184 states by whom it may be enforced, that language is to the exclusion of others. See Wolfe v. Gormally, 14 LCR 629 , 633-34 (2006) (Misc. Case No. 274368) (Piper, J.); see also Brear v. Fagan, 447 Mass. 68 (2006) (holding unenforceable restrictions that fail to name party entitled to enforcement). But see Rosenfeld v. Zoning Bd. of Mendon, 78 Mass. App. Ct. 677 , 682 (2011) ("[A]n owner of land that adjoins the restricted land is entitled to enforce a deed restriction, whether or not the instrument imposing the restriction contains an express statement that the adjoining land is intended to benefit from the restriction."). Plaintiff has no standing to enforce the Restriction, because he is not named in the Restriction. Wolfe v. Gormally, supra. Plaintiff cannot seek enforcement of the Restriction, even under the recently decided Rosenfeld case, because Plaintiff is not "an owner of land that adjoins the restricted land." 78 Mass. App. Ct. at 682. The Restriction is clear that the power to enforce it resides in the Selectmen and only in the Selectmen. Nothing about the Restriction lends itself plausibly to the conclusion that the Restriction was intended to vest in each citizen of Chelmsford an independent right to enforce the restrictive covenants of the Restriction, should one or more of those citizens, acting in their own names and interest, conclude that it was an appropriate occasion to have a court enjoin one violation of the Restriction or another. The court is bound to respect the plain language of the recorded instrument, and, doing so, concludes that a landowner like Plaintiff, acting alone, lacks an independent right to access the judicial system to have the Restriction enforced.
This is enough for me to conclude that Plaintiff does not have a legally cognizable right to have this court reach and decide the merits of Plaintiff's claim that the Epsilon Group project runs afoul of the provisions of the Restriction. Because Plaintiff lacks the standing to advance this position with the court, his claim on this score is entitled to dismissal for failure to state a claim upon which relief may be granted. That is not to say, of course, that were the court to reach the merits of this claim, it would find anything meritorious in it. In the prior Boars Head, LLC litigation, now ended, the court was called upon to rule on a request for preliminary injunction to halt the project, and in that context considered the likelihood that the prior plaintiffs eventually would prevail. The court, in an order issued June 25, 2010, denied the injunction request, concluding that:
Plaintiffs also are not likely to prevail on the merits as to the project's satisfaction of the aesthetic and architectural requirements set out in the preservation restriction. That the new buildings must have a barn-like appearance is certainly so; that the proposed construction would fail to accomplish this is not at all shown on the injunction record before the court--particularly in light of the renderings, presented to the court, of the facade of the project, which have secured favorable review from the local planning board and historic district commission, as contemplated by the restriction. And as to the proposed multi-purpose commercial use of the project, plaintiffs do not appear likely to fare any better. The restriction expressly envisions use of new buildings on the parcel in any manner authorized by the local zoning bylaws, so there is no basis to say that the use involved here would stray outside the uses permitted under the restriction's terms.
5.Plaintiff Has Failed to State a Claim Under Article 97 of the Amendments to the Massachusetts Constitution
Plaintiff claims that the Restriction is an interest subject to Article 97 of the Amendments to the Massachusetts Constitution, and that the Epsilon Group project cannot proceed without action by the General Court. Article 97 provides that:
The people shall have the right to clean air and water, freedom from excessive and unnecessary noise, and the natural, scenic, historic, and esthetic qualities of their environment; and the protection of the people in their right to the conservation, development and utilization of the agricultural, mineral, forest, water, air and other natural resources is hereby declared to be a public purpose.
Lands and easements taken or acquired for such [public] purposes shall not be used for other purposes or otherwise disposed of except by laws enacted by a two thirds vote, taken by yeas and nays, of each branch of the general court.
Plaintiff contends that a two-thirds vote of the General Court was required to "approve" use of the locus "for other purposes." Plaintiff's argument assumes two things: that the Restriction, a real convenant, is the type of property interest that is covered by the language "Land and easements" in article 97, and that the development of the locus is either "use for other purposes" or some kind of disposition.
It is the second assumption that is fatal to Plaintiff's argument. For the same reasons that no release was required under G.L. c. 184, § 32, this is not a "use for other purpose" because the benefitted parties have not given up anything. In Haugh v. Simms, 64 Mass. App. Ct. 781 (2005), the Appeals Court upheld a Land Court judge's determination that where a private party has an easement over a road owned in fee by the Commonwealth, the installation of utilities pursuant to G.L. c. 187, § 5 was not a disposition requiring approval of the Legislature under article 97. 64 Mass. App. Ct. at 789-90. The Land Court decision reasoned that "Even if [the subject lands] are properly classified as conservation lands and subject to Article 97," the easement burdening the Commonwealth's fee "arose as part of the Commonwealth's acquisition of those parcels[,]" and in effect, the recognition of an existing easement "would simply be meeting its legal obligation, not a `disposition.' Haugh v. Simms, 11 LCR 232 , 233 (2003) (Misc. Case No. 255420) (Lombardi, J.). The facts are admittedly different here, where the municipality parted with fee ownership and reserved a preservation restriction for its benefit. The result, however, is the same. By allowing development of the locus, consistent with the terms of the Restriction, the Town of Chelmsford is "simply... meeting its legal obligation" and is not making "a disposition" of any property rights. Id.
In any event, here too it is not the case that the Plaintiff, who sues individually as a single landowner within the Town, may vindicate any claimed possible failure to abide by the strictures of Article 97. Even were there to be any legally sufficient claim that the constitutional prerequisites were implicated and ignored (something I conclude as a matter of law could not have taken place, even accepting every well-pleading allegation of the complaint) Plaintiff has failed to show how he, in his own name, has the ability to bring forward this litigation on this point.
6.Plaintiffs Count for Review Under G.L. c. 40A, § 17 Also Must Be Dismissed.
As discussed above, Plaintiff has perfected what is, in effect, an appeal of the grant of site plan approval, by following the steps required under the zoning statutes and related decisional law. He could not have sought direct judicial review of the site plan approval, and instead awaited the issuance of a building permit, followed by an administrative appeal to the Zoning Board of Appeals. That board determined Plaintiff lacked standing to proceed on the administrative appeal, and dismissed it. From there, Plaintiff, by amending his complaint, has brought in this court a count pursuant to G.L. c. 40A, § 17, challenging the Zoning Board's action. While I do not, for the reasons set forth above, determine on the record before me that Plaintiff lacks standing to pursue this zoning challenge, for the reasons which follow I do rule that, applying the standards of Mass. R. Civ. P. l2(b)(6), Plaintiff's zoning appeal fails to state a claim upon which the court may grant relief. I am bound dismiss the amended complaint's count under G.L. c. 40A, § 17.
Plaintiff argues that the Planning Board's failure to give notice to the Selectmen prior to issuing the special permits is fatal to both the special permits, and the site plan approval. Plaintiff argues that if the Selectmen had made their determination whether the project is consistent with the Preservation Restriction before the special permits issued, the Selectmen would have come to the opposite conclusion. This is because a change in membership of the Selectmen's Board occurred following town elections in April 2010. In any event, in August of 2010, a quorum of the duly elected Board of Selectmen determined that the Restriction is not violated by Epsilon Group's development, and specifically declined to enforce the Restriction as to the project. Even if I were to conclude that the Planning Board committed error by issuing special permits prior to the August 23, 2010 meeting of the Selectmen, which I do not, there is no relief the court could grant that is not moot or futile. There is no way to travel back in time to a world when the members of the 2009 Board of Selectmen constituted the board charged with determining the project's compatibility with the Restriction. It would be beyond the limits of judicially competent proof for the court to hear evidence of how former members of the Board of Selectmen would have voted on a question never before them. And it is not at all clear that a determination by the Selectmen in 2009, even if it had been made, would be binding on future boards of selectmen. Ultimately, the only relief the court could order would be that the Planning Board's action be undone, and that the current Planning Board not consider or issue the special permits until the Selectmen--the incumbent Selectmen--have decided whether the Restriction is violated. But the Selectmen already have made that determination, and the court cannot order elected officials to change their minds.
Finally, I determine that the Amended Complaint, even read indulgently as Rule 12 requires, fails to make any allegation that lawfully could cause the court to conclude that the Planning Board erred in approving the site plan, or that the Building Inspector erred in issuing the building permit.
"Site plan review may be attached to either a special permit process for uses that are not as of right or to the issuance of a building permit for uses that are as of right."Dufault v. Millennium Power Partners, 49 Mass. App. Ct. 137 , 139 (2000). In the first type of site plan review, the Planning Board acts as a special permit granting authority, and its decisions are immediately appealable. See Quincy v. Planning Bd. of Tewksbury, 39 Mass. App. Ct. 17 (1995). In site plan review that attaches to the issuance of a building permit, "the right of an aggrieved person to appeal... arises only when the building permit for the proposed project is issued or denied by the building inspector."St. Botolph Citizens Comm., Inc. v. Boston Redev. Authy., 429 Mass. 1 , 9 (1999).
The requirements of site plan review in Chelmsford are set forth in Section 195-104 of the Town's Zoning Bylaw. Neither party has furnished the court with a copy of Chelmsford's Zoning Bylaw, and I am not able to take judicial notice of a local bylaw. The Certificate of Decision, issued by the Planning Board and filed with the Town Clerk on March 19, 2010, states that the locus is "located in the CD General Commercial District" and that "The proposed professional office use is allowed by right in the CD district and requires Site Plan Review under Section 195-104." From this language, it is clear that what is here involved is the as-of-right type of site plan review, in which the Planning Board lacks a plenary power of denial, but rather is limited to imposing reasonable conditions concerning the development on the ground. The site plan at issue here is one which the Planning Board was without authority to deny, so as to prevent the project from going forward altogether. See Muldoon v. Planning Bd. of Marblehead, 72 Mass. App. Ct. 372 , 374 (2008) (describing limits of site plan review). Accordingly, a court may only review a site plan approval to see if it presents such intractable problems as admit of no reasonable solution. Prudential Ins. Co. of America v. Board of Appeals of Westood, 23 Mass. App. Ct. 278 , 284 (1986).
Plaintiff challenges the site plan review and approval on the grounds that Epsilon or the Planning Board failed to comply with sections 2.4, 3.4, 4.1, 4.5, and 4.9 of the Site Plan and Special Permit Regulations and Procedures ("Regulations"). I will address each alleged violation in turn.
Section 2.4 is titled Other Permits and Variances and requires that an applicant list and provide copies of all variances, permits, and special permits previously issued by any town board, or state or federal agency. Plaintiff's claim is that Epsilon Group could not have complied with section 2.4 of the Regulations without first obtaining, and then providing to the Planning Board, a release of restriction under G.L. c. 184, § 32. This argument, a recurrent theme in the complaint, lacks legal heft, because, as discussed above, the Selectmen after full hearing determined that no release of restriction was required, in light of their conclusion that the covenants of the Restriction are not violated by the project. For that reason, there was no failure to comply with section 2.4 of the Regulations because there was no "permit" or "release of restriction certificate" to be provided.
Section 3.4 of the Regulations requires that the Planning Board transmit a copy of an application to other "Town Boards, Departments, Commissions, Agencies, Committees, or independent consultants in order to ensure full and qualified review of the application." The Decision indicates the Planning Board received input from the following town officials or bodies: the Building Inspector, Police Traffic & Safety, the Conservation Commission, the Chelmsford Water District, Fire Prevention, the Sewer Commission, Community Development, the Board of Health, Public Works, the Bicycle and Pedestrian Committee, the Chelmsford Historic District Commission, and the ADA Coordinator. Plaintiff alleges that "At no time prior to the issuance of said building permit by the defendant, Building Inspector, did the defendants Epsilon Group, LLC and Town of Chelmsford Planning Board, give any notice or opportunity to be heard whatsoever to the defendant, Board of Selectmen, regarding the defendant/developer's proposed project at the locus."
If the Selectmen had not acted by the time this lawsuit commenced, the court's remedy would be to direct a remand to the Selectmen for consideration of this question. This remedy is no longer viable or required because the Selectmen in fact have considered the question. For this reason, the site plan approval is immune from challenge on the basis of the Restriction, or on an alleged lack of notice to the Selectmen, who are the designated enforcers of the Restriction. Plaintiff's true quarrel is not with the Planning Board for granting the site plan review - Plaintiff has not pleaded with any particularity that one, or indeed any, of the conditions imposed are inadequate, or that the site plan was approved without sufficient conditions. Rather, Plaintiff disagrees with the Selectmen's determination that the project does not violate the Restriction.
Section 4.1 of the Regulations requires the Planning Board to send to "Parties in Interest" a notice of public hearing by certified mail, and to publish a notice of public hearing in the Chelmsford Independent or Lowell Sun newspapers. Legal notice was in fact published in the Chelmsford Independent and Plaintiff does not allege otherwise. Notwithstanding that Plaintiff is not a "party in interest" under the provisions of G.L. c. 40A, § 11, Plaintiff alleges that he was entitled to notice of the Planning Board hearings above and beyond publication in the Chelmsford Independent. This claim is wholly without merit.
Section 4.5 of the Regulations provides that the affirmative vote "of a majority of the voting members of the [Planning] Board shall be necessary to decide in favor of granting" site plan approval. Section 4.5 further provides that the Planning Board is to file its decision with the Town Clerk, and send notice of its decision to "the property owner, to other Town Boards and Departments, to Parties in Interest and to those who have requested such notice at the public hearing." There is no allegation that the Planning Board approved the site plan by less than a majority vote. Plaintiff's only basis for claiming Section 4.5 was not complied with is that the Board of Selectmen did not receive a copy of the Planning Board's decision. Again, Plaintiff's objection is that the Selectmen did not consider the Restriction issue until after the Planning Board process. For the reasons set forth above, there is no relief the court can grant that would not be futile because the Selectmen, in August 2010 did consider the issue of the Restriction, and the site plan approval is consistent with the Selectmen's determination.
Section 4.9 states that "The granting of a permit constitutes approval only under the pertinent sections of the Bylaw" and that "Other permits or approvals required... shall not be assumed or implied." Moreover, the Planning Board "may condition any permit... on satisfactory demonstration of compliance with the requirements of other governmental bodies[.]" Plaintiffs view of how this section was violated is not clear from the pleadings, but even reading these allegations with great liberality, there is no legal basis to afford any relief. To the extent that Plaintiff argues, as he does throughout the complaint, that the Planning Board should have conditioned their site plan approval on action by the Selectmen, that argument is moot because the Selectmen have considered the question and have determined the project does not violate the Restriction, and they will not take steps to enforce it.
It bears emphasis that the breadth of the count in the amended complaint under G.L. c. 40A, § 17 is, as a matter of law, far narrower than Plaintiff would have it. Plaintiff has preserved his opportunity to use that statute to challenge, in the indirect fashion contemplated for appeal of site plan review approvals, the Planning Board's site plan decision. But Plaintiff has not preserved any right to judicial review of the other, special permit, decisions of the Planning Board. As discussed above, these decisions were appealed timely by other parties, but those appeals have been dismissed. Plaintiff was not involved at any time in those timely appeals. Plaintiff appears to take the position that because he has taken an administrative appeal from the Building Inspector's issuance of the project's building permit, and then sought judicial review of the Board of Appeals' turndown of that administrative appeal, Plaintiff now may subject to review by this court the entire panoply of permits issued for the Epsilon project, including the special permits that were challenged in the prior Boar's Head, LLC litigation. But this is not so. The filing of a request for enforcement to have a building permit revoked does not restore the requesting party's right to appeal, under G.L. c. 40A, s.17, earlier special permit decisions long after the running of the short statute of limitations set in that section. Those special permit decisions are final, and beyond attack. It is only the site plan approval which Plaintiff could bring before the court for review under G.L. c. 40A, s.17, and the claim to have the site plan approval modified or annulled by the court fails as a matter of law under Rule 12(b)(6) for the reasons given above.
7.Plaintiff's Assertion of a Right to Declaratory Judgment Is Legally Insufficient.
The complaint asserts a right to declaratory judgment under G.L. c. 231A. Section 1 of that chapter gives the Land Court power, "within [its] respective jurisdiction," to "make binding declarations of right, duty, status and other legal relations sought thereby,... in any case in which an actual controversy has arisen and is specifically set forth in the pleadings...."
The statute goes on to say that a declaratory judgment is available "whether any consequential judgment or relief is or could be claimed at law or in equity or not; and such proceeding shall not be open to objection on the ground that a merely declaratory judgment or decree is sought...."
While the availability of judicial declaration is one of the great innovations of modern pleading, the right to gain a declaratory judgment is not unfettered. One firmly applied requirement is that the party seeking the judgment have the requisite standing. In Bonan v. Boston, 398 Mass. 315 , 320 (1986), the court concluded that plaintiff landowners and managers lacked the standing necessary to obtain a judgment declaring invalid certain provisions of Boston's zoning laws, concluding that their complaint did not allege sufficiently that the contested sections substantially adversely affected the plaintiffs. The Supreme Judicial Court said:
The complaint, however, does not "specifically set forth" (G.L. c. 231A, § 1) an actual controversy warranting the immediate entry of a judgment declaring art. 26 a nullity. It is not sufficient for the purposes of establishing an actual controversy for a plaintiff simply to find a defendant who disagrees on some point of law. See Pratt v. Boston, 396 Mass. 37 , 43 (1984). A plaintiff must have standing, a definite interest in the matters in contention in the sense that his rights will be significantly affected by a resolution of the contested point. See Massachusetts Ass'n of Indep. Ins. Agents & Brokers, Inc. v. Commissioner of Ins., 373 Mass. 290 , 292-293 (1977); School Comm. of Cambridge v. Superintendent of Schools of Cambridge, 320 Mass. 516 , 518 (1946).
The complaint does not show that art. 26 has an immediate and significant effect on the plaintiffs ...Id.
In Chase v. Planning Bd. of Watertown, 4 Mass. App. Ct. 430 (1976), the Appeals Court upheld a dismissal, under Rule 12, of a declaratory judgment action brought by twenty Watertown residents, in which they sought to challenge a local planning board's decision in which, by a divided vote, the board determined that a tract of land was a "blighted open area" within the meaning of G.L. c. 121A, § 1. The Appeals Court held that the "plaintiffs, as residents, voters, taxpayers, or town officials, may not use chapter 231A to obtain declaratory relief concerning the validity of an official act." Id. at 431 (citations omitted). The Chase court relied on the teaching of the Supreme Judicial Court in Povey v. School Comm. of Medford, 333 Mass. 70 , 71-72 (1955), in which the court observed: "If... these taxpayers are proper parties to this proceeding why must not all other taxpayers who have the same rights as the plaintiffs be made parties? And if all others are not made parties why may not other taxpayers who are not bound by the present proceeding bring other and later suits in their respective rights? And if ten or more taxpayers have a right to sue for declaratory relief, why does not a single taxpayer have the same right? We cannot believe that the Legislature intended that public officers should be subject to harassment by taxpayers as to their official acts in this manner."
Plaintiff's effort in the case now before this court to invoke the declaratory judgment statute falls short, based on these principles of standing. Even reading his complaint with much liberality, and accepting as true all of its well-pleaded allegations, Plaintiff has not shown himself to be entitled to obtain any declaratory judgment. His interest in the local processes which led to the determinations that the local boards made about the meaning and scope of the Restriction, and its applicability to the Epsilon Group project, is no different or better than that of any other resident. and taxpayer in the Town of Chelmsford. He has no statutorily established right to bring this suit. His allegations do not show how his rights possibly would be significantly affected by a resolution of any contested point raised in the complaint.
To the extent plaintiff has rights to challenge judicially the land use decisions of the local planning and zoning boards, those rights are conferred by G.L. c. 40A. His rights to proceed under that statute have been addressed elsewhere in this decision, and, for the reasons given, his claims under the zoning statute require dismissal. Chapter 231A is not an available route to run around the exclusive review requirements of G.L. c. 40A, § 17. And Plaintiff certainly cannot use the declaratory judgment act to revitalize zoning appeals that are time-barred.
As to the remainder of the declaration Plaintiff is looking for, he lacks the standing required to have the court pass on those questions. It is obvious that Plaintiff disagrees with the legal determinations made by various officials of the Town, but he is not legally entitled to employ the declaratory judgment statute to have the court weigh in on those points.
8.Motion to Expand Record
On March 4, 2011, Plaintiff filed a motion to expand the record, offering two documents. The first is apparently six pages from a much longer report titled "A Report by the Trust for Public Land for the Long Island Community Foundation and the Rauch Foundation." The second is a letter to the clerk's office from Plaintiff, but essentially is a short supplementary legal memorandum to the court. Upon review of the filings, I allow the supplemental legal memoranda into the record, but do not admit the Long Island report, which is not relevant and is inadmissible hearsay. Even if I had been inclined to allow its inclusion in the record, nothing contained in the truncated version of the Long Island report offered by Plaintiff would have had any bearing on my decision today.
Defendants' motion to dismiss is GRANTED.
[Note 1] The rebuttable presumption of standing is provided to "parties in interest," which include "the petitioner, abutters, owners of land directly opposite on any public or private street or way, and abutters to abutters within 300 feet of the property of the petitioner as they appear on the most recent applicable tax list." See G. L. c. 40A, § 11.
[Note 2] I note parenthetically that many, if not all, of the other grounds for aggrievement Plaintiff asserts are so unsupported and speculative as to be unworthy of consideration, even at this posture of the case. The assertions of diminution in value to Plaintiff's property as a result of the challenged project are unfounded lay opinions about a matter which requires expert substantiation. So too with the generalized and ungrounded allegations that the project will somehow inflict noise, or litter, or similar adverse impacts on the non-abutting McClure residential property.
[Note 3] Section 7 reads in relevant part: "If the officer or board charged with enforcement of zoning ordinances or by-laws is requested in writing to enforce such ordinances or by-laws against any person allegedly in violation of the same and such officer or board declines to act, he shall notify, in writing, the party requesting such enforcement of any action or refusal to act, and the reasons therefor, within fourteen days of receipt of such request."
[Note 4] Section 8 reads: "An appeal to the permit granting authority as the zoning ordinance or by-law may provide, may be taken by any person aggrieved by reason of his inability to obtain a permit or enforcement action from any administrative officer under the provisions of this chapter, by the regional planning agency in whose area the city or town is situated, or by any person including an officer or board of the city or town, or of an abutting city or town aggrieved by an order or decision of the inspector of buildings, or other administrative official, in violation of any provision of this chapter or any ordinance or by-law adopted thereunder."