Plaintiff North Charles Mental Health Research and Training Foundation, Inc. (Plaintiff or North Charles) initiated this action on March 16, 2016, seeking a determination and declaratory judgment pursuant to G. L. c. 240, § 14A and G. L. c. 231A, respectively, that its use of property located at 45 Washburn Avenue in Cambridge (Property) for administrative offices and counseling services constitutes "General Office" use under the Zoning Ordinance of the City of Cambridge (Ordinance). This action is one of several lawsuits relating to Plaintiff's use of the Property; all others have been filed in Middlesex Superior Court.
Based on the pleadings and other documents properly before the court, Plaintiff is a non- profit organization that provides mental health and addiction counseling services, with several locations in Cambridge. Plaintiff currently offers the following services at the Property: group and family counseling, case management, and cognitive behavioral counseling sessions in conjunction with opioid addition treatments that are provided at Cambridge City Hospital. The Property is located in a Residential "B" zoning district pursuant to the Ordinance, in which general office, medical office, and social service center uses are not allowed without a special permit. Both parties agree that "general office" use is allowed at the Property as a pre-existing nonconforming use based on the prior uses of the Property.
Defendant City of Cambridge (Defendant) moved to dismiss pursuant to Mass. R. Civ. P. 12(b)(1) on April 19, 2016, contending that this court lacks subject matter jurisdiction because Plaintiff failed to exhaust its administrative remedies. A hearing was held on June 8, 2016, at which all parties were heard. At oral argument, the court raised the issue of a motion to dismiss due to the pendency of a prior action pursuant to Mass. R. Civ. P. 12(b)(9), and allowed both parties additional time to brief that issue. After receiving the parties' submissions, the court took the motion under advisement.
I. Motion to Dismiss 12(b)(1)
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 reasonably be 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). For the reasons discussed below, Defendant's 12 (b)(1) Motion to Dismiss is DENIED.
The following facts are shown by the pleadings, augmented by the documents filed by all parties in connection with the Board's motion:
1. Plaintiff currently uses the Property as a drug rehabilitation and counseling services center.
2. The vast majority of services provided at the Property are performed by licensed social workers. There are also physicians engaged by Plaintiff who write prescriptions for clients of North Charles.
3. The Property is located in a Residential "B" zoning district. Pursuant to the City of Cambridge Zoning Ordinance (Ordinance), Residential "B" zones do not allow for use of properties for general office, medical office, or social service center uses without a special permit.
4. Notwithstanding the requirement that "general office" within the Residence "B" zoning district requires a special permit, in the case of the Property, general office use is allowed as a pre-existing, nonconforming use. [Note 1]
5. The Property was previously used under the heading "General Office" by a telecommunications software company, a financial services company, and a toy manufacturing company.
6. On April 17, 2015, the Commissioner of the City's Inspectional Services Department, (Commissioner), issued a Certificate of Occupancy to Plaintiff for "General Office" use.
7. Three months later, on July 30, 2015, the Commissioner sent a "Cease and Desist" letter to Plaintiff, ordering that any use of the Property other than "General Office use as a pre-existing non-conforming use" must immediately cease and desist (July 30th Order).
8. On August 26, 2015, Plaintiff filed a notice of appeal of the July 30th Order to the Cambridge Board of Zoning Appeal (Board).
9. On September 24, 2015, the Board held a hearing on Plaintiff's appeal of the July 30th Order. The Board subsequently upheld it and filed its decision with the City Clerk on November 6, 2015 (Cease and Desist Decision).
Enforcement Action Superior Court Case
10. Before the appeal period from the Board's Cease and Desist Decision expired, on November 10, 2015, the Commissioner filed an enforcement action in Middlesex Superior Court (Superior Court), pursuant to G. L. c. 40A, § 7, seeking preliminary and permanent injunctive relief enjoining Plaintiff's use of the Property. [Note 2] (Enforcement Action). [Note 3]
11. Shortly thereafter, the Superior Court held a hearing on the Commissioner's motion for preliminary injunction, and, on February 1, 2016, issued its denial of the motion for preliminary injunction. North Charles, defendant in the Enforcement Action, filed its answer and counterclaim on March 22, 2016.
a. In Count II of the counterclaim, North Charles seeks a declaratory judgment pursuant to G. L. c. 231A, that use of the Property for cognitive behavioral therapy sessions constitutes "General Office" use. [Note 4]
Cease and Desist Superior Court Case
12. On November 24, 2015, North Charles filed an appeal of the Board's Cease and Desist Decision, pursuant to G. L. c. 40A, § 17, in Middlesex Superior Court. [Note 5] (Cease and Desist Case).
a. In Count III of the Cease and Desist Case, Plaintiff sought a declaration pursuant to G. L. c. 231A, that "use of the Property for cognitive behavioral therapy sessions constitutes General Office' use."
13. Plaintiff did not provide notice of the appeal to the City Clerk's office until December 8, 2015.
Special Permit Superior Court Case
14. On the same day it filed the Cease and Desist Case, Plaintiff applied to the Board for a special permit allowing Plaintiff to use the Property as either 1) a nonprofit educational or other institutional use; 2) a healthcare facility use; or 3) a social service center use, pursuant to the Ordinance. After due proceedings, the Board denied this application.
15. On March 18, 2016, North Charles appealed the Board's denial pursuant to G. L. c. 40A, § 17, in Middlesex Superior Court [Note 6] (Special Permit Case).
a. In Count II of the Special Permit Case, North Charles sought a declaration pursuant to G. L. c. 231A, that "use of the Property for administrative offices and counseling services constitutes General Office' use and no special permits are required."
b. Alternatively, North Charles sought a declaration that it was "entitled to a special permit to continue to provide counseling services at the Property as: (i) a nonprofit educational or other institutional use; (ii) other health care facility; or (iii) social service center."
16. According to the Superior Court docket, on August 29, 2016, the Middlesex Superior Court (Kazanjian, J.) entered the following order:
"The defendants' motion to dismiss the Cease and Desist Case (Civil Action No. 1581CV06529) is ALLOWED. The defendants' motion to dismiss the Special Permit Case (Civil Action No. 1681CV00795) is ALLOWED, in part, with respect to Count II (declaratory judgment), but only to the extent that North Charles seeks declaratory judgment that use of the Property for administrative offices and counseling services constitutes General Office' use and no special permits are required.' The motion is also ALLOWED with respect to Count IV (violation of due process). The motion is DENIED with respect to Count III (discrimination). The Cease and Desist Case (No. 1581CV06529) having been dismissed, the Special Permit Case (No. 1681CV00795) and the [Enforcement Action] (No. 1581CV06298) will be consolidated for pre-trial purposes only in the B Session, Middlesex Superior Court, Woburn."
17. The consolidated Special Permit Case and Enforcement Action are currently pending, with no further docket entries following the above entry.
18. On March 16, 2016, Plaintiff filed this Land Court action, seeking in Count I of a two-count complaint a determination pursuant to G. L. c. 240, § 14A, that its "current use of the Property for administrative offices and counseling services constitutes General Office' use under the [Ordinance], which is a permitted use as of right under the [Ordinance]." In Count II of its complaint, Plaintiff seeks a declaratory judgment pursuant to G. L. c. 231A, that its "current use of the Property for administrative offices and counseling services constitutes General Office' use, which is a permitted use as of right."
II. Plaintiff's G. L. c. 240, § 14A Claim Is Not Barred by Its Pending G. L. c. 40A, § 17 Claims in Superior Court.
Defendant argues that this court lacks subject matter jurisdiction because Plaintiff has not yet exhausted its administrative remedies, and that its claim under G. L. c. 240, § 14A is merely an attempt to circumvent the possibility that procedural missteps in its Cease and Desist Case will result in its dismissal. Specifically, Defendant argues in the Cease and Desist Case that Plaintiff failed to provide notice of its appeal to the City Clerk within twenty days of the issuance of the Board's decision in compliance with G. L. c. 40A, § 17.
Under G. L. c. 40A, § 17, an appeal must be commenced within twenty days of the filing of a local board's decision with the city or town clerk. The statute also requires that notice of the action, with a copy of the filed complaint, be given to the city or town clerk within the same twenty-day period. These requirements are jurisdictional and are strictly enforced. Pierce v. Bd. of Appeals of Carver, 369 Mass. 804 , 808 (1986); see also Bingham v. City Council of Fitchburg, 52 Mass. App. Ct. 566 , 568 (2001). Plaintiff did not file notice of the Cease and Desist Case with the City Clerk within the required twenty days, prompting defendants in that case to file a motion to dismiss for lack of subject matter jurisdiction on February 16, 2016 (as well as moving to dismiss Count II of the Special Permit Case). At the time of oral argument in front of the Land Court on June 8, 2016, that motion to dismiss had not yet been argued and decided in Superior Court. A decision issued on August 29, 2016, granting the motion to dismiss in the Cease and Desist Case and also dismissing Count II of the Special Permit Case (declaratory judgment). See fact paragraph 16. [Note 7] By filing the instant action in the Land Court, Defendant argues Plaintiff is now seeking to sidestep the appeals process under G. L. c. 40A, § 17 and take a "second bite of the apple" should its Cease and Desist Case be dismissed (as it ultimately was).
G. L. c. 240, § 14A vests jurisdiction in the Land Court over cases concerning the validity of zoning ordinances or bylaws, or the extent to which such ordinances or bylaws affect a proposed use of property. Banquer Realty Co. v. Acting Bldg. Comm'r of Boston, 389 Mass. 565 , 570 (1983). The statute provides, in relevant part,
"[t]he owner of a freehold estate in possession in land may bring a petition in the land court against a city or town wherein such land is situated, which shall not be open to objection on the ground that a mere judgment, order or decree is sought, for determination as to the validity of a municipal ordinance, by-law or regulation, passed or adopted under the provisions of chapter forty A or under any special law relating to zoning, so called, 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, including alterations or repairs, or for determination of the extent to which any such municipal ordinance, by-law or regulation 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. . . . The court may make binding determinations of right interpreting such ordinances, by-laws or regulations whether any consequential judgment or relief is or could be claimed or not."
The statute provides a mechanism through which property owners may seek a determination either of the extent to which a zoning ordinance affects their proposed use of their property, or of the validity of a particular zoning ordinance that purports to limit the use of such property. It cannot be used to determine the scope of or provide a judicial interpretation of special permits, variances, or presumably other municipal board decisions. Whitinsville Ret. Soc'y, Inc. v. Town of Northbridge, 394 Mass. 757 , 762 (1985).
Here, Plaintiff seeks a declaration that its current use of the Property for administrative offices and counseling services falls under "general office" use, claiming this use is a "permitted use as of right." Because both parties agree that "general office" use is allowed at the Property as a pre-existing nonconforming use, the court reads Plaintiff's claim that it is a permitted use "as of right" as a claim it is a continuation of the Property's prior office uses, which are all within the "General Office" use category.
Defendant asserts Plaintiff is simply rebranding its G. L. c. 40A, § 17 appeal in an attempt to bypass the normal statutory avenue of judicial review. Because Plaintiff has initiated but not yet completed its Enforcement Action and Special Permit Cases, Defendant claims permitting a separate G. L. c. 240, § 14A claim to proceed would allow an avoidance of the appellate route required in zoning disputes. This court disagrees.
Plaintiff seeks a determination that its current use constitutes "general office" use, allowed as a pre-existing nonconforming use under the Ordinance. This is a separate and distinct question from the issues remaining in the Superior Court litigation. Part of Count II in the Special Permit Case, in which Plaintiff appealed the Board's denial of a special permit allowing use of the Property as either 1) a nonprofit educational or other institutional use; 2) a healthcare facility use; or 3) a social service center use pursuant to the Ordinance, survived the motion to dismiss. The appeal of a denial of a special permit is distinguishable from the issue in the instant action. Plaintiff's request in the Land Court is the type of question that is reviewed under G. L. c. 240, § 14A. See Banquer, 389 Mass. at 570 (stating the Land Court has jurisdiction under G. L. c. 240, § 14A, when plaintiff seeks a determination of the extent to which a specific zoning code provision affects a proposed use); Derby Ref. Co. v. Chelsea, 407 Mass. 703 , 704 & n.3 (1990) (allowing an action pursuant to G. L. c. 240, § 14A to determine whether a new zoning ordinance applied to the property at issue, or whether prior nonconforming use protected the property from the new ordinance).
Even though Plaintiff initiated the administrative process by applying for a building permit and, after denial of that permit, a special permit, it is not required to exhaust those administrative remedies before turning to G. L. c. 240, § 14A, with a different theory. Although Defendant relies heavily on Whitinsville, that case only excludes cases seeking judicial interpretation of special permits or other board determinations, and does not control when a party, through a properly pleaded complaint, seeks a determination as to the validity or extent of an ordinance. Cohen v. City of Somerville, 87 Mass. App. Ct. 1112 (2015), (Mem. & Order Pursuant to Rule 1:28); Gamsey v. Bldg. Inspector of Chatham, 28 Mass. App. Ct. 614 , 616 (1990). Here, Plaintiff is not seeking a determination of the scope of a special permit or a previously issued variance. Instead, Plaintiff seeks a determination that its actual use of the Property falls under "General Office" use, as defined in the Ordinance.
III. Plaintiff's Action Is Not Precluded Due To A Prior Pending Action
Mass R. Civ. P. 12(b)(9) provides for the dismissal of a second action in which the parties and the issues are the same as those in a prior action still pending in a court of this Commonwealth. See Harvard Cmty. Health Plan, Inc. v. Zack, 33 Mass. App. Ct. 649 , 652 (1992). This rule prohibits the long-barred practice of claim-splitting. Keen v. Western New England College, 23 Mass. App. Ct. 84 , 87 (1986). Dismissal is warranted when the parties and issues in the prior action are identical to those in the subsequent one. Lyons v. Duncan, 81 Mass. App. Ct. 766 , 770-771 (2012). Claims are considered the same when the operative facts for each are the same, and a case is considered pending if a judgment has not entered or, if entered, the judgment is on appeal. Id. at 771.
Plaintiff in this action asserts claims against the City of Cambridge, as required under G. L. c. 240, § 14A, while the Enforcement Action and Special Permit Case assert claims against municipal officers of Cambridge and the members of the Board. The issues in this case also differ in slight but important ways from those asserted in the prior cases. An action under G. L. c. 40A, § 17 challenges a board's decision whether a use complies with a zoning ordinance, whereas a G. L. c. 240, § 14A claim requires a determination as to the validity of the ordinance itself or, as in this case, a determination as to the applicability of the ordinance provision to a plaintiff's property. Furthermore, a cause of action under G. L. c. 240, § 14A may be brought exclusively in the Land Court, preventing Plaintiff from raising this issue in Superior Court. While the ultimate relief Plaintiff seeks - permission to use the Property as a "general office" use- is the same in both this action and the related Superior Court actions, this action under G. L. c. 240, § 14A is different in kind from an appeal of a board decision. Unlike the Land Court, the Board does not have jurisdiction to make binding determinations as to the validity or extent of the applicability of its Ordinances, even though such determination is often inherently a part of the Board's decision making. Because the parties and issues in this action differ from those raised in Superior Court, and because the Superior Court lacks jurisdiction over G. L. c. 240, § 14A claims, Defendant's supplemental motion to dismiss pursuant to Mass. R. Civ. P. 12(b)(9) hereby is DENIED.
Accordingly, for the reasons state above, Defendant's Motion to Dismiss is DENIED. A telephone conference is scheduled for November 30, 2016 at 9:15 a.m., to discuss the status of this case, and whether an interdepartmental assignment, pursuant to G. L. c. 211B, § 9 authorizing a justice of the Superior Court to sit as a justice of the Land Court for purposes of hearing all claims, or vice versa, is appropriate.
[Note 1] This is an agreed fact, but the record does not establish how the parties reached agreement on the status of the use.
[Note 2] Comm'r of the Cambridge Inspectional Servs. v. North Charles Mental Health Research and Training Foundation, Inc., 1581-CV-06298.
[Note 3] The parties in their briefing refer to this case as the Commissioner's Case. For ease of reference in this decision, the court refers to it as the Enforcement Action.
[Note 4] It is unclear from the docket whether this counterclaim is still pending.
[Note 5] North Charles Mental Health Research and Training Foundation, Inc. v. City of Cambridge Bd. of Zoning Appeals, 1581-CV-06529.
[Note 6] North Charles Mental Health Research and Training Foundation, Inc. v. City of Cambridge Bd. of Zoning Appeals, 1681-CV-00795. According to the parties' agreed facts, this action was filed on March 16, 2016, and plaintiff's counsel of record in that action signed and dated the Civil Action Cover Sheet March 16, 2016. However, the Superior Court docket reflects a filing date of March 18, 2016.
[Note 7] The court may take judicial notice of the docket entries and papers filed in separate cases, but not of facts or evidence in those separate cases. Home Depot v. Kardas, 81 Mass. App. Ct. 27 , 28 (2011); Howe v. Prokop, 21 Mass. App. Ct. 919 , 920 (1985).