By virtue of a complaint filed on March 27, 2009, plaintiff HRPT Medical Buildings Realty Trust (plaintiff / HRPT) seeks to annul a decision of the Boston Zoning Commission (Commission). HRPT is a Massachusetts real estate nominee trust that owns the property at 109 Brookline Avenue, Boston, Massachusetts (locus). The locus is near the site of the proposed Fenway Center Project. [Note 1] The Commission itself is a quasi-legislative authority designated by the Boston Zoning Enabling Act to adopt and amend zoning regulations within the city of Boston. [Note 2]
On or about September 24, 2006, the General Court enacted St. 2006, c. 123, [Note 3] § 2A, the so-called Economic Stimulus Act which provided funding to the Executive Office of Transportation [Note 4] for the renovation of the Yawkey MBTA Station and for the enhancement of transportation access to the resulting New Yawkey Station. [Note 5]
On February 25, 2009, the Commission voted to approve and adopt: Text Amendment No. 356 which included amendments to Article 61 of the Boston Zoning Code ; Map Amendment No. 503 which included amendments to Map 1, Boston Proper, Map 1M, Audubon Circle Neighborhood District, and Map 1Q Fenway Neighborhood district to create the overlay district designation for Planned Development Area (PDA) No. 74; and the PDA Plan for PDA Development Plan No. 74 (PDA Plan No. 74) [Note 6] (Decision). [Note 7] The Decision was signed by Mayor Menino and became effective on February 26, 2009.
There is no suggestion within the summary judgment record that any of the plaintiffs property at issue herein, lies within the Planned Development Area. [Note 8]
Plaintiff seeks a determination that the Commissions Decision is unlawful, improper, and invalid as applied to the 109 Brookline Avenue Property .
It is this courts view that the Commissions Decision must be sustained.
By motion for leave to intervene filed on June 15, 2010, and allowed thereafter, MK Parcel 7 Development LLC (MK Parcel 7/ defendant)) was permitted to intervene as a party defendant. See Mass. R Civ. P 24 (providing for party intervention as a matter of right or by permission); Massachusetts Federation of Teachers v. School Committee of Chelsea, 409 Mass. 203 (1991). Defendant MK Parcel 7 filed an answer to HRPT's complaint on June 25, 2010.
On September 30, 2010, dispositive motions were timely filed by both sides. Defendants filed a joint motion for summary judgment, together with a statement of undisputed material facts in support of the motion, a four-volume appendix, exhibits, and authenticating affidavits. HRPT filed a motion for partial summary judgment on its G.L. c. 240 §14A claim, along with a memorandum of law in support of the motion, a statement of undisputed material facts and an authenticating affidavit.
On October 29, 2010 MK Parcel 7 submitted its opposition, together with a response to the plaintiffs statement of undisputed material facts. On November 5, 2010 HRPT filed a memorandum in opposition to the defendants' joint motion, together with a response to defendants' statement of material facts. On November 22, 2010 HRPT filed a reply memorandum in further support of its motion for partial summary judgment with an authenticating affidavit, while the defendants filed a response in further support of their motion for summary judgment.
Oral arguments on the competing motions for summary judgment were heard by this court on January 20, 2011. At the hearing, HRPT introduced a motion to view the property. The motion was ultimately granted, although this court hastens to note that any familiarity gleaned from the general view of the neighborhood was deemed to be of no moment in rendering the instant decision on the law.
The exhibits are extensive, consisting of six volumes in the aggregate, together with a transcript of the hearing on summary judgment filed with the court on March 1, 2011.
The Complaint commences with the following recitation:
This is an action under Section 10A [Note 9] of the Boston Zoning Enabling Act, St.1956, c. 665, as amended, and M.G.L.A. c. 240, § 14A challenging the Boston Zoning Commissions vote on February 25, 2009 to approve and adopt: [Note 10] Text Amendment No[.] 356 which included amendments to Article 61 of the Boston Zoning Code (Code); Map Amendment No. 503 which included amendments to Map 1Q Fenway Neighborhood district, and to create the overlay district designation for Planned Development Area (PDA) No. 74; and the PDA Plan for PDA No. 74 . The PDA Plan and accompanying amendments to the Code were specifically designed to enable construction of a mixed use development for the Massachusetts Turnpike Parcel 7 Air Rights Project known as Fenway Center (the Project) in a manner that would not otherwise be allowed in accordance with the provisions of the underlying zoning .
The Project, proposed by MK Parcel 7 Development LLC (the Proponent) Calls for the construction of four buildings and two parking garages that would include 1,099,000 square feet of retail, residential, office and parking use along with improved roadway in the area, and a connection to a New Yawkey Commuter Rail Station . [Note 11] The Boston Redevelopment Authority (BRA) and the Boston Zoning Commission (Commission) approved the Project because it ostensibly constituted a development with integral multi-modal transportation benefits centered on New Yawkey Station and new roadways that would connect bus service to commuter rail service and would improve traffic flow.
These purported transportation benefits are illusory and cannot be achieved without the construction of roads and related improvements on private property owned and controlled by Plaintiff . As a result, the Project has a direct, material adverse impact on Plaintiffs ability to utilize and develop its property. The Decision must be annulled because it exceeds the authority of the Commission and is invalid, unreasonable, factually and legally unsupportable, and otherwise not in accordance with law. In addition, the Commissions actions must be set aside pursuant to M.G.L.A. c. 240, § 14A because it improperly restricts HRPTs present and future use of its property. (emphasis added)
In its argument on summary judgment, plaintiffs counsel makes the following observation:
So its not about the PDAs effect on the property [locus], but what the PDA causes the zoning to do to HRPTs property. [Note 12] (emphasis added)
Inasmuch as the plaintiffs concerns relate almost exclusively to the potential construction of the MaitlandOverland Connection and the New Yawkey Way Extension, [Note 13] it is especially noteworthy that the introductory language of the PDA itself, as approved as part of PDA No. 74, provides in explicit terms as follows:
Finally, certain areas immediately south of the Site will be improved by the city of Boston or the Proponent with public roadways providing access to and from the Site to a newly renovated Yawkey Commuter Rail Station but not included in this Plan. [Note 14] (emphasis added)
The roadways at issue are expressly referenced in PDA Plan No. 74 as new roadway improvements to be funded by the Commonwealth pursuant to the Economic Stimulus Act. [Note 15] One such roadway improvement would connect Overland Street and Maitland Street; this is the so-called Overland-Maitland Connection which would effectively provide a throughway from Beacon Street to Brookline Avenue. [Note 16] The other improvement, would consist of a new roadway designated as the Yawkey Way Extension.
In paragraph 8 of its complaint, the plaintiff readily acknowledges that:
[t]he Project is intended as a transit oriented development, [Note 17] the benefits of which relate to the construction of the New Yawkey Station, [Note 18] a new, full-service commuter rail top and bus terminal, connected to the proposed Fenway Center Project. [Note 19] The Massachusetts legislature has already approved funding for the New Yawkey Station under Chapter 123 of the Acts of 2006 (the2006 Economic Investment Act). Proponent [MK Parcel 7] has been designated by the MBTA to design and construct the New Yawkey Station. The 2006 Economic Investments Act also included substantial funding for other aspects of the Project including the proposed roadway connections. [Note 20] (emphasis added)
Not insignificantly, PDA Plan No. 74 not only excludes the roadway improvements by its own terms but, as well, makes no mention of the roadways in relevant definitional sections. Thus for purposes of PDA No. 74, the Site is defined as follows:
The Site comprises air rights above the Turnpike and railroad tracks and adjacent land, measuring approximately 4.5 acres in the aggregate. The MTA [Massachusetts Turnpike authority] owns all the air rights as well as some terra firma extending southwesterly from the Turnpike. The remainder of the site consists of the CSX Parcels [Note 21] as described above.
The Project is defined in the following manner:
The Project will include four major new buildings, ranging from seven (7) to twenty-seven (27) stories in height . The Project also includes approximately 1,290 parking spaces, of which approximately 700 will be in an above-ground, shared use garage and approximately 590 will be in a private underground garage .
G.L. c. 240, § 14A
As previously observed, the plaintiff has asserted a claim pursuant to G.L. c. 240, § 14A. That Section provides in pertinent part as follows:
The owner of a freehold estate in possession of land may bring a petition in the land court against a city or town [Note 22] wherein such land is situated for determination as to the validity of a municipal ordinance which purports to restrict or limit the present or future use, enjoyment, improvement or development of such land or any part thereof, or of present or future structures thereon, or for determination of the extent to which any such municipal ordinance affects a proposed use, enjoyment, improvement or development of such land by the erection, alteration or repair of structures thereon or otherwise as set forth in such petition. (emphasis added)
In the case of Banquer Realty Co., Inc. v. Acting Bldg. Commissioner of Boston, 389 Mass. 565 (1983), the Supreme Judicial Court distilled this statutory language to its essence, as follows:
The language of G. L. c. 240, § 14A, clearly grants the Land Court jurisdiction over two kinds of cases, validity and extent cases. (emphasis supplied)
As to the substance of § 14A, it should be noted that a validity case, perhaps not surprisingly, asks to what degree, if any, a local zoning restriction purportedly applicable to a defined locus, may be deemed invalid or illegal. A resolution to such an inquiry calls primarily for a legal determination by the court. See in this regard the case of Sturges v. Chilmark, 380 Mass. 246 (1980), (questioning the validity of certain age and residency limitations in the bylaw). [Note 23]
Identifying the nature and scope of an extent case is a somewhat more challenging exercise. Section 14A permits one to seek a determination as to the extent to which a local zoning ordinance affects a proposed use of land. Phrased in alternate terms, the question may be asked whether the local zoning regulation has a direct effect upon [Note 24] or is applicable to a particular site. [Note 25] In Banquer, 389 Mass. at 570, the court spoke of validity and interpretation issues under § 14A. In so doing it was likely mindful of the concluding language § 14A: The court may make binding determinations of right interpreting ordinances, by-laws or regulations .
The following examples share a common thread which serves to illustrate the manner in which the extent or applicability language of § 14A has been applied in somewhat disparate situations. Thus. see for example, Hansen v. Norwood, 61 Mass. App. Ct. 292 (2004) (whether the garaging of ambulances is permitted under a bylaw provision that allows a taxi office or stand); Mass. Broken Stone v. Weston, 44 Mass. App. Ct. 748 (1998), (whether a 1988 bylaw applied to the locus by reason of a zoning freeze under G. L. c. 40A, § 6); Mahoney v. Chelsea, 20 Mass. App. Ct. 91 (1985), (whether a proposed salt importing operation constitutes a commercial dock under the local zoning ordinance); Banquer Realty v. Acting Building Commr of Boston, 389 Mass. 565 (1983), (whether a concrete batching plant constitutes an as of right use under the Boston Zoning Code); Barron Chevrolet, Inc. v. Danvers, 419 Mass. 404 , 406 (2002), (whether a special permit, modification of variance, or none of them, was necessary to alter commercial signage.)
In Whitinsville Retirement Society, 394 Mass. 757 (1985), the Supreme Judicial Court described the purpose of § 14A in the following terms:
The evil to be remedied [by § 14A] is a situation where someone may be forced to invest in land before being able to find out whether there are restrictions... No such situation exists here. Rather, the plaintiff is seeking to sidestep an appeal to the Northbridge board of appeal .General Laws c. 185, § 1 (j ½), [Note 26] may not be used to avoid the normal appellate route required in zoning disputes. 394 Mass. at 763.
In Addison-Wesley Publishing Co. v. Reading, 354 Mass. 181 (1968) the Court spoke of the plain purpose underlying § 14A. The owner who may be contemplating a large investment on his land is provided [through c. 240, § 14A] with a thoroughly sensible means of ensuring that he is safe in going ahead. Id. at p. 185. In Clark & Clark Hotel Corp. v. Falmouth, 20 Mass. App. Ct. 206 , 211 (1985), the Court, in discussing Banquer Realty Co. v. Acting Bldg. Commr of Boston, 389 Mass. 565 , noted that the Banquer plaintiffs had entered into a contract for the construction and lease of a concrete plant in reliance on the approval of the building inspector. Plaintiffs later learned that there might be certain restrictions. The Court concluded that [the plaintiffs] were thus in at least as precarious a position as the investor § 14A was designed to protect. [Note 27]
In the instant matter, the situation is not at all comparable to those cases in which § 14A has been properly invoked. Here, the plaintiffs are clearly not in the position of an investor, nor is it my view that they are in as precarious a position as an investor. There is no indication on the summary judgment record moreover, that any substantive investment is being contemplated by the plaintiff at the locus.
Rather, the present action is predicated, almost entirely, upon plaintiffs concern with the possible construction of roadways over property which it owns. Once again, these roadways were excluded, explicitly so, from the relevant PDA Plan approved by the Boston Zoning Commission.
In its motion for partial summary judgment, HRPT argues for the disposition of a claim raised for the first time in that motion under G.L. c. 240, § 14A. Thus, in its Complaint, HRPT asks that the Commissions Decision be annulled or that it be deemed invalid as against its property. [Note 28] However, in its motion, HRPT seeks an advisory opinion under G.L. c. 240, § 14A, concerning the extent to which the Commissions Decision impacts the zoning of its property. [Note 29] As to the asserted invalidity of the said Decision, the Plaintiff contends that there remain disputed issues of material fact and, therefore, this court may resolve this issue only upon a full trial on the merits.
For their part, in their joint motion for summary judgment, the Commission and MK Parcel 7 posit, first, that § 10A of the Boston Zoning Enabling Act provides the exclusive means by which an aggrieved party may invalidate the Commissions Decision. Consequently, Defendants argue that the Plaintiff may not invoke the provisions of G. L. c. 240, § 14A [Note 30] thereby avoiding, for example, the requirements on standing under §10A, which, the defendants contend, HRPT fails to meet in any event.
Moreover, considering the volume of material submitted as evidence concerning the public benefit to be derived from the Fenway Center Project, HRPT must, according to the standard set forth in Kourvoucallis v. General Motors Corp., 410 Mass. 706 , 711-712 (1991), come forward with evidence creating a triable issue as to the validity of the zoning change, i.e., some evidence that would tend to show that Commissions Decision to amend the Code was not fairly debatable.
Summary Judgment Standard
Summary judgment is to be granted when pleadings, depositions, answers to interrogatories, and responses to requests for admission together with affidavits show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56(c). The moving party bears the burden of proving the absence of controversy over material facts and that he or she is deserving of a judgment as a matter of law. See Highlands Ins. Co. v. Aerovox Inc., 424 Mass. 226 , 232 (1997). Accordingly, when acting upon motions for summary judgment, this court is to determine "whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991).
The burden on the moving party may be discharged by showing that there is an absence of evidence to support the non-moving partys case. Kourouvacilis, 410 Mass. at 711, citing Celotex Corp., 477 U.S. at 322. Thus, regardless of whether the moving party accompanies its summary judgment motion with affidavits, the motion may, and should, be granted so long as whatever is before the . . . court demonstrates that the standard for the entry of summary judgment is satisfied, Kourouvacilis, 410 Mass. at 713, quoting Celotex Corp., 477 U.S. at 323-324; and [o]ne of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and we think it should be interpreted in a way that allows it to accomplish this purposes. Ibid.
Though affording the non-movant all permissible inferences, this court is mindful that "[t]he 'most favorable' light does not exclude adverse facts," Poon v. Massachusetts Inst. of Technology., 74 Mass. App. Ct. 185 , 194 (2009). Moreover, this court "need not consider . . . inference[s] derived from . . . unsupported allegation[s]." Demoulas v. Demoulas, 432 Mass. 43 , 59 (2000). Thus, the right of a party facing summary decision to have the facts viewed in a favorable light, . . . does not entitle that party to a favorable decision and reliance upon mere bald conclusions is an inadequate means of defeating the motion. Catlin v. Board of Registration of Architects, 414 Mass. 1 , 7 (1992). Once the moving party has met its burden, to withstand summary judgment the non-movant must allege specific facts showing that there is a genuine issue of material fact. Baldwin v. Mortimer, 402 Mass. 142 , 143-144 (1988), citing Godbout v. Cousens, 396 Mass. 254 , 261 (1985). In determining whether a factual dispute is genuine, this court must determine whether the evidence is such that a reasonable [factfinder] could return a verdict for the nonmoving party. Steffen v. Viking, 441 F.Supp.2d 245, 250 (2006), citing, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In applying the foregoing standard, this court is cognizant that "[a] material fact is one that is significant or essential to the issue or matter at hand." McMann v. McGowan, 71 Mass. App. Ct. 513 , 520 (2008).
G. L. c. 240, § 14A and St. 1956, c. 665, § 10A
As set out in its complaint, HRPT brings the present action pursuant to distinct statutory schemes: G. L. c. 240, § 14A, and St.1956, c. 665, § 10A. Under both provisions, plaintiff seeks the annulment or invalidation of the Commissions decision.
In the course of oral argument, plaintiff offered the following:
[U]nder Chapter 240, Section 14A, youll recall it refers to the validity or extent of a bylaw or zoning ordinance. And these issues [Note 31] go to the extent prong. With respect to the validity, we ask that if you find that these adverse impacts on HRPTs property exist, that the PDA be declared invalid because of its arbitrary and discriminatory impact on HRPT . But of course, Section 10A, we also seek to invalidate the PDA under that provision as well. [Note 32] (emphasis added)
In their motion for summary judgment, the defendants advanced the threshold issue whether a plaintiff may bring such an action under two distinct statutes as HRPT endeavors to do here. It is this courts view that, in the present circumstances, St. 1956, c. 665, § 10A precludes the invocation of G. L. c. 240, § 14A at least as to the validity prong thereof. Section 10A of the Boston Zoning Enabling Act, as inserted by St. 1987, c. 371, § 2, provides inter alia as follows:
Any person aggrieved by a decision of the zoning commission approving a zoning map amendment or a zoning regulation or amendment thereof, or by any procedural defect therein, or any municipal board or officer, may appeal such decision to . . . the land court . . .
Critically, § 10A expressly provides that
[t]he foregoing remedy shall be exclusive; but the parties shall have all rights of appeal and exception as in other equity cases.
It is this courts opinion that, reading § 10A and § 14A in tandem, the purpose of the exclusivity provision in §10A is to ensure that plaintiffs, such as HRPT are precluded from invoking G. L. c. 240, § 14A, so, for example, as to avoid the far more rigorous standing requirements of § 10A. See Hanna v. Framingham, 60 Mass. App. Ct. 420 , 423-424, n. 7 (2004). [Note 33]
As a consequence, this court construes § 10A so as to preclude a § 14A action which seeks effectively to annul or otherwise invalidate a decision of the Boston Zoning Commission as was sought by the plaintiff in its Complaint.
Moreover, insofar as the plaintiff seeks a determination under § 10A of the zoning ordinances as to the validity of the Commission decision, HRPT must demonstrate that it possesses the requisite standing to maintain a §10A challenge. See Romano, supra. Accord Sherrill House, Inc. v. Board of Appeal of Boston, 19 Mass. App. Ct. 274 , 275 (1985) (applying § 17 standard to § 11 of Boston Zoning Enabling Act).
Standing under St. 1956, c. 665, § 10A, as amended.
Under § 10A only a person aggrieved by a decision of the Commission may posses the standing to seek annulment of that decision. To establish such standing, a person aggrieved . . . 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), quoting Harvard Sq. Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491 , 493 (1989) (internal quotations omitted).
Although the plaintiff bears the burden of proving aggrievement, because [s]tanding is a gateway through which one must pass en route to an inquiry on the merits . . . , a plaintiff is not required to prove by a preponderance of the evidence that [its] claims of particularized or special injury are true. Butler v. Waltham, 63 Mass. App. Ct. 435 , 441 (2005). Instead, a plaintiff must come forward with credible evidence to substantiate [its] allegations. Marashlian, 421 Mass. at 721. To qualify as credible evidence, a proffer must be of the type on which a reasonable person could rely to conclude that the claimed injury likely will flow from the board's decision. Butler, 63 Mass. App. Ct. at 441.
Here, the plaintiffs claimed injuries are problematical, in no small measure because of their highly speculative nature owing to the fact that the roadway extensions do not yet exist. Moreover, the manner in which such extensions would likely come into being, has not been convincingly addressed by the plaintiff. Lastly, the plaintiff has simply failed to demonstrate that the claimed injuries will flow from the Commissions Decision. [Note 34] Even if, for the sake of argument, there were such a showing by the plaintiff, this court concludes, in any event, that the roadway extensions constitute a project distinct and apart from that approved by the Commission in its Decision. As stated in Kane v. Board of Appeals of Medford, the essential and dominating design of . . . [the] zoning law . . . is to stabilize property uses in . . . specified districts in the interests of the public health and safety and the general welfare . . . 273 Mass. 97 , 104 (1930). [Note 35] Accord G.L. c. 40A, § 3 (defining zoning as ordinances and by-laws adopted by cities and towns to regulate the use of land, buildings and structures to the full extent of the independent constitutional powers of cities and towns to protect the health, safety and general welfare of their present and future inhabitants.); Circle Lounge & Grille, Inc. v. Board of Appeal of Boston, 324 Mass. 427 , 431 (1949) ([t]he primary purpose of zoning with reference to land use is preservation in the public interest of certain neighborhoods against uses which are believed to be deleterious to such neighborhoods.). Though the potential subject of zoning regulation may be broad, it is not limitless.
HRPT has pointed to no authority, and this court is unaware of any, that holds that zoning somehow ushers into existence a public way, one that may ultimately require a acquisition through eminent domain or otherwise. While the existence of an earlier plan [Note 36] to extend the public ways at issue may well have been contemplated by the Commission or deemed to be of relevance, this court rejects the notion that the Decision itself served to clothe any such extensions with official approval by the Boston Zoning Commission. Accordingly, the causal nexus between the challenged Decision and any potential harm to HRPT occasioned by the roadway extensions is far too attenuated to confer the requisite standing upon the plaintiff to challenge the Commissions Decision. [Note 37]
The Extent Claim under § 14A
Through its motion for partial summary judgment, [Note 38] HRPT asks this court to provide an advisory opinion with respect to the impact upon its property occasioned by the PDA Plan No. 74. Purely as a threshold matter, this court questions its ability to provide an advisory, even if it were inclined to do so. Such a judgment would likely violate the principle inherent in Mass. R. Civ. P. 54 that a judgment correspond to the relief sought in the complaint. See Perini Corp. v. Building Inspector of N. Andover, 7 Mass. App. Ct. 72 , 79 n. 12 (1979). HRPT never sought in its complaint a declaration from this court concerning the effect of the PDA Plan No. 74 upon its property. More importantly, however, this court is concerned about the legal predicate for its entertaining HRPTs extent claim.
Apart from actions initiated pursuant to § 14A seeking invalidation of a zoning provision, either as a facially impermissible exertion of a municipalitys zoning authority, or as applied to a particular property, see Kaplan, 330 Mass. at 381, § 14A also affords a property owner the opportunity to seek an advisory opinion from this court concerning the extent to which a zoning provision might impact the use of its property. As noted supra, however, such a property owner must demonstrate in the first instance that the subject zoning provision directly and adversely affects the permitted use of his land. Hanna, 60 Mass. App. Ct. at 422, quoting Mastriani v. Building Inspector of Monson, 19 Mass. App. Ct. 989 , 990 (1985). On the present record, this court is, at very least, left to speculate as to the manner in which the challenged Decision affects the use of plaintiffs property, if at all.
In this regard, the court accepts, arguendo, the proposition that should the roadway extensions be constructed as contemplated in the plans submitted to the Commission, then HRPT might possibly suffer adverse consequences. The difficulty for HRPT, however, lies in the fact that the Decision does not serve, in and of itself, to sanction the existence of the planned way. The causal relationship between the eventual existence of the roadway as planned, and the PDA Amendment, is simply too attenuated to lay at the door of the Commission.
Furthermore, the PDA Amendment with its corresponding amendment of Bostons official zoning map does not alter the zoning made applicable to HRPTs property, inasmuch as that property does not sit, facially upon this record, in the territory to which the amendment relates. This court, therefore, cannot, in any event, issue the declaration requested by the plaintiff.
As previously observed, [Note 39] the Maitland-Overland Connection and the Yawkey Way Extension, are, in crucial respects, wholly parallel, though not completely unrelated, projects.
This conclusion gains support from the deposition testimony of City Planner, Kairos Shen (Shen). According to Shen, the roadways have been under planning [Note 40] for over ten years, i.e. long before the MK Parcel 7 PDA was proposed. He testified, as well, in largely uncontroverted fashion, [Note 41] as follows:
[S]ome of the benefits such as the roadway connection that the City and State were pursuing before this project showed up, and we will continue to pursue this [the roadway construction] whether this project still exists or not. Its independent. [Note 42] Let me just say again that these projects related to roadways have been in planning for over a decade, and in  received its own separate funding. [Note 43] (emphasis added)
At deposition, Mr. Shen was asked from a planning prospective, how important was the proposal to redevelop Yawkey Station to your recommended approval of this Fenway Center Project? He responded as follows:
[A]pproval of the Yawkey Stadium and the planning related to that was already well underway and was being vetted through the City. So I think that we saw it as building on the improvements that the State would be making. [Note 44]
We were making sure that the buildings [called for in the PDA] supported the alignment of the streets which is the extension of Yawkey Way and the connection between Overland and Maitland Streets, in order to make sure that the project does not in any way contradict those plans that we put in and block the potential access to the subways, the new train station [Note 45] Ive said that the one very specific one here [public goal] was to make sure that the development was integrated and related well to the public transit station and the streets that were planned . [E]arlier versions of the blocks of the Fenway Center actually interrupted some view corridors that were related to the streets that we were planning, and so we adjusted the massing of the location of the towers and the entryways so that it would enhance pedestrian environment [Note 46]
[T]his project is building on the benefits and the access to a public transit station, the same way that the City approved and argued for the South Station tower being over the station, South Station, because thats where people can come in and out of the commuter rail. [Note 47]
[T]he roadways [at issue herein] were laid out and funded by the public independent of specific development of specific development of Parcel 7 and any potential development [Note 48] (emphasis added)
[I]f the street is laid out and funded, why wouldnt you use that street? Once Overland Street and Maitland Street is completed, with or without this development I mean those streets have been planned for many years. They have been funded. [Note 49] (emphasis added)
So I believe there is strongat least a decade long of planning that would substantiate the location of these streets [Note 50]
Some of these benefits as in the case of Yawkey Way Extension, the Maitland and Overland Street connections are and will be completed irrespective of whether this project gets done. [Note 51] (emphasis added)
Standard of Review
The standard of review to be applied, upon a de novo record, to the decision of the Commission, was set forth in Kimberk v. Boston Zoning Commission, 7 LCR 214 (1999) (Green, J.). In Kimberk, the court observed as follows concerning the appropriate standard of review:
In a claim of spot zoning, as in any challenge to the validity of an amendment to a local zoning provision, [e]very presumption is to be made in favor of the amendment and its validity will be upheld unless it is shown beyond reasonable doubt that it conflicts with the enabling act. Vagts v. Superintendent & Inspector of Buildings of Cambridge, 355 Mass. 711 , 713 (1969), quoting Lanner v. Board of Appeals of Tewksbury, 348 Mass. 220 , 228 (1964). Though reaffirming the heavy burden borne by a party challenging a zoning amendment, the Supreme Judicial Court recently commented that [t]he characterization of a challenger's burden as one of proof beyond reasonable doubt may not be instructive. A better characterization is that the challenger must prove by a preponderance of the evidence that the zoning regulation is arbitrary and unreasonable, or substantially unrelated to the public health, safety, morals, or general welfare. Johnson v. Edgartown, 425 Mass. 117 , 121 (1997). Put another way, the party challenging the amendment has the burden of proving facts which compel a conclusion that the question whether the amendment falls within the enabling statute is not even fairly debatable. Crall v. Leominster, 362 Mass. 95 , 103 (1972). If the reasonableness of a zoning regulation is fairly debatable, the judgment of the local legislative body (here the Boston zoning commission) should be sustained and the reviewing court should not substitute its own judgment. National Amusements, Inc. v. Boston, 29 Mass. App. Ct. 305 , 309 (1990). (emphasis added) Id. at 217. [Note 52]
Since Kimberk, the appellate courts of the Commonwealth have reaffirmed this highly-deferential standard of review as applied to zoning amendments on numerous occasions. See, e.g., DiRico v. Kingston, 458 Mass. 83 , 95-96 (2010); Durand v. IDC Bellingham, LLC, 440 Mass. 45 , 50-52 (2003); Andrews v. Amherst, 68 Mass. App. Ct. 365 , 367-369 (2007); Hanna v. Framingham, 60 Mass. App. Ct. 420 , 426 (2004).
In the present context, while not entirely clear, HRPT seems to suggest that the PDA Amendment here at issue constitutes impermissible spot zoning. [Note 53] The Court in Kimberk had equally instructive comments concerning a like claim:
Spot zoning occurs when there is a singling out of one lot for different treatment from that accorded to similar surrounding land 'indistinguishable from it in character, all for the economic benefit of the owner of that lot. Whittemore v. Building Inspector of Falmouth, 313 Mass. 248 ,249 (1943) See Board of Appeals of Hanover v. Housing Appeals Comm., 363 Mass. 339 , 361 (1973). Such zoning 'constitutes a denial of equal protection under the law guaranteed by the State and Federal Constitutions,' id. at 362 n. 15, and violates the 'uniformity requirement of c. 40A, § 4 . . . Rando v. Town of North Attleborough, 44 Mass. App. Ct. 603 , 606 (1998). It is no objection to a legislative solution of a public problem that it will incidentally lead to private profit or advantage. Lanner v. Board of Appeal of Tewksbury, 348 Mass. 220 , 229-230 (1964). Applied in the context of a site- specific zoning amendment incident to a large project in the urban center of Boston, Judge Sullivan observed that
The [spot zoning] charge might equally be levied at any of the planned development areas designated pursuant to the relevant provisions of the Boston Zoning Code since areas of an acre or more may be treated differently by its provisions. In any event, the history of the Massachusetts case law is that the size of the zone is a local concern as to which the court defers to the local legislative bodies. The element on which the validity for such treatment turns is not whether a parcel has been singled out for less restrictive treatment than that of surrounding land of a similar character, but whether this has been done for the economic benefit of the owner of the lot, not to serve the public welfare.
Manning v. Boston Redevelopment Authority, land court misc. no. 117622, slip opinion. at 31-32 (May 6, 1986) (Sullivan, C.J.), affirmed on other grounds, 400 Mass. 444 (1987).
Here, as in Kimberk and Manning, the plaintiff asserts that the challenged zoning change will economically benefit particular private interests. Nevertheless, HRPT has utterly failed to refute the notion that, while private interests may well benefit from the Fenway Center Project, so too will the general public in a most significant fashion. The City and MK PARCEL 7 have provided copious documentation on the summary judgment record evidencing this fact [Note 54] and, under the applicable summary judgment standard, should HRPT fail to proffer evidence sufficient to render a finding that the benefit to the public is not even fairly debatable, Boston and MK PARCEL 7 are entitled to the grant of summary judgment in their favor. [Note 55]
At best, it may be argued that HRPT has offered evidence of purported harm to itself, and a corresponding benefit to private interests in the event that the Fenway Center is constructed. Such evidence is, however, irrelevant to the ultimate question concerning the validity of the PDA Amendment. Harm to ones own private interest in no way equates with public harm. And private benefit does not does not exclude community benefit. In short, HRPTs claims in this regard, suffer from a failure of proof. Moreover, predicated upon the materials submitted by the defendants, unmet by relevant evidence offered by the plaintiff, HRPT can have no expectation of proving its case at trial. See Kourouvacilis, 410 Mass. at 716.
Having considered the parties submissions, as well as their arguments at hearing, this court concludes as follows:
(1) The extensive public benefit to be derived from the Project at issue as well as from the construction of the Yawkey Commuter Rail Station and its attendant access ways, is clear on the summary judgment record.
(2) The plaintiff may not invoke the validity prong of G.L. c. 240, § 14A in an effort to seek to invalidate the Commissions Decision. Rather, St. 1956, c. 665, § 10A, as amended, provides the exclusive means by which to invalidate the Commissions Decision.
(3) The plaintiff HRPT has failed to demonstrate pursuant to § 10A, that any aggrievement it might suffer flows from the Decision rendered by the Commission;
(4) The proposed Maitland-Overland Connection as well as the New Yawkey Way Extension are independent of and are explicitly excluded from the Decision here at issue. While that Decision may contemplate the eventual construction of the said roadways, it does not purport to approve or to otherwise validate same.
(5) The plaintiff has been unable to meet the effect prong of G.L. c. 240, § 14A; that is to say it has not effectively demonstrated that the Decision has a direct effect upon, or is applicable to locus.
(6) The plaintiff has been unable to demonstrate the existence of impermissible spot zoning in the case at bar. .
(7) Notwithstanding the failure to demonstrate cognizable aggrievement, even if a cause of action could be said, arguendo, to lie under the validity prong of G. L. c. 240, § 14A, [Note 56] HRPTs case on the merits suffers from a failure of proof given the deferential standard of review to be applied to amendments of the sort here at issue.
In view of the foregoing, it is hereby
ORDERED that the plaintiffs Motion for Partial Summary Judgment is hereby DENIED. It is further
ORDERED that the defendants Motion for Summary Judgment is hereby ALLOWED.
Judgment to issue accordingly.
By the court (Grossman, J.)
[Note 1] Defendants Joint Statement of Facts in Support of Their Motion For Summary Judgment (Defendants Statement), ¶ 12.
[Note 2] Boston Zoning Enabling Act, St. 1956 c. 665, as amended.
[Note 3] St. 2006, c. 123 is the General Appropriations Act (GAA) for that fiscal year.
[Note 4] Transcript of Hearing on Summary Judgment (Tr.), p. 124.
[Note 5] St. 2006, c. 123, § 2A provides in relevant part as follows:
For the executive office of transportation for the construction, development, modernization, rehabilitation, upgrade and improvement of certain public transportation related infrastructure as described in this item in an around the city of Boston, including the Longwood Medical Area, Kenmore Square, Medical Academic and Scientific Community Organization (MASCO) affiliated members, the Fenway, Fenway Park and the Campus of Boston University.
The Act speaks further of new and increased economic activity resulting in greater demand and need for improved public transit, roadways, lighting, utilities, traffic control, pedestrian access, public safety, access to public transportation facilities and services and compliance with the Americans with Disabilities Act providing that not less than $12,500,000 shall be expended for the planning, design, construction of roadway improvements to Sears rotary, Ipswich street, Maitland street, and Yawkey Way .; provided further that not less than $5,600,000 shall be expended for the city of Boston for the planning, design and construction of traffic management, including new and improved signals and traffic management equipment for Brookline avenue, Boylston street, Beacon street, Commonwealth avenue, Melnea Cass boulevard, Ruggles street and other streets and roadways in and around the Longwood Medical, Fenway and Kenmore Square areas that not less than $12,000,000 shall be expended for the design, planning and construction of upgrades of [MBTA] Yawkey commuter rail station that not less than $5,000,000 shall be expended for the planning design and construction of enhancements to the Fenway, Kenmore and Longwood stations on the [MBTA] Green Line including but not limited to, pedestrian access improvements and enhancements to improve connectivity with the Yawkey commuter rail station .
[Note 6] Formally designated PDA Development Plan for Fenway Center within Fenway / Kenmore Square/ Audubon Circle Area No. 74.
[Note 7] Complaint, p.1.
[Note 8] See uncontroverted statement in this regard by counsel for MK Parcel 7, Tr. 64:19-20.
[Note 9] As inserted by St. 1987, c. 371, §2.
[Note 10] The very language of the Complaint suggests that both G.L. c. 240, § 14A and St. 1956, c. 665, § 10A are being invoked for much the same purpose.
[Note 11] Exh. 11, p 4. See also, p 5 which includes the following: The final location and appearance of these structures may change insofar as is required by the BRA during final design review of the Project, or by other governmental agencies and authorities. See also, pp. 14-116 captioned Other Necessary Government Approvals.
See also Tr. 63-64, where counsel for MK Parcel 7 recites that the Fenway Center Project is a 1.3 million square foot mixed use transit oriented development, that is expected to encompass 5 separate buildings, result in 330 residential units, more than 370,000 square feet of commercial space, at least 92,500 square feet of retail space, and 1,290 garaged parking space .
[Note 12] Tr: 10:4-6.
[Note 13] See Tr: 10: Per plaintiffs counsel: Ill discuss each of the three zoning issues that arise out of the PDA and the Fenway Center project. Maitland Street and Overland Street are going to be connected. Theyre going to create a public street here, as well as this brand new public street, Yawkey Way Extension which connects with Maitland and Overland Street. There follows a discussion of those zoning issues, each of which relates directly to the proposed public roadways. See in this regard, Tr.:15, 20-21, and 21-22 Those are the three types of categories of impact that will be caused as a result of the building of the Fenway Center Project. Tr:22.
[Note 14] This court construes such language to mean that the roadway improvements at issue, are not deemed part of the PDA Plan No. 74.
[Note 15] See Note 4, supra. See also PDA Development Plan No. 74, p. 3.
[Note 16] Shen Deposition Transcript (Shen Tr.): 42:19-24.
[Note 17] See Exh. 11, p. 11: The Project is a transit-oriented development centered on the MBTAs major upgrade of the Yawkey Station, which will become a multi-modal center with pedestrian connections to buses and the MBTAs Green Line at the Fenway, Kenmore and Blandford Street Stations. [T]he Project will help to minimize auto trip generation and auto ownership levels for its residents.
[Note 18] Exh. 11, p. 8: The new station will be fully integrated into the design of the Project, and will have direct access from the open green space and headhouses on Brookline Avenue, Beacon Street and the New Yawkey Way Extension.
[Note 19] As to Transit-Oriented Developments or TODs, refer to deposition of Kairos Shen (Shen Depostion), the Citys Chief Planner and the Director of Planning for the Boston Redevelopment authority. Extracts of that deposition at Tab. B1, pp. 59-61 of the Appendix to the Defendants Undisputed Statement of Facts (Shen deposition). See also the sequence of events as recounted in the Shen deposition, which underlies the TOD at issue.
[Note 20] See Shen Tr:126: Mr. Shen was asked as follows:
Q: When the legislation was being considered, were there schematics that would have shown exactly what the roadways were? A: There were .
[Note 21] Parcels owned or controlled by CSX Transportation, Inc., a private company.
[Note 22] It appears that the City of Boston was named as a party defendant so as to accord with this statutory provision.
[Note 23] The by-law authorized a special permit for the construction of a single family dwelling on an undersized lot provided the applicant was (a) under thirty years of age, and (b) had resided in the town for at least eight consecutive years.
[Note 24] See Harrison v. Braintree, 355 Mass. at 655. [T]he landowner comes to court because of the effect of the [zoning] enactment on the continued use, enjoyment, improvement or development of his property for the purpose for which it is zoned.
[Note 25] See Mass. Broken Stone v. Weston, 45 Mass. App. Ct. 748 (1998).
[Note 26] G.L. c. 185, § 1 concerns the subject mater jurisdiction of the Land Court. Subsection j ½ provides that the Land Court may hear the following: Complaints under section fourteen A of chapter two hundred and forty to determine the validity and extent of municipal zoning ordinances, by-laws, and regulations.
[Note 27] Id. at p. 211.
[Note 28] See Complaint, p. 17.
[Note 29] See HRPTs [Proposed] Order.
[Note 30] Thereby avoiding, for example, the standing requirements under § 10A which the defendants contend the plaintiff fails to meet, in any event. .
[Note 31] The three types of categories of impact on HRPTs property that [plaintiff alleges] will be caused as a result of the building of the Fenway Center Project. See in this regard, Note 12 supra.
[Note 32] Tr: 27-28. By plaintiffs own admission, there would appear to be an obvious redundancy in the claims asserted under both statutory schemes.
[Note 33] This court acknowledges the paucity of appellate law on the question at issue, i.e., whether § 10As reference to persons aggrieved incorporates the standing requirements of the same term in G. L. c. 40A, § 17. It has, however, been the practice of Massachusetts appellate courts to interpret this term as being substantially the same in comparable contexts, see Krafchuk v. Planning Bd. of Ipswich, 453 Mass. 517 , 522-523 (2010) (applying § 17 standard to subdivision control law); Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 27 (2006) (applying § 17 standard to G. L. c. 40B); Bell v. Zoning Bd. of Appeals of Gloucester, 429 Mass. 551 , 553 (1999) (same); Sherrill House, Inc. v. Board of Appeal of Boston, 19 Mass. App. Ct. 274 , 275 (1985) (applying § 17 standard to § 11 of Boston Zoning Enabling Act); and this court can see no principled reason not to extend this reasoning to § 10A. It accordingly finds Judge Longs application of the § 17 standard to § 10A in Romano persuasive. This court would also note that the imposition of such a standing requirement would render § 10A exclusivity provision intelligible. Nevertheless, in part because there is no binding authority on point, this court will reach defendants claims on the merits in their joint motion for summary judgment as well.
[Note 34] The extensive summary judgment record is notable for the dearth of discussion concerning the manner in which the Maitland-Overland Connection and the Yawkey Way Extension might come to fruition, i.e. how is it that the Commonwealths Department of Transportation will gain access to the HRPT property for purposes of constructing the said roadways? Will the Department do so by means of an eminent domain taking; will it obtain an easement from the owner, or otherwise.
As to the roadway extensions at issue, see Shen Tr: 131-132; 165. As to the FAR concerns on the part of the plaintiff, see Shen Tr: 129-130 ; 165. As to concerns regarding the loading dock, see Shen Tr: 131, 133-135.
[Note 35] St. 1975, c. 808, § 2A, provides greater specificity with regard to the legitimate subject matter of land use regulation in the Commonwealth:
The purposes of this act are to facilitate, encourage, and foster the adoption and modernization of zoning ordinances and by-laws by municipal governments in accordance with the provisions of Article 89 of the Amendments to the Constitution [the Home Rule Amendment] and to achieve greater implementation of the powers granted to municipalities thereunder.
This act is designed to provide standardized procedures for the administration and promulgation of municipal zoning laws. This section is designed to suggest objectives for which zoning might be established which include, but are not limited to, the following: to lessen congestion in the streets; to conserve health; to secure safety from fire, flood, panic and other dangers; to provide adequate light and air; to prevent overcrowding of land, to avoid undue concentration of population; to encourage housing for persons of all income levels; to facilitate the adequate provision of transportation, water, water supply, drainage, sewerage, schools, parks, open space and other public requirements; to conserve the value of land and buildings, including the conservation of natural resources and the prevention of blight and pollution of the environment; to encourage the most appropriate use of land throughout the city or town, including consideration of the recommendations of the master plan, if any, adopted by the planning board and the comprehensive plan, if any, of the regional planning agency; and to preserve and increase amenities by the promulgation of regulations to fulfill said objectives . Although section 2A was not included in the Zoning Act, because it was intended to provide only guidance to cities and towns in adopting land use regulation, and was never meant to provide an exclusive list of legitimate zoning subject matters, it does give a flavor for what zoning law generally should regulate in Massachusetts.
Indeed, after ratification of the Home Rule Amendment, [i]n essence, a valid zoning regulation is any ordinance or by-law adopted pursuant to the procedures set forth in Mass. Gen. L. c. 40A, § 5 and not inconsistent with the constitution or laws of the Commonwealth. BOBROWSKI, HANDBOOK OF MASSACHUSETTS LAND USE AND PLANNING LAW 34 (Aspen 2002). Nonetheless, the above-quoted section does provide a thumb-nail sketch of the scope of zoning regulation, and there is no indication that, in exercising their broad powers under the Home Rule Amendment, cities and towns are authorized to adopt zoning regulations that swallow up all other areas of municipal and state law.
[Note 36] I.e. a project which far predates that which is the subject of the instant appeal.
[Note 37] For substantially the same reason, see discussion under G. L. c. 240, § 14A, infra, HRPTs claim of harm would likely fail even if properly brought pursuant to § 14A, as the statute requires a demonstration by the petitioner that the subject zoning provision directly and adversely affects the permitted use of his land. Hanna, 60 Mass. App. Ct. at 422, quoting Mastriani v. Building Inspector of Monson, 19 Mass. App. Ct. 989 , 990 (1985).
[Note 38] As noted supra, no such request was set forth in the Complaint.
[Note 39] See especially, the sworn virtually uncontroverted deposition testimony of Chief City Planner and Director of Planning for the Boston Redevelopment Authority, Kairos Shen.
[Note 40] Shen Tr: 179.
[Note 41] In respects deemed especially relevant by this court, Mr. Shen s testimony has been uncontroverted.
[Note 42] Id. at 185.
[Note 43] Id. at 189. See also, id. at 43 where Mr. Shen speaks of the roadway projects in these terms:
So the plan called for extending the alignment of Maitland and Overland so they connect, two existing streets that are very close to each other but do not currently connect; and then the other is to create new streets, such as the extension of Yawkey Way, and connect the extension of Yawkey Way along the alignment of rail right-of-way in order to provide public access to the transit station.
If these were not done, the new transit station would not have either vehicular or pedestrian connections, and it would be a substandard station . Because you cannot create a public transit station without any public access. Id. at 43-44.
[Note 44] Id. at 61.
[Note 45] Id. at 77.
[Note 46] Id. at 78.
[Note 47] Id. at 86.
[Note 48] Id. at 141.
[Note 49] Id. at 144.
[Note 50] Id. at 147.
[Note 51] Id. at 156.
[Note 52] HRPT disputes that the foregoing represents the level of deference this court is to accord the legislative action of the BZC in amending Bostons zoning. In this regard, it contends that § 80(c) of the Boston Zoning Code imposes a procedural requirement upon the amendment of Bostons zoning, such that any amendment must pass a balancing of the community benefits and burdens before adoption. This weighing, however, according to the clear terms of that provision is to be done by the Boston Redevelopment Authority, when deciding whether to recommend a zoning change; it is not a criterion that the BZC must apply when deciding to accept a BRA recommendation. Also, the Kimberk decision sought review of a PDA amendment under identical provisions of Bostons zoning code, and this court considers Judge Greens analysis both on point and persuasive.
Moreover, even if this criterion should be applied by the BZC in making its zoning amendment decisions vis à vis a PDA amendment, HRPT has utterly failed to demonstrate that the BZC did not employ such a methodology or that its action would fail such a weighing in this case. The summary judgment record is replete with evidence of community benefit. HRPT contends that the BZC should have weighed such benefits against the harm to itself, but this harm constitutes a wholly private harm and not, without more substantiation, a community harm.
[Note 53] For example, in its Motion for Partial Summary Judgment Pursuant to M.G.L. Chapter 240, Section 14A, the plaintiff argues that PDA Plan No. 74 together with applicable provisions of Boston Zoning code Articles 2A and 66, constitutes an invalid zoning enactment because it will have an arbitrary and discriminatory impact on HRPTs property. See also, HRPTs supporting memorandum, in which it argues that [b]ecause of the discriminatory impact of this zoning change upon HRPTs property, PDA Plan No. 74 should be declared invalid under M.G.L. c. 240, § 14A.
[Note 54] See, for example, the approved PDA No. 74 itself, as well as the Deposition Transcript of Chief City Planner Kairos Shen.
[Note 55] See Fabiano v. Massachusetts College of Pharmacy and Health Sciences, 64 Mass. App. Ct. 1111 , Decision Pursuant to Rule 1:28 cited for its persuasive value. In Fabiano the Boston Zoning Commission approved, inter alia, an amendment of the zoning map of the area to reflect the new use of the properties [at issue]. The plaintiffs argued that the action by the Commission constituted illegal spot zoning. A trial court judge allowed the defendants motion for summary judgment, assuming without deciding that the plaintiffs had standing. The judge concluded that the plaintiffs had failed to produce countervailing materials to rebut the defendants showing that the map amendment in question was substantially related to the public welfare . As the motion judge correctly analyzed, [t]here is an absence of summary judgment evidence that the map amendment was designed solely for the benefit of the [proponent] and not for the public welfare of the city as a whole . [W]e conclude that summary judgment was properly allowed.
[Note 56] Or somehow under the provisions of § 10A.