COCO BELLA, LLC v. TOWN OF HOPKINTON BOARD OF APPEALS AND ITS MEMBERS, ROY WARREN, G. MICHAEL PIERCE, TINA ROSE, MICHAEL DIMASCIO, JUNE CLARK, KELLY KNIGHT, JOHN SAVIGNANO, and 2 HIGH STREET REALTY LLC and S.F. MANAGEMENT LLC.

Introduction

The plaintiff Coco Bella, LLC (Coco Bella / plaintiff) initiated the instant action pursuant to G.L. c. 40A, § 17, on November 12, 2013. In so doing, it challenged a decision of the defendant Town of Hopkinton Board of Appeals (Board/Zoning Board). By virtue of its decision the Board upheld the Hopkinton Planning Board’s grant of Site Plan Approval to the applicant, S.F. Management LLC (S.F. Management / defendant) regarding the property known and numbered as 78 West Main Street, Hopkinton, Massachusetts (property / locus).

S.F. Management has now filed a Motion to Dismiss Coco Bella’s complaint pursuant to Mass. R. Civ. P. 12(b)(1). Specifically, it alleges that Coco Bella not only failed to exhaust its administrative remedies prior to seeking relief in this court, but that it also lacks standing to pursue an appeal under G.L. c. 40, § 17. In the alternative, S.F. Management requests that this court consider this motion under a summary judgment standard pursuant to Mass. R. Civ. P. 56(c). [Note 1] The Board of Appeals has filed a limited opposition to the Motion to Dismiss in which it takes issue with the exhaustion of remedies argument. For the reasons set forth herein, the Motion to Dismiss will be DENIED.

Background

The locus is owned by 2 High Street Realty LLC (High Street Realty). [Note 2] Coco Bella is the owner of the property known and numbered as 61 Elm Street in Hopkinton. [Note 3] The southern lot line of the plaintiff’s property abuts the locus for a distance of 125 linear feet. [Note 4] S.F. Management applied to the Hopkinton Planning Board (Planning Board) for a Site Plan Review in March 2013 [Note 5] in connection with its plan to construct a Dunkin Donuts Shop. On July 10, 2013, the Planning Board granted Site Plan Approval to the defendant. [Note 6] Thereafter, the plaintiff appealed the Planning Board’s decision to the defendant Hopkinton Board of Appeals, pursuant to a Section 210-135.F of the Hopkinton Bylaw. That section provides in relevant part, as follows:

Any person aggrieved by a Decision of Site Plan review by the Planning Board may appeal such decision to the Board of Appeals within 20 days of the date filed with the Office of the Town Clerk. . . .

If the Planning Board has issued an approval decision, the Board of Appeals shall examine the proposal and prepare its own findings to determine whether the conditions imposed by the Planning Board are reasonable, and shall limit its evaluation to those conditions at issue in the appeal. The Board shall determine the reasonableness of each such condition in a two-step process:

(1) The Board shall determine whether the condition relates to one of the site plan standards listed in § 210-136.1; and

(2) The Board shall examine the condition for reasonableness, which requires that the Board make detailed factual findings to justify its determination of the condition’s reasonableness or unreasonableness. [Note 7]

The Board of Appeals denied the plaintiff’s request to overturn the Planning Board’s Site Plan Approval, concluding “there were no grounds for a denial of the Site Plan approval by the Planning Board, and no grounds for this Board to overturn the Decision of Site Plan Review.” [Note 8] The Board filed its decision with the Town Clerk on October 23, 2013. [Note 9] On November 12, 2013, the plaintiff sought review of the Zoning Board’s decision with this court pursuant to G.L. c. 40A, § 17. Thereafter, on January 24, 2014, the plaintiff amended its complaint. In the Amended Complaint, the plaintiff asserts, inter alia, that it is a direct abutter aggrieved by the Board’s decision, and further, that the “defendant’s proposal for development of a non-permitted use under the Zoning Bylaw will violate and adversely affect plaintiff’s private property rights.” [Note 10] S.F. Management filed its Motion to Dismiss, which was the subject of a hearing on April 16, 2014.

Standard of Review

In reviewing a motion to dismiss under Mass. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction, the court accepts as true the factual allegations of the plaintiff’s complaint, as well as any favorable inferences which may be reasonably drawn therefrom. Ginther v. Comm’r of Insurance, 427 Mass. 319 , 322 (1998). In this context, the court may also consider documents, affidavits, and other materials outside the pleadings and resolve any factual disputes between the parties. Wooten v. Crayton, 66 Mass. App. Ct. 187 , 190 n.6 (2006). Additionally, the trial judge has discretion to treat a 12(b)(1) motion to dismiss as one for summary judgment. [Note 11] Bell v. Zoning Bd. of Appeals of Gloucester, 429 Mass. 551 , 555 (1999) (affirming judge’s treatment of 12(b)(1) motion as motion for summary judgment when parties supplied supporting papers).

Discussion

In its motion, [Note 12] the defendant argues that the plaintiff’s right to appeal from the Planning Board’s Site Plan Approval arises only after a building permit has been issued or denied by the building inspector. As S.F. Management has neither sought nor been granted a building permit for its proposed project, it avers that the plaintiff’s appeal is premature and should be dismissed. Additionally, the defendant alleges that the plaintiff lacks standing under G.L. c. 40A, § 17 for several reasons—including, inter alia, the failure to allege a specific and non-speculative injury. Alternatively, the defendant requests that this court consider the motion under the summary judgment standard of Mass. R. Civ. P. 56. This court will address each argument in turn.

Exhaustion of Administrative Remedies

As a prerequisite to judicial review, one seeking relief under the Zoning Act [Note 13] must exhaust all administrative remedies at the local level. Quincy v. Planning Bd. of Tewksbury, 39 Mass. App. Ct. 17 , 20 (1995). In essence, this requires that “a person aggrieved by the action of a local zoning administrator (the building inspector in most municipalities) must first attempt to redress the grievance through the local board of appeals before seeking judicial review.” Id.; see also G.L. c. 40A, §§ 8, 13, 14, 17. Notably, the Zoning Act does not expressly recognize site plan review as an independent method of regulation in the Commonwealth. Osberg v. Planning Bd. of Sturbridge, 44 Mass. App. Ct. 56 , 57 (1997). As a result, “guidance regarding the appropriate mechanism of review of planning board action on a site plan has developed in iterative stages, depending on the particular frameworks established under various local bylaws.” Cumberland Farms, Inc. v. Planning Bd. of Bourne, 56 Mass. App. Ct. 605 , 608 n.6 (2002).

Site Plan Review may be “attached either to a special permit process for uses that are not as of right or to the issuance of a building permit for uses that are as of right.” Dufault v. Millennium Power Partners, L.P., 49 Mass. App. Ct. 137 , 139 (2000). Where a local bylaw equates site plan review with the special permit process, such decisions can be directly appealed to a court pursuant to G.L. c. 40A, § 17. See Quincy, 39 Mass. App. Ct. at 22; see also Martin Healy, Massachusetts Zoning Manual, § 8.14.5 (5th ed. 2010) (“[T]reatment of site plan review as a special permit process under the local bylaw allows such decisions to be appealed under Section 17 of the Zoning Act.”). However, where site plan review is connected with the issuance of a building permit, it is generally not considered an appealable final action until the building inspector issues or denies a building permit.

In St. Botolph’s Citizens Committee, Inc. v. Boston Redevelopment Authority, 429 Mass. 1 , 9 (1999), the court examined the plaintiffs’ appeal, prior to the issuance of a building permit, of a development approval—known as an “adequacy determination”— granted by the Boston Redevelopment Authority (BRA). After analogizing the BRA’s “adequacy determination” to a site plan review conducted by a local planning board, the court stated: “[a]n approval after site plan review, when required in connection with the issuance of a building permit, is not a final action, but only a prerequisite to the grant of the permit.” Id. at 8-9. Consequently, the “the right of an aggrieved person to appeal a local planning board’s site plan review decision arises only when the building permit for the proposed project is issued or denied by the building inspector.” Id. at 9; Dufault, 49 Mass. App. Ct. at 141-43 (applying St. Botolph reasoning in concluding that planning board’s site plan approval, prior to issuance of building permit, could not be appealed to board of appeals under G.L. c 40A, § 8 or the town’s bylaw). Once the building inspector takes action, however, an aggrieved party may thereafter appeal to the local zoning board of appeals. See G.L. c. 40A, § 8; McDonald’s Corp. v. Town of Seekonk, 12 Mass. App. Ct. 351 , 351, 352-53 (1981) (holding that superior court lacked jurisdiction to hear appeal of planning board decision where, subsequent to denial of building permit, matter had not yet been considered by local board of appeals); Osberg v. Planning Bd. of Sturbridge, 44 Mass. App. Ct. 56 , 60 n.8 (1997).

In the case at bar, the defendant maintains that because it has not yet even sought a building permit in connection its proposed project, the plaintiff’s complaint must be dismissed because there remains an administrative remedy at the local level, i.e., the appeal of any future determination of the building inspector to the Board of Appeals. The Hopkinton Bylaw states: “[f]or any construction project or change in use that requires site plan review, no building permit may be issued unless and until the applicant has complied with the provisions of this article [Article XX, Site Plan Review].” [Note 14] Relying in large measure upon St. Botolph, the defendant argues that “in cases such as this, where site plan review is required as a condition of the issuance of a building permit,” the plaintiff must await a determination by the building inspector before appealing to the zoning board of appeals, and ultimately, this court. [Note 15]

The defendant’s reliance on St. Botolph and similar cases is misplaced, however. In St. Botolph, nothing in either Article 31—the section under which the BRA issued the adequacy determination, or in the Boston Zoning Code, expressly provided for “an explicit right to, or avenue of, appeal by an applicant from adverse decisions by the BRA . . .” St. Botolph Citizen’s Comm. v. Boston Redevelopment Auth., 429 Mass. 1 , 7 (1999). Likewise, in Dufault v. Millennium Power Partners, L.P. which applied the St. Botolph reasoning in the context of G.L. c. 40A, nothing in chapter 40A or the local bylaw expressly provided for an appeal of the planning board’s site plan review decision to the local zoning board. 49 Mass. App. Ct. 137 , 140 (2000) (dealing with appeal of site plan review in context of as-of-right uses). In both instances, an appeal of the site plan review decision had to await either the issuance or the denial of a building permit.

In the case at hand, Hopkinton’s Bylaw explicitly provides that a party aggrieved by the Planning Board’s Site Plan Review decision may appeal such decision directly to the Board of Appeals. [Note 16] Such an appeal under the Bylaw is not predicated upon the issuance or denial of a building permit. In this regard, it is noteworthy that the Zoning Board has filed a Limited Opposition to the defendant’s Motion to Dismiss. In so doing, the Board relied on the specific language of the bylaw in arguing that the case should not be dismissed on an exhaustion of remedies basis. [Note 17]

The plaintiff herein acted in accordance with Hopkinton’s Bylaw in appealing the Planning Board’s decision directly to the Board of Appeals. The Appeals Court recently noted in a Rule 1:28 decision, that “because the exhaustion of remedies is not itself jurisdictional,” in the unique case where a town’s bylaw specifically provides that exhaustion of remedies is not required, “the plaintiffs were entitled to rely on the bylaw.” See Memorandum and Order Pursuant to Rule 1:28, Wildstar Farm, LLC v. Planning Bd. of Westwood, 81 Mass. App. Ct. 114 (Feb. 15, 2012) (Unpublished Disposition). [Note 18]

Lastly, as the Board of Appeals notes in its Limited Opposition, the appeal currently before this court is not a direct appeal of the Planning Board’s decision’s itself. Rather, the plaintiff has appealed from the Zoning Board’s decision denying its request to overturn the Site Plan Approval. A party aggrieved by a zoning board of appeal’s decision may appeal to a court of competent jurisdiction pursuant to G.L c. 40A, § 17. For the aforementioned reasons, this court is not prepared to dismiss the plaintiff’s complaint for failure to exhaust administrative remedies.

Standing Under G.L. c. 40A, § 17

The defendant additionally maintains that the plaintiff’s complaint must be dismissed pursuant to Rule 12(b)(1) because the plaintiff lacks standing to maintain its appeal pursuant to G.L. c. 40A, § 17. [Note 19] Under that section only a “person aggrieved” may appeal a decision of a zoning board of appeals. See G.L. c. 40A, § 17; Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996). Absent the requisite “aggrievement,” the court lacks subject matter jurisdiction and cannot reach the substantive issues presented in a claim. See Sweenie v. A.L. Prime Energy Consultants, 451 Mass. 539 , 542 n.9 (2008) (“[A]ggrievement[,] for purposes of pursuing an appeal under G.L. c. 40A, § 17, is a jurisdictional requirement.”).

While the words “person aggrieved” are not to be narrowly construed, see Marotta v. Bd. of Appeals of Revere, 336 Mass. 199 , 204 (1957), to fit within their definitional parameters, one must “‘suffer[] some infringement of his legal rights.’” Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115 , 117 (2011), citing Marashlian, 421 Mass. at 721; see also Circle Lounge & Grille, Inc. v. Bd. of Appeal of Boston, 324 Mass. 427 , 430 (1949). Ultimately, “standing to challenge a zoning decision is conferred only on those 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, ordinance, or bylaw at issue is intended to protect.” Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 30 (2006) (emphasis in original) (internal citations omitted); see also Harvard Sq. Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491 , 492-33 (1989).

Abutters, as “parties in interest” under G.L. c. 40A, § 11, [Note 20] benefit from a rebuttable presumption that they are “aggrieved persons” with standing to appeal a decision by a zoning board of appeals. See 81 Spooner Rd., LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692 , 700 (2012); Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996). To challenge the presumption, evidence must be offered which is “contrary to a presumed fact.” Marinelli v. Bd. of Appeals of Stoughton, 440 Mass. 255 , 258 (2003). However, the presumption does not shift the burden of proof on standing; rather, “it is a rule of evidence that aids the party bearing the burden of proof in sustaining that burden by ‘throw[ing] upon his adversary the burden of going forward with the evidence.’” Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 34 (2006). If the presumption is successfully rebutted, the plaintiff must set forth “credible evidence” to substantiate the allegations, including “establish[ing]—by direct facts and not by speculative personal opinion—that his injury is special and different from the concerns of the community.” Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115 , 118 (2011) (internal citations omitted). If this occurs, standing “will be decided on the basis of all the evidence with no benefit to plaintiff.” The question then becomes essentially a question of fact for the trial judge. 81 Spooner Rd, 461 Mass. at 702.

The Supreme Judicial Court has recently expounded on what is required to rebut the presumption of aggrievement—albeit in the context of a summary judgment motion. A defendant may (1) show either that the plaintiff has no reasonable expectation of proving a legally cognizable injury; or alternatively (2) come forward with “affirmative credible evidence that refutes the presumption.” 81 Spooner Rd., 461 Mass. at 702; Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 34 (2006). Legal arguments and mere allegations, however, are insufficient to rebut the plaintiffs’ presumed standing. See Standerwick, 447 Mass. at 37 (“It is not sufficient [to rebut the presumption of aggrievement] for a defendant to simply file a motion for summary judgment, or to deny the plaintiff’s allegations . . . .”); Watros v. Greater Lynn Mental Health and Retardation Ass’n, Inc., 421 Mass. 106 , 111 (1995) (“The presumption recedes when a defendant challenges the plaintiff’s status as an aggrieved person and offers evidence supporting his or her challenge.”) (emphasis in original); Valcourt v. Zoning Bd. of Appeals of Swansea, 48 Mass. App. Ct. 124 , 128 (1999) (“[I]t is not enough to simply raise the issue of standing in a proceeding under § 17 [through answer and legal memoranda]. . . [t]he challenge must be supported by evidence.”). Where no evidence is offered to rebut the presumption, a plaintiff is “entitled to rely on [the] presumed status of being [an] aggrieved part[y].” Watros, 421 Mass. at 111.

Taking the allegations of the plaintiff’s complaint as true for the instant Motion to Dismiss, the plaintiff is entitled to a presumption of aggrievement based on its status as an abutter to the locus. [Note 21] In attempting to rebut the plaintiff’s presumption of standing, the defendant has filed a Motion to Dismiss together with a supporting memorandum. [Note 22] The defendant correctly observes that “if standing is challenged, and evidence is offered in support of such challenge warranting a finding contrary to the presumed fact of aggrievement, the presumption of standing is lost and the burden to demonstrate standing rests with the plaintiffs.” [Note 23] The defendant then alleges, inter alia, that the plaintiff’s complaint fails to allege a specific and non-speculative injury, and merely amounts to a “general request for zoning enforcement of the Hopkinton Zoning Bylaw . . .” [Note 24] Specifically, the defendant avers that the “type of injury required and the specificity of a true ‘aggrieved’ plaintiff has never been offered, and certainly has not been presented to this Court . . .” [Note 25]

This court is not satisfied that the defendant’s have successfully rebutted the plaintiff’s presumption of standing. The defendants have done little more than to deny that the plaintiff is “aggrieved” within the meaning of G.L. c. 40A, § 17. This assertion, standing alone, will not suffice to rebut the presumption. See, e.g., Watros v. Greater Lynn Mental Health and Retardation Ass’n, Inc., 421 Mass. 106 , 111 (1995). The defendant has filed no affidavits or other materials with its Motion to Dismiss that would support its challenge, nor have they apparently conducted discovery to ascertain the bases, if any, for the plaintiff’s aggrievement. Compare Sweenie v. A.L. Prime Energy Consultants, 451 Mass. 539 , 542, 545-46 (2008) (granting defendant’s motion to dismiss for lack of standing where defendant conducted discovery, supported its motion with affidavits and exhibits addressing each of the plaintiffs’ claimed adverse impacts, and plaintiffs thereafter produced no credible evidence to substantiate their claims of aggrievement).

Although the defendant correctly summarizes the type of credible evidence the plaintiff must put forth once the presumption has been rebutted, the defendant has failed to successfully rebut the presumption, in the first instance. Consequently, the plaintiff is entitled to rely on its presumption of standing, particularly at this early stage of the case. For substantially similar reasons, this court declines the defendant’s request to treat this Rule 12(b)(1) motion as a motion for summary judgment under Mass. R. Civ. P. 56.

Conclusion

Predicated upon the foregoing, the plaintiff’s complaint is deemed to be properly before this court and will not be dismissed for lack of subject matter jurisdiction pursuant to Mass. R. Civ. P. 12(b)(1).

Accordingly, it is hereby

ORDERED that the Defendants’ Motion to Dismiss be, and hereby is, DENIED.

SO ORDERED