MISC 14-481861

July 25, 2014

Berkshire, ss.




The instant matter was initiated by suit commenced on February 26, 2014 by the plaintiffs Suresh Pandya, Anil Pandya and Mahida Hospitality, LLC (Mahida). On July 9, 2014 the plaintiffs’ Motion to Amend Complaint was Allowed by this court. The Amended Complaint includes counts pursuant to G.L. c. 40A, s. 17, G.L. c. 231A, and G.L. c. 240, s. 14A. The action arises from a decision by the Town of Lenox Zoning Board of Appeals granting the defendant Brushwood Nominee Trust (Brushwood) a Special Permit and Site Plan Approval for the construction of a four story, ninety-two room hotel on a 6.68 acre parcel at 70 Pittsfield Road in Lenox, Massachusetts. Brushwood has filed a Motion to Dismiss Claims of Mahida Hospitality Group, LLC (Motion to Dismiss).


Brushwood has entered into a purchase and sales agreement for the acquisition of the 6.68 parcel from the defendant June Hashim, the current record title holder.

The plaintiffs Suresh Pandya and Anil Pandya are the tenants in common of a parcel within 300 feet of the so-called Brushwood Parcel that is to be developed. The defendant Brushwood has brought a Motion to Dismiss the Claims of Mahida Hospitality Group, LLC (Motion) only. [Note 1] In its Brief in Support of Motion to Dismiss Claims of Mahida Hospitality Group, LLC Brushwood raises the following issues:

1. Whether Mahida, having an option to purchase, may be a person of interest under G.L. c. 40A, s. 11?

2. Whether Mahida “as the alleged party to an option to purchase and right of first refusal agreement” may be an aggrieved party” pursuant to G.L. c. 40A, s. 17? [Note 2]

3. Whether site plan approval may be the subject of an appeal pursuant to G.L. c. 40A, s. 17? [Note 3]

It is noteworthy that Brushwood does not challenge the standing of the remaining Pandya plaintiffs. [Note 4] Thus, even if this court were to grant the Motion to Dismiss, an anomalous situation would arise whereby the identical claims of the other named plaintiffs would survive.

Standard of Review

In reviewing a motion to dismiss under Rule 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).

As to the reference to Rule 12 (c) the Court, in the case of Jarosz v. Palmer, 436 Mass. 526 , 529 (2002), citing Smith & Zobel, Rules Practice s. 12.16 (1974), observed as follows:

A defendant’s rule 12 (c) [Motion for Judgment on the Pleadings] motion is “actually a motion to dismiss…[that] argues that the complaint fails to state a claim upon which relief can be granted…. In deciding a rule 12 (c) motion, all facts pleaded by a non- moving party must be accepted as true.

The Court continued with the observation that a motion under Rule 12 (c) “is akin to a motion under Mass. R. Civ. P. 12 (b)(6)”. For purposes of the instant proceeding, this court will therefore treat the Motion to Dismiss, to the extent it purports to be one under Rule 12 (c) as one pursuant to Rule 12 (b)(6).

In Iannocchino v. Ford Motor Co., 451 Mass. 623 , 636 (2008), the Supreme Judicial Court clarified the standard for determining the sufficiency of a complaint under Rule 12(b)(6):

While a complaint attacked by a . . . motion to dismiss does not need detailed factual allegations. . . a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions . . . Factual allegations must be enough to raise a right to relief above the speculative level . . . [based] on the assumption that all allegations in the complaint are true (even if doubtful in fact). What is required at the pleading stage are factual allegations plausibly suggesting (not merely consistent with) an entitlement to relief, in order to reflect the threshold requirement of [Fed R. Civ. P.] 8(a)(2) that the plain statement possess enough heft to sho[w] that the pleader is entitled to relief.

In applying this standard, this court must accept as true all factual allegations contained in the complaint, as well as “any favorable inferences reasonably drawn therefrom.” Eigerman v. Putnam Investments, Inc., 450 Mass. 281 , 282 (2007).


Site Plan Approval

In its Brief in Support of Motion to Dismiss Claims of Mahida Hospitality Group, LLC, (supporting memorandum) Brushwood argues, inter alia, that site plan approval “cannot be appealed until the building inspector issues or denies a building permit.” Brushwood argues, in effect, that the Mahida appeal is premature. Section 9.5 of the Lenox Zoning Bylaw is captioned Site Plan Approval For Developments In The C-1A And C-3A Zones. Subsection 9.5.16 captioned “Appeal” provides as follows:

Any decision of the Board pursuant to this Section [Site Plan Approval] shall be appealed in accordance with G.L. c. 40A, s. 17 to a court of competent jurisdiction. (emphasis added)

Thus, the Town of Lenox Zoning By-Law explicitly provides that a party aggrieved by the Zoning Board’s Site Plan Review decision may appeal that decision directly to “a court of competent jurisdiction.” Under the Bylaw, the appeal need not be predicated upon the issuance or denial of a building permit. This court is satisfied, therefore, that the plaintiffs have proceeded in accordance with the explicit language of the Bylaw. The Appeals Court has 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 5] This court is satisfied that the appeal was properly taken from the decision of the Zoning Board of Appeals.

Person of Interest Under G.L. c. 40A, s. 11

Brushwood argues too, that one with no more than a purchase option may not be a “person of interest” under G.L. c. 40A, s. 11. In this regard, Brushwood appears to conflate a “person of interest” with a “person aggrieved” under G.L. c 40A, s. 17. In any event, Brushwood has advanced no convincing argument, and this court is aware of none, to the effect that only a “person of interest” may qualify as an “aggrieved person”. At best, a “person of interest” enjoys a presumption of standing” for purposes of a s. 17 appeal. That is not to suggest that all other persons are precluded from demonstrating aggrievement. See, in this regard, Bobrowski, Handbook of Massachusetts Land Use and Planning Law, Third Edition, Section 11.03[A] citing Marotta v. Board of Appeals of Revere, 336 Mass. 199 , 204 (1957) ([A]s a general principle, “[t]he words ‘person aggrieved’…are not to be narrowly construed.” “The parallel standing provision of the Subdivision Control Law, [G.L. c. 41, s. 81BB referencing a person aggrieved] has been interpreted to allow mortgagees and purchasers with equitable interests to claim standing. Carey v. Planning Board of Revere, 35 Mass. 740 , 743 (1957).”

Standing Under G.L. c. 40A, s. 17

Brushwood urges this court to adopt a per se rule to the effect that one holding an option to purchase [Note 6] lacks standing to proceed with a G.L. c. 40A, s. 17 appeal. In evaluating this issue, i.e. whether one with an option to purchase may be an “aggrieved party”, the case of Quimby v. Zoning Board of Appeals of Arlington, 19 Mass. App. Ct. 1005 (1985) is instructive. Quimby concerned a G.L. c. 40A, s. 17 appeal in which the Arlington Zoning Board granted a variance to a “neighbor” of the plaintiff. The defendant moved to dismiss arguing, inter alia, that the plaintiff was not a proper party as she lacked standing. The plaintiff filed a motion to amend seeking to add as plaintiffs her parents who owned the dwelling in which she resided. The superior court allowed the motion to dismiss on grounds that the plaintiff “was not a person aggrieved.” It also denied the motion to amend. In reversing and remanding, the Appeals Court concluded as follows:

We think that the judge should not have allowed the motion to dismiss. There is no per se rule that a tenant or long-time resident can never have standing…. It may well be that on summary judgment or at trial the original plaintiff will be shown not to have standing, but that conclusion cannot be determined on the basis of the complaint alone.

The Appeals Court continued:

As put by the Connecticut Supreme Court: “[I]t is not possible to extract a precise comprehensive principle which adequately defines the necessary interest which a nonowner must possess in order to have standing to [challenge a variance]. The decisions have not been based primarily on whether the applicant could properly be characterized as an optionee or a lessee, but, rather, on whether the applicant was in fact a real party in interest with respect to the subject property. Whether the applicant is in control of the property, whether [she] is in possession or has a present or future right to possession, whether the use applied for is consistent with the applicant’s interest in the property, and the extent of the interest of other persons in the same property, are all relevant considerations in making that determination.” (citations omitted)

Predicated upon the Court’s reasoning in Quimby, this court is not prepared to adopt an inflexible rule excluding one who holds an option to purchase from the definition of “person aggrieved” under G.L. c. 40A, s. 17. [Note 7] Any further efforts on the part of Brushwood seeking to challenge Mahida’s standing, must await further factual development.

However, even if this court were to accept, arguendo, the notion that Mahida lacks standing, it would be of no moment. See, in this regard, Cohen v. Zoning Board of Plymouth, 35 Mass. App. Ct. 619 , 620 (1993) where the Court observed “that in a multiple party appeal it is only necessary to determine whether any one plaintiff is aggrieved in order to determine the standing issue.” In the case at hand, as parties in interest, the plaintiffs Suresh Pandya and Anil Pandya, continue to enjoy a presumption of standing.

See also, Rafferty v. Santa Maria Hospital, 5 Mass. App. Ct. 624 , 630, n. 6 (1977) where the Court observed as follows: Our determination that Rafferty [a plaintiff] has standing makes it immaterial whether Wagner [a second plaintiff] can be said to have standing in the circumstances of this case.

In view of the foregoing, this court concludes that Brushwood has been unsuccessful in its effort to demonstrate, pursuant to Rule 12 (b)(1), that Mahida is without standing. Moreover, this court sees no basis under Rule 12 (b)(6) to conclude that Mahida has failed to state a claim upon which relief may be granted. Accordingly, it is hereby

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



[Note 1] Brushwood refers to Mahida as “Mahida Hospitality Group, LLC “ notwithstanding that “Mahida Hospitality, LLC” is named as a plaintiff in the complaint.

[Note 2] If not, it would lack standing and would, as a consequence, be subject to a Rule 12 (b) (1) dismissal.

[Note 3] Brushwood raises a fourth issue concerning the propriety of a claim for declaratory relief in conjunction with a G.L. c. 40A, s. 17 appeal. Suffice it to say that said issue has been rendered moot by virtue of the plaintiffs’ Amended Complaint in which the counts for declaratory judgment are directed solely against the Town of Lenox.

[Note 4] Brushwood has, in summary fashion, argued in its supporting memorandum that site plan approval “cannot be appealed until the building inspector issues or denies a building permit.” In so arguing, it fails to cite provisions of the Bylaw relating to site plan review.

[Note 5] The aforementioned Rule 1:28 decision is cited for its persuasive value.

[Note 6] Here, with a right of first refusal.

[Note 7] The plaintiff has not otherwise demonstrated that Mahida is without standing.