MISC 12-458748

August 3, 2012


Foster, J.


Minute Man National Park Association, Inc., a/k/a the Friends of Minute Man National Park (“Friends”) filed its Complaint on January 31, 2012 and its First Amended Complaint on February 3, 2012 (the “Complaint”). The Complaint is an appeal under G.L. c. 40A, § 17, from a special permit that the defendant Town of Lincoln Zoning Board of Appeals (“ZBA”) issued on January 11, 2012 to the defendant Nupath, Inc. (the “Special Permit”). The Special Permit granted Nupath the right to construct a single family residence on a nonconforming lot (the “Property”) that Nupath leased from the defendant Town of Lincoln Affordable Housing Trust (“Housing Trust”). In the Complaint, Friends seeks a judgment annulling the Special Permit on the grounds that it was arbitrary and capricious, contrary to law, not based on evidence, and in excess of the ZBA’s authority.

The ZBA and the Housing Trust filed Motion for Judgment on the Pleadings Filed on Behalf of Town of Lincoln Zoning Board of Appeals and Town of Lincoln Affordable Housing Trust (“Motion for Judgment on the Pleadings”) pursuant to Mass. R. Civ. P. 12(c) on April 19, 2012. The grounds for the Motion for Judgment on the Pleadings is that Friends is not a “person aggrieved” by the Special Permit as defined by G.L. c. 40A, § 17—i.e., that Friends lacks standing. Friends filed its Opposition to Motion for Judgment on the Pleadings (“Opposition”), which included the Affidavits of Robert Morris and Nancy Nelson, on May 21, 2012. The ZBA and the Housing Trust filed their Motion to Strike Affidavits of Nancy Nelson and Robert Morris (“Motion to Strike”) on June 1, 2012. The Court heard argument on the Motion for Judgment on the Pleadings on June 1, 2012, and took the Motion under advisement. The Court also heard argument on the Motion to Strike on June 1, 2012, took the Motion to Strike under advisement, and gave Friends the opportunity to submit an opposition to the Motion to Strike, which it filed on June 7, 2012. For the following reasons, the Motion to Strike is DENIED, and the Motion for Judgment on the Pleadings is ALLOWED.

Motion to Strike

Whether the affidavits should be struck depends upon the standard for deciding the Motion for Judgment on the Pleadings. A motion for judgment on the pleadings under Mass. R. Civ. P. 12(c) is “actually a motion to dismiss . . . [that] argues that the complaint fails to state a claim upon which relief can be granted.” Jarosz v. Palmer, 436 Mass. 526 , 529 (2002). In considering the motion, the court accepts as true well-pleaded factual allegations and reasonable inferences drawn therefrom, Marram v. Kobrick Offshore Fund, Ltd., 442 Mass. 43 , 45 (2004), but does not accept “legal conclusions cast in the form of factual allegations.” Iannacchino v. Ford Motor Co., 451 Mass. 623 , 633 (2008), quoting Schaer v. Brandeis Univ., 432 Mass. 474 , 477 (2000). Generally, “if, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment.” Mass. R. Civ. P. 12(c). The court may, however, take into consideration documents integral to, referenced in, or explicitly relied upon in the complaint, even if they were not attached, without converting the motion into one for summary judgment. Marram, 442 Mass. at 45 n.4; Shuel v. DeIeso, 16 LCR 329 , 329 (2008). A party’s characterization of a document cannot contradict the document itself; the document controls. Id., citing Ng Bros. Const. Inc. v. Cranney, 436 Mass. 638 , 647-648 (2002).

The ZBA and the Housing Trust argue that the affidavits should be struck because it is inappropriate for Friends to attempt to convert the Motion for Judgment on the Pleadings into a summary judgment motion. The affidavits, however, will not convert the Motion into a summary judgment motion, for two reasons. First, even though the category of “matters outside the pleadings” is construed broadly, in order for the motion to be converted into one for summary judgment, “such matters must provide some relevant, factual information to the court.” Stop & Shop Cos. v. Fisher, 387 Mass. 889 , 892 (1983); see also Eigerman v. Putnam Invs., Inc., 450 Mass. 281 , 285 n.6 (2007) (affidavit that adds nothing material to the facts already alleged in the complaint does not convert motion to dismiss into summary judgment motion); Orion Ins. Co. v. Shenker, 23 Mass. App. Ct. 754 , 757 (1987) (even though court considered affidavits as well as pleadings on motion to dismiss, because they “add[ed] nothing material to the question of capacity to sue which [was] not contained in the complaint,” motion was properly decided under Mass. R. Civ. P. 12(b)(6)). The allegations in the affidavits of Robert Morris and Nancy Nelson add little or nothing to the allegations of the complaint and the documents referred to in the complaint. [Note 1]

Even treating the affidavits as adding additional facts, they may be considered because the court is really being asked to dismiss this action for lack of subject matter jurisdiction under Mass. R. Civ. P. 12(b)(1). The ZBA and the Housing Trust have challenged Friends’ standing as a “person aggrieved” under G.L. c. 40A, § 17. Standing is an issue of subject matter jurisdiction. Planning Bd. of Marshfield v. Zoning Bd. of Appeals of Pembroke, 427 Mass. 699 , 703 (1998); Ginther v. Commissioner of Ins., 427 Mass. 319 , 322 (1998). Because the question of subject matter jurisdiction is a prerequisite to judicial review, Monks v. Zoning Bd. of Appeals, 37 Mass. App. Ct. 685 , 687 (1994); R.D. Matthews Constr. Co. v. Tucker, 8 LCR 29 , 31 (2000), the court “may consider affidavits and other matters outside the face of the complaint.” Ginther, 427 Mass. at 322 n.6; see Watros v. Greater Lynn Mental Health & Retardation Ass’n, Inc., 421 Mass. 106 , 108-109 (1995); Quimby v. Zoning Bd. of Appeals of Arlington, 19 Mass. App. Ct. 1005 , 1006 n.2 (1985). The affidavits are an appropriate response to a motion for judgment on the pleadings for lack of standing, and may be considered by the court. The Motion to Strike is therefore denied.

Factual Background

Accepting, for the purposes of this motion, the well-pleaded facts in the Complaint and affidavits along with the documents referred to in the Complaint, the following facts appear:

The Minute Man National Historical Park (“Park”) is administered by the National Park Service (“NPS”), an agency of the United States Department of the Interior. Plaintiff Friends is a nonprofit 501(c)(3) corporation with a mission to protect the cultural and natural resources of the Park.

Friends and NPS are parties to a written agreement (the “Agreement”) that addresses the reciprocal benefits and obligations between them. [Note 2] The Agreement states that its purpose is to “identify[] the respective roles and responsibilities of both parties in implementing mutually agreed to activities for the benefit of” the Park and “to establish the policies, procedures and other items under which [Friends] will pursue its goals in support of the Park.” These goals, which NPS and Friends jointly agree to make a good faith effort to achieve, include expanding membership, increasing the ability of Friends to support Park programs, fostering creative partnerships, communicating the values and benefits of the Park to surrounding communities and constituencies, expanding the diversity of Park constituencies, finding common ground with key stakeholders, and jointly sponsoring public/member outreach events. In the Agreement, NPS agrees, among other things, to cooperate with Friends, review and approve proposed third-party agreements submitted by Friends, provide Friends with work space and computer access, consider applications from Friends for “Special Use Permits to authorize activities that are appropriate under NPS policy,” and to work with Friends as it establishes its priorities and creates programs. Friends agrees, among other things, to comply with applicable laws, regulations and policies, to obtain a Special Use Permit or other appropriate approval prior to undertaking any activity in the Park, to submit proposed third-party agreements for NPS review and approval, to use NPS property in accord with the conditions of the Agreement, and to engage in general fundraising in conformance with NPS orders. The Agreement provides that Friends “is not an agent or representative of the United States, Department of the Interior, or NPS.” Friends cannot represent that any of those parties endorses Friends’ work or services or that Friends’ work and services are superior to those performed by others, although the Park or NPS can recognize the contributions of Friends. The Agreement is terminable by either party upon 30 days’ notice.

Under the Agreement, Friends has undertaken various activities at the Park. It has raised money. It has supported educational programs. It has funded various rehabilitation projects at the Park, including an archeological investigation and restoration project at the site of Parker’s Revenge, where, on April 19, 1775, Lexington militia ambushed the King’s troops as they were retreating to Boston. This project is paid in part directly by Friends, as some money raised by Friends is administered by it with permission of the Superintendent of the Park, and not donated to the Park’s coffers.

The Property is owned by the Housing Trust and leased to Nupath under a 99-year lease. It is located within the jurisdictional boundaries of the Park and abuts Park land and Hanscom Air Force Base. The Property sits in close proximity to the site of Parker’s Revenge. On or about December 15, 2011, the ZBA granted the Special Permit to Nupath, allowing for the “reconstruction of a single family residence on a nonconforming lot under Sections 4.3, 4.4 and Section 20.2(c)” of the Town of Lincoln Zoning By-Law (“By-Law”) on the Property. Friends filed a Complaint alleging violations of G.L. c. 40A and the By-Law. [Note 3] Friends alleges that it is a “person aggrieved” by the Special Permit because the Special Permit “severely impairs the Friends’ interest in a historically and culturally significant location within the jurisdictional boundaries of the Park. By virtue of its mission and partnership with the National Park Service, the Friends have a particularized interest in ensuing that lands within the jurisdictional boundary of the Park are maintained in harmony with the Park’s cultural and historic values.”

According to the Affidavit of Nancy Nelson, the Superintendent of Minute Man National Historical Park, development of a modern, out of scale building, elevated above the existing grade will severely impair the restoration of the Parker’s Revenge site, “a key historical resource that the Park is mandated to protect.” Nelson also alleges that the Special Permit will impair the restoration of the cultural landscape and the ability of visitors to understand the historic scene. In his affidavit, Robert Morris, Friends’ President, claims that Friends must work to ensure that the use and development of the Property does not impair the integrity of Park resources, compromise the visitor experience, or undercut the Park’s mission. He claims that Friends’ interest in pursuing these goals is derived from its corporate purpose, the Agreement, and the long-term ongoing investments to preserve and improve the Park. He too concludes that an out of scale development conflicts with this obligation. He alleges that the Special Permit impairs resource protection efforts, would undercut Park programs, and would diminish the visitor experience.


Only a “person aggrieved” has standing to bring a claim pursuant to G.L. c. 40A, §17. To qualify as a “person aggrieved,” a person “must allege substantial injury as the direct result of the action complained of.” Ginther, 427 Mass. at 322. While the term “person aggrieved” should not be narrowly construed, it does mean that a person must suffer some infringement of his or her legal rights in order to acquire standing. Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115 , 117 (2011); Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996). To acquire standing, individual or corporate property owners must assert “a plausible claim of a definite violation of a private right, a private property interest, or private legal interest.” Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 27 (2006); Harvard Sq. Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491 , 492-493 (1989). Only those parties 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 . . . is intended to protect” have standing. Standerwick, 447 Mass. at 30. The injured interest asserted must be a private right and not a matter of mere public concern; plaintiffs must show that the injury they claim “is special and different from the injury the action will cause the community at large.” Butler v. City of Waltham, 63 Mass. App. Ct. 435 , 440 (2005).

Friends’ standing is challenged on the ground that it has no personal legal interest that can be injured by the Special Permit. “Not every person whose interests might conceivably be adversely affected is entitled to [judicial] review.” Ginther, 427 Mass. at 323; see Kenner, 459 Mass. at 122. Thus, for example, a “mere statement of corporate purpose which expresses a general civic interest in the enforcement of zoning laws” is not sufficient to confer standing. Harvard Sq. Defense Fund, 27 Mass. App. Ct. at 495-496. Rather, “only a limited class of individuals-those whose property interest will be affected-is given standing to challenge the board’s exercise of its discretion.” Id. at 492, quoting Green v. Bd. of Appeals of Provincetown, 26 Mass. App. Ct. 469 , 479 (1988), S.C., 404 Mass. 571 (1989). The property interest that can form the basis for standing is not limited to a fee ownership interest in neighboring real estate. It must, however, be some legal right to possess or control the affected real property, here the Park, taking into account the degree to which a person is the real party in interest and the extent of the interests of other persons in the property. Quimby, 19 Mass. App. Ct. at 1006.

Applying this standard, Friends’ argument that it has an interest affected by the Special Permit sufficient to make it a “person aggrieved” falls short. Friends cannot and does not claim that it has a fee ownership interest in the Park. Rather, it sets forth three purported property or legal interests in the Park that it claims are harmed by the Special Permit: first, the interest derived from Friends’ corporate purpose; second, the interest derived from the Agreement; and third, the interest derived from its long-term, ongoing direct investments to preserve and improve the Park, particularly its direct investment in the Parker’s Revenge site dig. None of these is an ownership, possessory, or legal interest in the Park sufficient to confer standing.

The first claimed interest, that derived from “Friends’ mission and corporate purpose,” is completely foreclosed as a basis for standing by the Harvard Square decision. Harvard Sq. Defense Fund, 27 Mass. App. Ct. at 495-496. In Harvard Square, the Appeals Court found that the incorporated citizens association, Harvard Square Defense Fund, Inc., could only have standing if it established “some harm to a corporate legal right.” Id. at 495. The Court held that “[a] mere statement of corporate purpose which expresses a general civic interest…in the preservation of Harvard Square, is not enough to confer standing.” Id. at 495-496. Here, Friends’ corporate purpose is “to protect the cultural and natural resources of the Park.” This civic interest in the preservation of the Park’s resources is not sufficient to confer standing. Id.; see Chongris v. Board of Appeals of Andover, 17 Mass. App. Ct. 999 , 999 (1984) (objective of plaintiff Friends of Shawsheen Village Association to “promote the preservation, restoration, and advancement, of Shawsheen Village” is “a statement of organizational purpose [that] cannot clothe a civic organization with aggrieved person status”).

Friends also claims that it derives a legal or property interest from the Agreement between Friends and NPS. Friends’ interest in the Agreement is insufficient to confer standing. The Agreement does not grant any property, possessory, or legal rights in the Park to Friends. It is an executory contract that sets forth the various activities that each party has the right or obligation to perform. The Agreement does not give Friends any control over any part of the Park; it expressly provides that NPS maintains control over the Park. Friends is required to obtain approval and permits for its activities, and the Agreement makes clear that Friends is not an agent of NPS. At most, the Agreement obligates NPS to provide office space to Friends and support its work, and gives Friends the right to raise money and undertake activities with NPS’s permission. This is not the kind of private legal or property interest that falls within the scope of interests protected by the By-Law and that can be harmed by the Special Permit. Quimby, 19 Mass. App. Ct. at 1006.

Finally, Friends claims that it has standing based on its direct investments in the Park, especially its support of the archeological dig at the Parker’s Revenge site. As Friends points out, one of the purposes set forth in the By-Law is “to preserve historic sites.” By-Law § 1. This statement of purpose, on its own, is insufficient to confer standing on Friends. Friends must show an interest in the dig that could fall within the protection of this purpose. Sweenie v. A.L. Prime Energy Consultants, 451 Mass. 539 , 544-545 (2008). This it cannot do. Drawing all inferences in Friends’ favor and taking into account the Morris and Nelson affidavits, it is undisputed that Friends is partially funding the dig. It is not conducting the dig. It has no property interest in the dig. It has no right to possess or control the area of the Park where the dig is being conducted. NPS maintains full control of the Park, including the area of the dig. As a nonowner with no control or possession of the dig, the Friends does not possess a “cognizable interest” sufficient to establish that it is aggrieved. Id. Moreover, Friends’ direct investments in the Park do not create an interest distinct from the general community. Even though Friends may use the money directly instead of donating it to the Park’s coffers for the Park to determine its use, preserving those investments is not an individualized interest. The money received by Friends comes from donations from the general public, and pursuant to the Agreement Friends still needs the approval of NPS before it can undertake substantial projects.

Friends has failed to assert enough well-pleaded facts, either in the pleadings or the affidavits, to demonstrate that it has a unique, individualized property, possessory, or legal interest in the Park that will be directly and substantially harmed by the Special Permit. Friends, therefore, is not a “person aggrieved” pursuant to G.L. c. 40A, §17, and the court lacks subject matter jurisdiction to reach the merits of the case.


For the foregoing reasons, the Motion to Strike is DENIED. The Motion for Judgment on the Pleadings is ALLOWED. Judgment shall issue accordingly.


By the Court (Foster, J.)


[Note 1] Nelson’s reference in her affidavit to the “Compatibility Guidelines” is irrelevant to the issues of standing under G.L. c. 40A, § 17.

[Note 2] The Agreement is explicitly referenced and relied upon in the Complaint and attached to the Motion for Judgment on the Pleadings. See Shuel, 16 LCR at 329.

[Note 3] At the same time, the United States of America filed complaints in this court and in the United States District Court for the District of Massachusetts challenging the Special Permit.