304 STUART STREET LLC and 003 REALTY LIMITED PARTNERSHIP v. BOSTON REDEVELOPMENT AUTHORITY, ROBERT L. FONDREN, JAMES C. CLARK, DAVID MARK, JAY HURLEY, JANE COOPER BRAYTON, WILLIAM TARLOW, M. PAT TIERNEY, JILL HATTON and JOHN M. ARROYO, as they are members of the Boston Zoning Commission, and not individually, CITY OF BOSTON, BERKELEY/COLUMBUS REAL ESTATE LLC and LIBERTY MUTUAL GROUP.

INTRODUCTION

The Plaintiffs in this case, 304 Stuart Street LLC ("304 Stuart Street") and 003 Realty Limited Partnership ("RLP") (collectively, "Plaintiffs") challenge the Planned Development Area Overlay District ("PDA") zoning designation of a l+ acre site in Boston's Back Bay, owned by Defendants Berkeley/Columbus Real Estate LLC and Liberty Mutual Group ("the Liberty Mutual site"). The Plaintiffs, whose properties are located on the same block as, and abut, the Liberty Mutual site, have appealed the PDA zoning designation under § 10A of the Boston Zoning Enabling Act [Note 1] ("§ 10A"), seeking to have the PDA zoning of the Liberty Mutual site annulled. Among other things, Plaintiffs claim that both the vote of the Defendant Boston Zoning Commission ("Commission") amending the Boston Zoning Code (the "Code") [Note 2] to make Liberty Mutual's land eligible for PDA designation, and the favorable recommendation of said amendment by the Defendant Boston Redevelopment Agency ("BRA"), were based on legally untenable grounds, were arbitrary and capricious, and were not based on substantial evidence. [Note 3]

The Plaintiffs also claim that the Commission was without authority to approve the PDA zoning designation for the Liberty Mutual site, at least in part because the Commission's vote was infected by the BRA's unauthorized action in approving the PDA Development Plan before the Code was amended to make the site eligible for a PDA.

On March 16, 2011, the BRA filed a Motion to Dismiss the Plaintiffs" Complaint, pursuant to Mass R. Civ. P. 12 (b) (1) and 12 (b) 6. In its Motion, the BRA argues that the Plaintiffs have no private right of action under the Enabling Act or the Code to challenge the BRA's approval of a PDA Development Plan. Accordingly, the BRA argues, the Plaintiffs lack standing and the Amended Complaint fails to state a proper claim against the BRA. The Plaintiffs have opposed the BRA's Motion, claiming that they have standing as "aggrieved persons" to appeal the BRA's actions under § 10A. For the reasons set forth below, the BRA's Motion to Dismiss is ALLOWED.

DISCUSSION

A motion to dismiss under either Mass. R. Civ. P. 12 (b)(1) or Mass. R. Civ. P. 12(b)(6) may be granted only "where it appears with certainty that the non-moving party is not entitled to relief under any combination of facts that he could prove in support of his claims." Sullivan v. Chief Justice, 448 Mass. 15 , 21 (2006). Accepting the factual allegations in the Amended Complaint as true, I conclude that the Plaintiffs have failed to state a claim against the BRA. Contrary to the Plaintiffs' contentions, the remedy set forth in § 10A is limited to appeals from the actions of the Commission, and does not provide a direct avenue of appeal from actions taken by the BRA. Moreover, the Plaintiffs have expressly disavowed any alternative claim for a record review of the BRA's proceedings.

Notably, § 10A is the sole jurisdictional basis recited in the Amended Complaint with respect to Plaintiffs' claims against the BRA. This is the same (and sole) jurisdictional basis, moreover, that the Plaintiffs rely upon in opposing the BRA's Motion to Dismiss, insisting that the BRA's actions are subject to de novo review under § 10A. Contrary to the Plaintiff s contentions, however, there is nothing in the language of § 10A which either expressly or impliedly authorizes aggrieved persons to appeal the BRA's actions with respect to recommending proposed text or map amendments to the Code, or with respect to.approving a PDA Development Plan. Rather, the plain and unambiguous language in § 10A authorizes only appeals from the Commission's actions. [Note 4]

The case law cited by the Plaintiffs does not support a more expansive interpretation of § 10A. In particular, Plaintiff's reliance upon Loring Hills Developers Trust v. Planning Board of Salem, 374 Mass. 343 , 349-50 (1978) is misplaced. In Loring Hills, the Supreme Judicial Court concluded, inter alia, that a planning board may not override an adverse recommendation of a board of health with respect to a proposed subdivision plan, and that a statutory appeal from a subdivision approval or disapproval may place in issue the validity of such recommendation. Thus, the Court allowed the recommendation of the board of health to be reviewed de novo as part of the G.L. c. 41, § 81BB appeal from the planning board decision.

The BRA's role under the Zoning Enabling Act with respect to a PDA designation is not, however, analogous to a board of health's role under the Subdivision Control Law. Unlike the board of health report, which is statutorily binding on a planning board under the Subdivision Control Law, [Note 5] there is nothing in the Zoning Enabling Act which makes the BRA's recommendations binding on the Commission with respect to its adoption or amendment of zoning regulations and boundary designations (including PDA designations). [Note 6] Rather, the BRA's role under the Enabling Act is more properly analogous to a planning board's advisory role under § 5 of the statewide Zoning Act, G.L. c. 40A. See St. Botolph Citizens Committee, Inc. v. Boston Redevelopment Authority, 429 Mass. 1 , 3 (1999) (in addition to its statutory roles as an urban renewal agency and redevelopment authority, the "BRA also serves as the planning board for Boston. See St. 1960, c. 652, § 12"). It is settled that a planning board's zoning recommendations to the legislative body are "preliminary and advisory only" and do not bear on the ultimate validity of zoning regulations. See, e.g., Crall v. City of Leominster, 362 Mass. 95 , 99-100 (1972) (citing Burlington v. Dunn, 318 Mass. 216 , 218 (1945); see also Hallenborg v. Town Clerk of Billerica, 360 Mass. 513 , 517-519 (1971) and cases cited therein. Accordingly, where the BRA's zoning recommendations and reports do not bind the Commission, it is only the Commission's actions which are subject to de novo judicial review under § 10A.

The Plaintiffs' challenge to the PDA designation procedure does not raise a cognizable § l0A claim against the BRA, either. One of the grounds on which the Plaintiffs seek to have the Liberty Mutual site PDA zoning invalidated is that the Commission's vote establishing the PDA designation was based upon a PDA Development Plan approval made by the BRA in contravention of the requirements contained in Section 80C of the Code. [Note 7] However, while § 10A plainly provides for an appeal from the Commission's zoning decisions based on procedural defects in such decisions, it does not also not provide for a direct appeal from the BRA's approval of a PDA Development Plan - a procedure governed by Section 80C of the Code but not addressed in § 3 of the Enabling Act. [Note 8]

To the extent that the BRA's PDA Development Plan approval proceedings under Section 80C of the Code could be subject to direct judicial review at all, [Note 9] they would be subject to an administrative record review and not the § l0A de novo review sought by the Plaintiffs. See Manning v. Boston Redevelopment Authority, 400 Mass. 444 (1987) (the BRA's actions approving a PDA Development Plan were reviewed on the administrative record in conjunction with a de novo appeal of the Commission's actions establishing a PDA). Compare St. Botolph Citizens Committee, Inc. v. Boston Redevelopment Agency, 429 Mass. supra at 8-10 (where the BRA was acting solely in its capacity as planning board in making an adequacy determination under the Code for a large-scale development project, its decision was not reviewable by an action in the nature of certiorari, inasmuch as the applicable provisions of the Code contemplated a comprehensive review and approval process, similar to site plan review and culminating in issuance or denial of a building permit from which action parties are provided an explicit right of review and appeal under the Code).

Here, the Plaintiffs have repeatedly insisted, both in their Opposition to the BRA's Motion to Dismiss and in their subsequent Opposition to the BRA's Motion for a Protective Order, that their claims against the BRA arise exclusively under § 10A, and do not include any claims for administrative record review. Indeed, their Opposition to the BRA's Motion for a Protective Order contains the following emphatic statement:

Notably, the First Amended Complaint does not present any claim for judicial review of the decision of any administrative agency or for any other proceeding on the administrative record pursuant to the standards set forth in G.L. c. 30A, § 14, G.L. c. 249, § 4, or similar statutes.

Plaintiffs' Opposition, p. 4 (emphasis in original). [Note 10]

Accordingly, because I conclude that the First Amended Complaint fails to state a cognizable claim against the BRA under § 10A or under any other statutory provision, the BRA's Motion to Dismiss the Plaintiffs' claims against the BRA is ALLOWED.

So Ordered.

By the Court.