The defendant members of the Framingham Zoning Board of Appeals ("Board") have moved to dismiss the first amended complaint in this matter on the dual grounds that the complaint fails to state a claim upon which relief can be granted and that the court is without subject matter jurisdiction because the initial complaint was not timely, and because the action purports to be an appeal pursuant to G. L. c. 40A, §17, which the defendants argue does not govern this action. The plaintiff concedes that G. L. c. 40A, §17 does not apply to this action, and that if it does, the complaint was not timely. The plaintiff proposes to cure the defects in the initial complaint and the first amended complaint by seeking leave to file a second complaint asserting a claim in the nature of certiorari pursuant to G. L. c. 249, §4. The Board counters that even a certiorari claim would be untimely.
For the reasons stated below, the plaintiff's motion to amend is ALLOWED and the plaintiff is given leave to file a second amended complaint within thirty (30) days of the date of this Order; the Board's motion to dismiss is DENIED, provided that if the plaintiff fails to file a second amended complaint within thirty (30) days as provided in this Order, the action will be dismissed. Further, because the court has determined that it does not have subject matter jurisdiction over this action, upon the filing of a second amended complaint within thirty (30) days of the date of this Order, this action will be transferred to the Superior Court. [Note 1]
FACTS
The following facts alleged in the first amended complaint are accepted as true for the purposes of the pending motion to dismiss. Matters submitted by the parties that are outside the pleadings and are not in dispute were also considered by the court in ruling on this Rule 12(b)(1) motion. See Audoire v. Clients' Security Board, 450 Mass. 388 , 390, n. 4 (2008) ("A judge
may consider documents and other materials outside the pleadings when ruling on a rule 12(b)(1) motion.").
The plaintiff operates a gasoline station in Framingham that has featured an illuminated strip of neon lighting on its canopy for the past fifteen years. In 2015, an enforcement officer of the town sent the plaintiff a letter asserting that the existing signage was not in compliance with various aspects of with the town's non-zoning sign bylaw. The plaintiff applied for and received a permit to address the issues raised in the town's letter, and to renovate the strip by replacing the existing neon strip with an LED lighting strip. The new application was denied and the plaintiff appealed to the Board, seeking a variance from the provisions of the sign bylaw.
The Board denied the plaintiff's request for a variance. Prior to ending the public hearing in this matter, the Board asked the plaintiff to request an extension of the date by which the Board was obligated to issue a decision. The extension form provided by the Board for the extension incorrectly provided for "an extension of the date by which the Board must make its decision in this Appeal under G. L. c. 40A and the Zoning Bylaw
" At the end of its decision on the merits, the Board notes that, "Appeals, if any, shall be made pursuant to Sign Bylaw, §1.12.6(f) and shall be filed within sixty (60) days after the date of filing this Decision with the Town Clerk." Section 1.12.6(f) of the Sign Bylaw provides: "Any party aggrieved by a decision of the Zoning Board of Appeals may within sixty (60) days of the filing of such decision appeal the decision to a court of appropriate jurisdiction." The plaintiff filed its complaint in this court in fewer than sixty days following the filing of the decision with the town clerk, but more than sixty days after the hearing at which the Board voted to deny the plaintiff's request for a variance.
DISCUSSION
The Board argues that the first amended complaint, making a claim of appeal pursuant to G. L. c. 40A, §17, must be dismissed because: (1) the sign bylaw is a general bylaw, and therefore appeals from decisions based on the bylaw are not governed by G. L. c. 40A, which provides the exclusive avenue of appeal only for zoning decisions; and (2) even if G. L. c. 40A, §17 provided the proper avenue of appeal, such appeals, by statute, must be filed within twenty days of the date the decision is filed with the town clerk. As the plaintiff conceded at the hearing on these motions, the Board's argument in this regard is well taken. The sign bylaw, adopted as a general bylaw under the police power of the town, is not a zoning bylaw, and accordingly, appeals from decisions made under the bylaw, notwithstanding the understandable confusion created by the Board's references to chapter 40A in the conduct of its hearings, are governed by the certiorari statute, G. L. c. 240, §4, and not by G. L. c. 40A. This conclusion does not end the court's inquiry, because the plaintiff has asked for leave to file a second amended complaint re-casting its claim as one in the nature of certiorari pursuant to G. L. c. 249, §4.
A plaintiff must seek leave of court to amend a complaint after having filed a first amendment, and "leave shall be freely given when justice so requires." Rule 15(a), Mass. R. Civ. P. Although leave shall be freely granted, the decision whether to allow amendment is discretionary with the trial judge, and leave may be denied if there is good reason, which may include, among other reasons, "futility of the amendment." Ramirez v. Graham, 64 Mass. App. Ct. 573 , 579-80 (2005). The Board argues that the proposed amendment is futile, on the grounds that: (1) the complaint, even as a claim under G. L. c. 249, §4, is not timely; and (2) the Land Court does not have subject matter jurisdiction over a certiorari appeal that does not relate to right, title or interest in land, and is not an appeal under zoning or subdivision laws.
I. The Appeal Is Timely.
This action was filed more than sixty days after the hearing at which the Board denied the plaintiff's request for variances, but fewer than sixty days from the date the Board's written decision was filed with the town clerk. The Board cites Carney v. Town of Framingham, 79 Mass. App. Ct. 1129 (2011), a Rule 1:28 "unpublished" decision of the Appeals Court, in support of the proposition that an action in the nature of certiorari must be filed within sixty days after the date of the Board's "last administrative action", i.e., its vote to deny relief, and not after the date of the Board's written memorialization of its action by filing a written decision with the town clerk.
G. L. c. 249, §4 provides that actions in the nature of certiorari "shall be commenced within sixty days next after the proceeding complained of." The nature of the "proceeding complained of" will necessarily depend on the context, and in the particular context complained of in this action, the Board's "last administrative action" constituting a part of its proceedings, is a function of what is required by the sign bylaw under which the Board acted. Both the sign bylaw and the Board's decision explicitly provide that appeals of the Board's decision are to be filed within sixty days after the filing of the Board's decision with the town clerk. Thus, the bylaw dictates that the last necessary administrative action taken by the Board on a petition for a sign variance is the filing of the Board's decision with the town clerk. This is not, as is argued by the Board, an ineffective waiver by the Board of the statute of limitations contained in the statute, but rather a permissible delineation of the procedural framework under the bylaw from which a plaintiff can appeal. Unlike the situation in Carney, in the present case the filing of the Board's decision is a last necessary administrative step, and is not merely a memorialization of the Board's action at the previous hearing. Until the Board filed its decision, or the time within which the Board was allowed to file its decision had expired without a written decision having been issued, there was nothing from which the plaintiff could appeal. Accordingly, the action, having been filed within sixty days after the filing of the decision with the town clerk, was timely.
This conclusion is not only logically required by the procedure outlined in the sign bylaw, it is the only interpretation of the sign bylaw that is possible. To find otherwise would allow the Board to institutionalize in both the bylaw and its decisions an instruction (that appellants may file appeals within sixty days of the filing of the decision with the town clerk) that purposefully misleads applicants into filing an appeal after the limitations period has expired. An interpretation that allows the Board to mislead applicants into waiting until after expiration of the appeal period is not an acceptable or correct interpretation. Even if this result were construed to be a waiver by the Board of the statute of limitations, to refuse to find a waiver here, where the Board itself instructed the plaintiff to file its appeal within sixty days of the filing of the decision with the town clerk, "would frustrate the purposes and policies that (the) statute is designed to advance." Garrity v. Conservation Comm'n of Hingham, 462 Mass. 779 , 787 (2012).
II. The Land Court Does Not Have Subject Matter Jurisdiction Over This Action.
The Board argues that even if the plaintiff asserted an action in the nature of certiorari in a timely manner, the Land Court lacks subject matter jurisdiction to hear such an action, as it is not an action involving a right, title or interest in land, and it does not arise under the subdivision control law, the zoning act, or municipal zoning or subdivision bylaws. The Board's argument requires an examination of: (1) whether the statutory framework grants the Land Court jurisdiction to hear certiorari actions arising under land use ordinances, bylaws or regulations other than those relating to zoning and subdivision control; and; (2) whether the sign bylaw at issue here is a "land use" bylaw within the meaning of G. L. c. 185, §1(r).
a. The Question Whether The Land Court Has Jurisdiction Over Actions In The Nature Of Certiorari Involving Land Use Other Than Zoning And Subdivision Appeals Need Not Be Reached In This Action.
The Land Court's jurisdiction of actions in the nature of certiorari is governed by G. L. c. 185 §1(r), which is part of the Land Court's jurisdictional statute, and by G. L. c. 249, §4, which governs the statutory action in the nature of certiorari and grants concurrent jurisdiction over such actions to the Supreme Judicial Court, the Superior Court, and in certain cases, to the Land Court. The Land Court's limited jurisdiction over actions in the nature of certiorari dates to a 2002 act of the Legislature granting additional concurrent jurisdiction to the Land Court. "An Act Relative to the Concurrent Jurisdiction of the Land Court", St. 2002, c. 393, (the "Act") inserted a new G. L. c. 185, §1(r), and amended G. L. c. 249, §4. Specifically, G. L. c. 185, §1(r) gives the Land Court jurisdiction, concurrently with the Supreme Judicial Court and the Superior Court, over:
Actions brought pursuant to sections 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.
The Act also amended G. L. c. 249, §4, to provide, in relevant part, as follows (the added language is italicized):
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, bylaws or regulations, in the land court.
Thus, each of the statutes was amended to explicitly grant the Land Court concurrent jurisdiction over certiorari appeals arising under the subdivision control law, the zoning act, and local zoning or subdivision ordinances, bylaws or regulations. However, one glaring difference between the two statutes added or amended by the Act is the inclusion of jurisdiction over appeals involving "land-use ordinances, by-laws or regulations" in G. L. c. 185, §1(r), and the absence of the words "land-use" in the corresponding grant of jurisdiction in G. L. c. 249, §4 (and §5, governing actions in the nature of mandamus). This raises the question whether the Land Court has jurisdiction over certiorari actions involving "land-use" ordinances, bylaws or regulations other than those arising in the context of zoning or subdivision control.
"All the statutes must be construed, where capable, so as to constitute a harmonious whole consistent with the legislative purpose disclosed in the new act. Such purpose is to be gleaned from the reasons, where ascertainable, leading to the legislation, from the nature of the subject matter, from the supposed evil to be corrected, and from the objective sought to be attained." Chief Justice for Admin. & Mgmt. of Trial Court v. Office & Prof'l Employees Int'l Union, Local, AFL-CIO, 441 Mass. 620 , 627 (2004), quoting Chief of Police of Dracut v. Dracut, 357 Mass. 492 , 499 (1970). Here, to read G. L. c. 249 §4 and G. L. c. 185 §1(r) harmoniously, these statutes must be interpreted as either both granting jurisdiction over "land-use ordinances, by-laws or regulations," or as both denying such jurisdiction. Two decisions of the Land Court have found that the Land Court has no jurisdiction over such cases. In Janes Properties Ltd.
Partnership v. Town of Groton, 23 LCR 1 (2014) (Piper, J.) and Sayle v. Town of Nantucket Conservation Comm'n, 12 LCR 438 (2004) (Lombardi, J.), judges of this court found no jurisdiction over certiorari appeals involving, respectively, an order of a board of health that a property owner connect to a town sewer, and a non-zoning wetlands bylaw. Sayle was based largely on legislative history demonstrating that wetlands bylaws were explicitly deleted from the coverage of the bill prior to passage. Both decisions were based at least partly on a conclusion that the deletion of the words "land-use" from the amendment to G. L. c. 249, §4, while leaving those words in the amendment to G. L. c. 185, §1(r), was probably an oversight. Another interpretation, explored below, need not be pursued to a conclusion here because the court concludes that whether or not the court has jurisdiction over "land-use" appeals in the nature of certiorari that do not involve zoning or subdivision bylaws, the sign bylaw at issue here, as applied, is not a bylaw involving land use.
Where two parallel provisions grant jurisdiction, one more expansive than the other, one way to give full effect to the Legislature's chosen language is to broadly adopt all areas of jurisdiction contained in both statutes. Adopting only the narrower statute would necessitate entirely ignoring portions of enacted legislation in its broader counterpart. "A statute should be construed so as to give effect to each word, and no word shall be regarded as surplusage." Recinos v. Escobar, 473 Mass. 734 , 74243 (2016), quoting Ropes & Gray LLP v. Jalbert, 454 Mass. 407 , 412 (2009). In order to give effect to all of the language added by the Act, and not to reject it as mere surplusage, it may be necessary to construe the phrase "land-use ordinances, by- laws or regulations" as it appears in G. L. c. 185 §1(r) as conferring a grant of jurisdiction over actions in the nature of certiorari other than those arising under laws relating to zoning and subdivision control. There would be no inherent conflict between the two sections at issue created or amended by adopting this broader interpretation. The grant of jurisdiction in G. L. c. 185, §1(r) is not accomplished in a vacuum. The section explicitly provides that its grant of jurisdiction pertains to land use actions that are brought pursuant to G. L. c. 249, §4. The absence of an explicit recognition of this grant of jurisdiction in G. L. c. 249, §4 itself does not negate the Legislature's definitive statement in G.L. c. 185 §1(r) that actions "which arise under or involve
land-use ordinances, by-laws or regulations", and which are "brought pursuant to sections 4 or 5 of chapter 249", are within the jurisdiction of the Land Court. The additional phrase in G. L. c. 185 §1(r) need not be construed as impliedly amending G. L. c. 249, §4, because it is an explicit grant of jurisdiction with an explicit incorporation by reference of G. L. c. 249, §4. Rather than reading the words "land use" into G. L. c. 249, §4, the court simply recognizes and gives effect to their presence in G. L. c. 185, §1(r), and thus does not run afoul of the principle that, "where the Legislature has employed specific language in one paragraph, but not in another, the language should not be implied where it is not present." Commonwealth v. Galvin, 388 Mass. 326 , 330 (1983), quoting Beeler v. Downey, 387 Mass. 609 , 616 (1982).
This result is not changed by acknowledging that the phrase "land-use" (as well as the word "wetlands") does not appear in the amended version of G. L. c. 249 §4, as a result of the Massachusetts Senate's decision to remove it during the legislative process. See Massachusetts Senate Journal, July 29, 2002. It is true that typically "where the Legislature has deleted such language, apparently purposefully, the current version of the statute cannot be interpreted to include the rejected requirement." Abrahamson v. Estate of LeBold, 89 Mass. App. Ct. 223 , 227, (2016), review denied, 475 Mass. 1102 (Sept. 16, 2016). However, the grant of jurisdiction over "land-use ordinances" may not truly be a rejected requirement, as it nonetheless remained in the Act through the adoption of G. L. c. 185 §1(r), and its presence in G. L. c. 185 §1(r) can be read harmoniously with its absence in G. L. c. 249, §4. Where the Legislature thus chose to enact legislation that included the grant of jurisdiction over "land-use" matters, the inclusion of the words "land-use" is not such as would constitute "obvious clerical error" so as to allow the court to ignore the literal language of the statute, as it is certainly possible to read the statutes clearly and harmoniously despite the omission of the words in G. L. c. 249, §4. See Burke v. Bd. of Appeal on Motor Vehicle Liab. Policies & Bonds, 90 Mass. App. Ct. 203 , 207 (2016).
Notwithstanding this analysis, recognizing the departure this conclusion would represent from Sayle and Jaynes, the court finds it unnecessary to finally determine whether the Land Court generally has jurisdiction over actions in the nature of certiorari involving "land-use ordinances, by-laws or regulations" other than zoning and subdivision laws. This is so because, as is discussed below, the sign bylaw, as applied here, does not implicate "land-use" within the meaning of G. L. c. 185, §1(r).
b. This Action Does Not Involve A "Land-Use" Bylaw Within The Meaning Of The Act.
The court concludes that this action does not involve a "land-use" bylaw within the meaning of G. L. c. 185, §1(r). According to the allegations of the plaintiff's first amended complaint, the plaintiff applied to the Board for a variance from the sign bylaw to install a canopy sign consisting of an illuminated lighting strip, as well as a "third canopy logo sign." It is the denial of the requested variances for these signs that is the subject of the plaintiff's appeal. The Supreme Judicial Court has observed that not all ordinances or bylaws that regulate land use are zoning laws. Lovequist v. Conservation Comm'n of Town of Dennis, 379 Mass. 7 , 12 (1979). The question then, is whether the sign bylaw appeal presently before the court arises under such a non-zoning regulation of land use.
"A fundamental tenet of statutory interpretation is that statutory language should be given effect consistent with its plain meaning and in light of the aim of the Legislature unless to do so would achieve an illogical result." Sullivan v. Brookline, 435 Mass. 353 , 360 (2001). A bylaw that does not implicate the use of land may not be a "land-use" bylaw, notwithstanding that it may be administered by the building inspector and that the activity it regulates takes place on the plaintiff's property. Thus, it is necessary to establish whether the sign bylaw as applied in the present case, actually implicates the use of land. Though a term as general as "land use" defies easy definition, the test for evaluating changes to nonconforming uses supplies a readily applicable rubric for determining when an action implicates the use of land. To determine whether there has been a change in a nonconforming use, the court looks to alterations to the nature, purpose, quality, character, and degree of the activity taking place on the land. See Powers v. Building Inspector of Barnstable, 363 Mass. 648 , 653 (1973). The essential goal of the so-called Powers test is to evaluate if an owner's actions on his or her land impact the nature and character of the use of the land. The issue presented in the present case determining whether a bylaw will impact the actual use of the land revolves around the same central question of what actually effects a change in the use of the land. Accordingly, just as a change to the actual use of land stems from the nature, purpose, quality, character, and degree of an activity, a bylaw regulating the actual use of land would do the same. A land use bylaw may thus be defined as one that regulates these intrinsic features of the activity taking place on the land.
This test is consistent with the courts' prior consideration of what constitutes a regulation of use. In CHR General v. City of Newton, 387 Mass. 351 (1982), the Supreme Judicial Court struck down a zoning ordinance purporting to regulate by special permit the conversion of multi- family rental apartments to condominiums. The Court pointed out that a "fundamental principle of zoning [is that] it deals basically with the use, without regard to the ownership, of the property involved or who may be the operator of the use." Id. at 356, quoting 1 A. Rathkopf, Zoning and Planning § 1.04, at 1-21 (4th ed. 1982). The invalid zoning ordinance in CHR General did not regulate the use of land, as it did not regulate the underlying nature, purpose, quality, character, or degree of use; whether the ordinance prevented or allowed a particular type of ownership, the residential use of the land would remain fundamentally unaffected. Similarly, the sign bylaw as applied here has no impact on the underlying use of the property. Plaintiff's property is used as a gasoline station. The decorative lighting on the canopy and the addition of a third logo sign have no effect on the nature or purpose of this use, as the property will continue to be used as a gasoline station with no change in the manner, nature, or intensity of the operation as a result of the changed lighting and signage. The quality, character, and degree of the use is unaffected, as the manner in which it may be operated and the extent of its operation are unrelated to the proposed changes in lighting and signage. Either by allowing or denying the requested illuminated lighting strip or a third logo sign, the Board would not have been purporting to affect in any manner the use or operation of the plaintiff's property as a gasoline station, which may continue regardless of the denial of relief by the Board, and which would have continued in the same manner had the relief been granted. At least as applied here, the sign bylaw is not a land use ordinance within the meaning of G. L. c. 185 §1(r), and the Land Court accordingly lacks jurisdiction over plaintiff's action.
CONCLUSION
For the reasons stated above, the plaintiff's motion to amend is ALLOWED, and the plaintiff is given leave to file a second amended complaint basing its action on G. L. c. 249, §4, within thirty (30) days of the date of this Order; and the Board's motion to dismiss is DENIED, provided that if plaintiff fails to file a second amended complaint as provided in this Order, the action will be DISMISSED. Furthermore, based on the court's determination that it lacks subject matter jurisdiction over this action, upon plaintiff's filing of a second amended complaint within thirty (30) days of this Order, this action shall be TRANSFERRED to the Superior Court for Middlesex County, pursuant to G. L. c. 185, §15, second paragraph.
So Ordered.
COLBEA ENTERPRISES, LLC, v. FRAMINGHAM ZONING BOARD OF APPEALS, and PHILLIP R. OTTAVIANI, JR., SUSAN CRAIGHEAD, STEPHEN MELTZER, EDWARD COSGROVE, ROBERT SNIDER and JOSEPH NORTON, in their capacity as Members of the Framingham Zoning Board of Appeals.