MISC 13-480079

December 31, 2014

Middlesex, ss.



On October 16, 2013, plaintiff Dorothy M. Janes [Note 1] filed this action for certiorari pursuant to G.L. c. 249, § 4, appealing a decision made by the Town of Groton’s Board of Health regarding plaintiff’s shared sewer system. In her complaint, Ms. Janes names as defendants the Town of Groton (“Town”), the Groton Board of Health (“BOH”), and the members of the Groton Board of Health–Robert J. Fleischer, Susan Horowitz and Jason Weber. Ms. Janes alleges that a decision of the BOH should be overturned because it was made by the defendants contrary to law, and in disregard of an easement agreement pertaining to the shared sewage system on Janes’ property and that of a neighbor.

On February 10, 2014, defendants filed a motion to dismiss plaintiff’s complaint for lack of subject matter jurisdiction and as being time-barred. The motion included an affidavit of Ira Grossman, the appointed health agent of the BOH. The plaintiff filed an opposition to the motion on March 10, 2014. Plaintiff then filed on June 17, 2014 a motion to consider new evidence in support of the complaint, accompanied by further opposition to the motion to dismiss. Defendants moved on June 18, 2014 to strike portions of plaintiff’s opposition to the motion to strike, and on June 27, 2014 plaintiff opposed that motion. On July 29, 2014, defendants filed an opposition to plaintiff’s motion to consider new evidence. The court (Piper, J.) [Note 2] Then held a hearing on defendants’ motion to dismiss, and now rules on that motion. [Note 3]

The following facts are shown by the pleadings, augmented by the record of uncontested facts the parties have assembled, and are not in dispute. Fairview Orchards, Inc. (“Fairview”) owned a certain parcel of land on Boston Road, Groton, Massachusetts, that was divided lawfully into two lots. The division created 120 Boston Road (“Lot 1”) and 116 Boston Road (“Lot 2” or the “Property”). Fairview conveyed Lot 1 to Peter C. Myette, as trustee of the PCM Realty Trust (“Myette”), by quitclaim deed dated July 18, 1996, and recorded with Middlesex County (South District) Registry of Deeds (“Registry”) in Book 26676, Page 253.

Shortly after the division of the land was approved, Fairview executed the “Fairview Orchards Access Agreement,” establishing a parking lot and access easement for the shared benefit of the owners of Lot 1 and Lot 2. This document, dated August 29, 1996, is recorded in the Registry in Book 26626, Page 235. Fairview also executed a “Grant of Title 5 Covenant and Easement” (“Easement”), granting the BOH and the Department of Environmental Protection (“DEP”) certain rights, including an easement for access to a shared sewage system (“Shared System”) installed for use by Lot 1 and Lot 2. [Note 4] The Easement, which is of record in the Registry in Book 32022 at Page 119, draws largely from the form “Grant of Title 5 Covenant and Easement” provided in Title 5 of the Massachusetts Environmental Code, 310 C.M.R. §§ 15.001-505. [Note 5] The Easement (and Title 5, as well) require the Shared System to be inspected and pumped periodically, and for documented proof of such maintenance to be filed with the BOH.

In 2000, Fairview conveyed Lot 2 to plaintiff Dorothy Janes Limited Partnership [Note 6] by quitclaim deed, recorded in the Registry in Book 32022, Page 139. Both Lot 1 and Lot 2 continue to be burdened by the Fairview Orchards Access Agreement and the Easement. Ms. Janes runs a business at 116 Boston Road. In April, 2013, the BOH determined that the Shared System had not been inspected since 2000, and was in violation of Title 5. The parties were notified that an inspection was required as soon as possible.

On June 26, 2013, the BOH issued an order (“June Order”) in the form of a letter to Dorothy Janes:

According to the Groton Board of Health records you have not complied with the minimum requirements of the subsurface sewage disposal system for the “shared system” at 116 Boston Road. As part of the shared system requirements you are required to have the system inspected yearly. There is no record of the required yearly Title 5 inspection (last one was done in 2000) nor any maintenance or pumping reports. It was requested in April that a Title 5 inspection be done as soon as possible and to date, we have not received proof of an inspection.

In accordance with the Town of Groton Sewer Regulations Chapter 190, you are hereby ordered to properly abandon the existing subsurface sewage disposal system within 30 days and connect to the municipal sewer collection system.

Section 1 of Chapter 190 of the Town of Groton Sewer Regulations reads, in part:

The owner or occupant of a building situated within the Groton Center Sewer System, as it may be amended, shall: (A) In the case of an existing building within the system as of the effective date of this article, connect said building to the sewer with an effective drain within two years of said effective date or within two years of the date when said sewer is available for such connection, whichever date is later.

The Town Sewer became available on Boston Road in 2006.

The June Order was addressed to Ms. Janes incorrectly, and was returned to the BOH as undeliverable. The address was revised, and the June Order was re-sent in July, 2013; this was also returned as undeliverable. At a meeting on August 19, 2013, the BOH unanimously voted to modify the original June Order, granting Ms. Janes a sixty-day extension to abandon the Shared System. That decision was embodied in a letter dated August 27, 2013 (“August Order”), that was served on Ms. Janes in person on August 29, 2013. On October 16, 2013, Ms. Janes filed an action in this court seeking certiorari review of the BOH August Order, and alleging a breach of the Easement by the Town, the BOH, and the members of the BOH.

* * * * *

I. Subject Matter Jurisdiction

Defendants move to dismiss this action for lack of subject matter jurisdiction. Plaintiff claims her certiorari action is properly before this court because it falls within our limited jurisdiction as set out in G.L. c. 185, § 1(r), which lays out the authority of this court to hear certain–but not all–actions in the nature of certiorari pursuant to G.L. c. 249, § 4.

Section 1 of Chapter 185 of the Massachusetts General Laws sets forth in large measure the subject matter jurisdiction of the Land Court, although there are certain aspects of the court’s jurisdiction which are not included in section one’s extensive inventory of jurisdiction. [Note 7] Section 1(r) of Chapter 185 allows the Land Court to hear “[a]ctions brought pursuant to section 4 or 5 of chapter 249 where any right, title or interest in land is involved, or which arise under or involve the subdivision control law, the zoning act, or municipal zoning, subdivision, or land-use ordinances, by-laws or regulations.” Section 4 of Chapter 249 states in relevant part:

A civil action in the nature of certiorari 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, may be brought in the supreme judicial or superior court or, if the matter involves any right, title or interest in land, or arises under or involves the subdivision control law, the zoning act or municipal zoning, or subdivision ordinances, by-laws or regulations, in the land court....Such action shall be commenced within sixty days next after the proceeding complained of.

G.L. c. 249, § 4 (emphasis added). The Land Court’s jurisdiction pursuant to G.L. c. 249, § 4 is limited, and the court will not hear an action if it does not fall within the scope of the jurisdiction the legislature has conferred upon this court. See Sayle v. Nantucket Conservation Comm’n, 12 LCR 438 , 439 (2004) (Misc. Case No. 301051) (Lombardi, J.) (transferring G.L. c. 249, § 4 action to superior court because “the land court lacks subject matter jurisdiction over an action pertaining to a non-zoning wetlands by-law”). [Note 8]

In Sayle, supra, the plaintiffs brought an action against the Town of Nantucket’s Conservation Commission pursuant to G.L. c. 249, § 4, claiming the Commission improperly approved defendant’s project in light of the Nantucket Wetlands Protection By-law. This court held it lacked subject matter jurisdiction over plaintiff’s action. Sayle, 12 LCR at 439. Section 4 of Chapter 249 says: “…if the matter involves any right, title or interest in land, or arises under or involves the subdivision control law, the zoning act or municipal zoning, or subdivision ordinances, by-laws or regulations,” the matter may be heard in the land court. G.L. c. 249, § 4. Defendants argued the action needed to be dismissed for lack of subject matter jurisdiction, because the Town of Nantucket Wetlands Protection By-law was not a zoning by-law, but rather a “non-zoning wetlands by-law.” Sayle, 12 LCR at 439. Plaintiffs argued that 185 § 1(r) established the Land Court’s jurisdiction. Id. at 438. Section 1(r) states: “Actions brought pursuant to section 4 or 5 of chapter 249 where any right, title or interest in land is involved, or which arise under or involve the subdivision control law, the zoning act, or municipal zoning, subdivision, or land-use ordinances, by-laws or regulations.” G.L. c. 185, § 1(r) (emphasis added).

The inclusion of the words “land-use” in section 1(r), according to the plaintiffs in Sayle, allowed the Land Court to hear that type of case. 12 LCR at 438. The court in Sayle, however, pointed to the legislative history of Chapter 185, which shows that what the legislature intended in this area was a narrowing of the scope of the jurisdiction granted to the Land Court. Id. The court in Sayle suggested the inclusion of “land use” in Section 1(r) was erroneous, and should not be given weight: “it is unclear why the legislature failed to strike ‘or land-use’ from G.L.c. 185, § 1 (r).” [Note 9] Id. at 438-39.

This court does not have general and wide-ranging subject matter jurisdiction to hear all manner of “land-use” disputes as part of the court’s limited power to adjudicate certain enumerated certiorari cases. The particularized provisions of the specific statute, G.L. c. 249, § 4, control. The Land Court may hear a certiorari action pursuant to G.L. c. 249, § 4 only when “any right, title or interest in land is involved,” or when “the subdivision control law, the zoning act, or municipal zoning, subdivision ordinances, by-laws or regulations” are involved. In the pending case, as in Sayle, the challenged G.L. c. 249, § 4 decision did not arise out of the subdivision control law, zoning act, or a local zoning or subdivision law. See 12 LCR at 439. The reach of certiorari actions one may bring in the Land Court does not stretch to include, under the heading of “land-use” laws, cases concerning local bylaws governing septic systems which do not arise under the zoning and subdivision control laws. Accordingly, as a matter of subject matter jurisdiction, for this case to proceed in this court, plaintiff’s certiorari action must implicate a “right, title or interest in land.” See id.

The court concludes that the Groton BOH decision ordering Janes to abandon her Shared System does not involve a right, title or interest in land within the contemplation of the certiorari statute. Janes contends that the presence, in the title to the Property, of the Easement presents a question of real estate title--providing an anchor, under the provisions of G.L. c. 249, § 4, giving jurisdiction to this court. But that is not correct. The essence of the case is Ms. Janes’ challenge to the decision making by the BOH that culminated in the contested orders that the on-site septic system serving her Property be discontinued, and that she cause the sewerage generated on her land to be directed to the now available municipal sewer system adjoining the Property. The orders of the Board of Health which are under attack do not draw their authority from the Easement. The Board’s claim of its right to require connection to the public sewer rests, instead, on the provisions of the local law found in Section 190-1 of the Groton Code. That section mandates, in substance, that an existing building within the sewer service area be connected to the sewer system within two years of the date the sewer system becomes available.

No fair reading of the pleadings suggests that there is any real dispute about the title to the Property, or about the effect that the recorded Easement or Fairview Orchards Access Agreement have upon the title. The Town of Groton is a recipient of rights under the Easement, but the rights conveyed in that instrument do not give rise in any way to the Board of Health’s asserted right to require the public sewer connection. What the Town received by way of the Easement were rights to enter the Property to inspect the on-site system, to perform work on it if needed and not performed by the owners, and to impose liens for costs incurred in taking those remedial steps. But the recorded instruments do not at all provide the source of the Board’s asserted right to require the connection. That, the central issue in the case, is dependent on the meaning and enforceability of Section 190-1. Nothing the court would decide in this case, were it to reach the merits and adjudicate the legal propriety (or not) of the Board’s orders, would have any effect on the title to the land involved. Because nothing in the decision this court would be called upon to render would in any manner affect Janes’ right, title or interest in the Property at 116 Boston Road, this is not a case in which the Land Court’s jurisdiction under G.L. c. 249, § 4 exists. [Note 10]

II. Timeliness and the Statute of Limitations

Defendants also claim plaintiff’s action is time-barred, and must be dismissed, because the action was commenced more than sixty days after June 26, 2013, when defendants say the BOH rendered the decision which ordered plaintiff to abandon the Shared System. [Note 11] Plaintiff claims that her filing was timely, because she filed within sixty days of the adverse action taken by the BOH (which plaintiff puts as the August 19, 2013 meeting, where the Board extended the deadline to sixty days, and which resulted in the August Order). This court will not decide this timeliness question; it would be inappropriate for the court to do so, given that the case must be dismissed because the Land Court lacks jurisdiction. It certainly is possible that a ruling on the timeliness of plaintiff’s complaint might require factual findings, and, even were this court to possess the necessary jurisdiction, the posture of the case here, with a motion pending under Mass. R. Civ. P. 12, might not be appropriate to resolve the statute of limitations question.

This dismissal will enter without prejudice to the action being refiled in a court having the proper jurisdiction. There is a “saving statute” in Massachusetts which well may apply, allowing a party to re-file in a proper forum within one year if the original action, filed in the improper forum within the statute of limitations for that cause of action, is dismissed by the first court for a variety of reasons, including “for any matter of form....” See G.L. c. 260, § 32. Section 32 of General Laws, Chapter 260 states: “If an action duly commenced within the time limited in this chapter is dismissed...for any matter of form...the plaintiff or any person claiming under him may commence a new action for the same cause within one year after the dismissal....” G.L. c. 260, § 32.

The Appeals Court has interpreted the phrase “for any matter of form,” to apply to dismissals for lack of jurisdiction. Boutiette v. Dickinson, 54 Mass. App. Ct. 817 , 817 (2002). In Boutiette, the plaintiff obtained a default judgment against the defendant in Texas. 54 Mass. App. Ct. at 817. The plaintiff then filed a complaint in Boston Municipal Court Department to enforce that judgment. Id. The Boston Municipal Court found the Texas court lacked personal jurisdiction over the defendant. Id. The plaintiff then re-filed the complaint in Worcester District Court; that court dismissed for lack of subject matter jurisdiction (“equitable relief unavailable in that court”). Id. at 818. Finally, plaintiff pursued her claim in the Superior Court; that action was dismissed as time-barred, pursuant to the three-year statute of limitations provision for tort actions, G.L. c. 260, § 2A. Id.

The Appeals Court vacated the dismissal, holding that G.L. c. 260, § 32 allowed plaintiff to bring the action in the proper forum after dismissal from an improper forum within one year. Id. at 818-19. The Appeals Court stated: “It is settled that a dismissal for want of jurisdiction is for a ‘matter of form’ within the meaning of the statute.” Boutiette, 54 Mass. App. Ct. at 818. In this action, this court is entering a judgment of dismissal without prejudice for lack of subject matter jurisdiction, which may be eligible to constitute a “matter of form” under the savings statute. [Note 12] It will be for the court in which this cause of action is refiled, if any, to make that determination if and when the question arises there.

Accordingly, it is

ORDERED that the motion to dismiss is GRANTED. A judgment will enter dismissing this case, without prejudice to filing a complaint asserting the same cause of action in a court possessing the required subject matter jurisdiction.

So Ordered.


[Note 1] Janes Properties Limited Partnership (“JPLP”) also joined in this action as a plaintiff. After this action began, JPLP, an entity said by Dorothy M. Janes to be wholly owned and controlled by her, assigned its interest in the locus to Ms. Janes, individually. At argument, she agreed that JPLP no longer has any justiciable interest in the property or this litigation, and that the case is to be treated by the court with Ms. Janes as the sole plaintiff. In view of this, the court has no occasion to address the concern which otherwise would subsist--about having a limited partnership not represented by counsel.

[Note 2] On July 22, 2014, this case was reassigned from Grossman, J. to Piper, J.

[Note 3] At that hearing, the defendants did not press their motion to strike, and the court does not need to, and will not, make a ruling on that motion to resolve this litigation.

[Note 4] The Easement includes an escrow agreement (“Escrow Agreement”) that establishes an escrow account. The funds from that account are for the purpose of covering expenses associated with inspecting and pumping the Shared System.

[Note 5] The form can be found at the appendix to Title 5, 310 C.M.R. § 15.000.

[Note 6] See note 1.

[Note 7] See, eg., Gordon H. Piper and Diane C. Tillotson, REAL ESTATE TITLE PRACTICE IN MASSACHUSETTS § 15.1.2 (Kathleen M. Mitchell & Peter Wittenborg eds., MCLE, Inc. 2d ed. 2010).

[Note 8] See also ORE Assocs., Inc. v. Miller, 12 LCR 452 , 453 n.1 (2004) (Misc. Case No. 291671) (Scheier, C.J.) (jurisdictional issue about Land Court’s hearing complaint for certiorari review of local board of health decision, which denied plaintiff a permit to construct individual sewage disposal system, rendered moot after court granted parties’ motion to transfer action to Superior Court).

[Note 9] The Sayle court interpreted the legislative history of H-1989–An Act Relative to the Concurrent Jurisdiction of the Land Court–to mean that the Land Court received its new certiorari jurisdiction within a narrow confine, because the legislature intentionally cut out references to “wetlands” and “land-use ordinances” before the legislation became final: “As originally introduced on January 3, 2001, § 7 of H-1989 included the word ‘wetlands’ between ‘subdivision’ and ‘land-use ordinances’ and § 20 contained the words ‘land-use ordinances.’ Before final enactment, the legislature deleted ‘wetlands’ from G.L. c. 185, § 1(r), appearing in § 7 of H-1989, and struck the words ‘or land-use’ from § 20.” Sayle, 12 LCR at 438.

[Note 10] Lacking subject matter jurisdiction, this court is unable to reach and decide the questions presented in this action–the validity and effect of the Board’s decisions and the provisions of the local code on which they depend. If the court were able to delve into those issues, it would need to consider whether a local board of health’s authority to promulgate regulations–and to enforce those regulations–to promote the public health and safety, see G.L. c. 111, § 31 (“[b]oards of health may make reasonable health regulations”), sufficiently authorize the decisions made. The court would be required to take up whether this authority exists, something the Board contends is the case because the Board’s power includes the enforcement of Title 5.

See 310 C.M.R. § 15.025(1)-(2) (“(1) The provisions of [Title 5] shall be implemented and enforced by the [local board of health or its authorized agent] with oversight and assistance by the [DEP]...(2) Local [board of health] may enforce the provisions of [Title 5] in the same manner in which local health rules and regulations are enforced.”). But, because this court lacks the requisite subject matter jurisdiction, those issues must be addressed in another court.

[Note 11] Defendants cite to Carney v. Framingham to support their argument that plaintiff’s action is time-barred, contending the date this action was filed falls more than sixty days after the “proceeding complained of,” namely, the June 26, 2013 Board of Health order: “The term ‘proceeding complained of’ refers to ‘the last administrative action’ taken by an agency.’ ... The last administrative action occurs when the administrative agency makes a final decision on the issue at hand, not when it later memorializes that determination in written form.” 79 Mass. App. Ct. 1129 (2011) (citations omitted). Plaintiff, on the other hand, claims the last administrative action was the August 19, 2013 Board of Health meeting, where the Board voted to extend her deadline to abandon the Shared System. The filing of the complaint on October 16, 2013 was fifty-eight days after that meeting.

[Note 12] It is not entirely clear whether the saving statute, G.L. c. 260, § 32, will apply to an action under G.L. c. 249, § 4, which was enacted with its own statute of limitations:

Appellate decisions in this Commonwealth have not been entirely consistent in interpreting this language where the limitation is imposed in another statute. See O'Brien v. Massachusetts Bay Transp. Auth., 405 Mass. 439 , 441–443 (1989) (tolling provisions of G.L. c. 260, § 7, apply to actions brought under G.L. c. 161A, § 21); Weaver v. Commonwealth, 387 Mass. 43 , 50 (1982) (tolling provisions of G.L. c. 260 have no application to actions not having a common law basis); Carroll v. Worcester, 42 Mass. App. Ct. 628 , 629 (1997) (tolling provisions of G.L. c. 260, § 32, apply to actions commenced under G.L. c. 258); Ciampa v. Beverly Airport Comm'n, 38 Mass. App. Ct. 974 (1995) (tolling provisions of G.L. c. 260, § 32, have no application to actions not having a common law basis).

Maltz v. Smith Barney, Inc., 427 Mass. 560 , 562-63, (1998). This court, of course, must defer the resolution of this point to the court with proper jurisdiction, should this cause of action be refiled and it then become necessary to address these issues.