NORTH CHARLES MENTAL HEALTH RESEARCH AND TRAINING FOUNDATION, INC. and WASHBURN AVENUE REALTY ASSOCIATES, LLC, v. CITY OF CAMBRIDGE.

I. INTRODUCTION

On March 16, 2016, North Charles Mental Health Research and Training Foundation, Inc. (North Charles) filed an unverified two-count petition against the City of Cambridge (City) pursuant to G. L. c. 240, § 14A (Section 14A), and G. L. c. 231A, seeking a determination that its use of property located at 54 Washburn Avenue, Cambridge (Property) constitutes a "General Office" use under the Zoning Ordinance of the City of Cambridge (Ordinance). [Note 1] North Charles is a non-profit corporation organized under the laws of the Commonwealth of Massachusetts with its principal offices at the Property. The City is a duly constituted municipal corporation with a principal address at 795 Massachusetts Avenue, Cambridge. The Property is owned by Washburn Avenue Realty Associates, LLC (Washburn Associates).

II. PROCEDURAL HISTORY

This action is one of four lawsuits relating to the Property. Three complaints were filed in Middlesex Superior Court, one of which has been dismissed, while the remaining two actions have been transferred to this court.

In the present matter, the parties agreed to submit the following documents in conformity with Superior Court Rule 9A: (1) Motion for Summary Judgment of Petitioner North Charles Mental Health Research and Training Foundations, Inc.; (2) North Charles' Memorandum in Support of Motion for Summary Judgment; (3) Respondent City of Cambridge's Opposition to Petitioner North Charles Mental Health Research and Training Foundations, Inc.'s Motion for Summary Judgment; (4) Reply of North Charles to City's Opposition to Motion for Summary Judgment; (5) Respondent City of Cambridge's Response to Petitioner North Charles' Additional Statement of Facts; (6) Respondent City of Cambridge's Motion for Summary Judgment; (7) Respondent's Memorandum in Support of Respondent City of Cambridge's Motion for Summary Judgment, (8) Respondent City of Cambridge's Additional Statement of Facts in Support of City's Motion for Summary Judgment; (9) Appendix Index for Respondent City of Cambridge's Motion for Summary Judgment Pursuant to Mass. R. Civ. P. 56; (10) North Charles's Memorandum in Opposition to City of Cambridge's Motion for Summary Judgment; and (11) Joint Statement of Facts (Joint Statement).

The parties appeared on July 31, 2018, and argued their respective summary judgment motions. During the hearing, I raised various issues with the parties and directed them to submit memoranda in response to those issues. At the conclusion of oral argument, I took the motions under advisement.

I posed four questions to the parties to address after the hearing. First, I asked whether Realty Associates had assigned its rights as owner of the Property under Section 14A to North Charles, and, if so, what the source of its authority was to do so. Second, I inquired whether an earlier order of the court (Scheier, J.) stands as the "law of the case." Third, I asked whether the scope of the summary judgment record is limited to the Joint Statement. Finally, I questioned whether the prescription writing and physical examinations taking place at the Property should be treated as accessory uses under the Ordinance. On August 27, 2018, North Charles filed a post-hearing memorandum responding to these questions. The City submitted its memorandum on September 27, 2018.

A. Assignment of Rights

Having read the parties' submissions, I resolved the first question by issuing Order on Assignment of Rights Under G. L. c. 240, § 14A on October 5, 2018. In response to that order, North Charles filed on November 15, 2018, a motion to add Washburn Associates as an additional party plaintiff (motion to add) and an affidavit of G. Steven Kokinos, resident agent and manager of Washburn Associates. The City did not oppose the motion to add. Pursuant to Rule 6 of the Rules of the Land Court (2005), I allowed the motion to add on November 27, 2018.

B. Law of the Case

The second question pertained to the preclusive effect of an order issued on October 28, 2016, denying the City's motion to dismiss. In its motion, the City contended that North Charles had failed to exhaust administrative remedies before bringing the instant action under Section 14A. The City argued North Charles could not circumvent the process to achieve the same result under a different statute. [Note 2] North Charles responded that exhaustion is not a prerequisite to bringing an independent claim under Section 14A. Additionally, North Charles maintained that the instant action involves a different named defendant, a unique procedural posture, and a distinct factual focus from the Superior Court cases. [Note 3]

The court (Scheier, J.) ruled in favor of North Charles on the issue of exhaustion and accepted its argument that dismissal based on Mass. R. Civ. P 12 (b) (9) was not warranted. In addition to the parties being different, the court found that the issues in the instant action "differ[ed] in slight but important ways."

Under the law of the case doctrine, courts "need not . . . entertain[]" a motion after denying a prior motion based on the same grounds. Peterson v. Hopson, 306 Mass. 597 , 600 (1940). [Note 4] That a different judge of the same court issued the prior ruling does not affect "the sound rule[ ] that another judge has all the powers that the judge who originally acted would have." Id. at 604.

Nevertheless, "[a] judge should hesitate to undo his [or her] own work[,] [and] [s]till more should he [or she] hesitate to undo the work of another judge." Id. at 603. "An issue 'once decided, should not be reopened "unless the evidence on a subsequent trial was substantially different, controlling authority has since made a contrary decision of the law applicable to such issues, or the decision was clearly erroneous and would work a manifest injustice."'" King v. Driscoll, 424 Mass. 1 , 8 (1996), quoting United States v. Rivera-Martinez, 931 F.2d 148, 151 (1st Cir.), cert. denied, 502 U.S. 862 (1991) (internal citation omitted). See Stepanian v. Saraceno, 24 LCR 8 , 11 (2016) (Misc. Case No. 10 MISC 443263) (Speicher, J.) (accepting prior judge's ruling as law of case).

In the instant action, there does not appear to be a change in circumstances that would warrant a different result on the motion to dismiss, nor does the prior order "work a manifest injustice." Consequently, I accept the prior ruling on the motion to dismiss as the law of the case.

C. Summary Judgment Record

The third question posed to the parties pertained to the scope of the summary judgment record. North Charles and the City filed the Joint Statement on November 22, 2017 (and refiled it on May 4, 2018). During a telephonic conference call on June 7, 2018, the court (Scheier, J.) asked the parties whether the Joint Statement was intended to be the record for summary judgment purposes. The docket entry summarizing the conference call states the parties agreed that "the Agreed Statement will not be augmented and stands as the record of material facts for the purpose of the cross motions for summary judgment." [Note 5]

In its post-hearing memorandum, North Charles argues that supplemental documents submitted with the summary judgment motion were intended to support the facts in the Joint Statement. North Charles refers to the additional exhibits as "background facts." Based on the agreement that the Joint Statement was to serve as the full record for summary judgment, the City insists that no additional information should be considered. [Note 6] Furthermore, the City contends that "background facts" beyond those contained in the Joint Statement are not material facts. "For purposes of . . . summary judgment . . . , the existence of disputed facts is consequential only if those facts have a material bearing on [the] disposition of the case." Hogan v. Riemer, 35 Mass. App. Ct. 360 , 364 (1993), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248 (1986). Thus, immaterial background facts are not being considered in this decision.

Generally, the summary judgment record consists of "pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any." Community Nat. Bank v. Dawes, 369 Mass. 550 , 553 (1976), quoting Mass. R. Civ. P. 56(c); See Rule 4 of the Rules of the Land Court (2005). Where the parties, however, have created a joint statement of facts, such statement can constitute the record for summary judgment purposes. See Deutsche Bank National Trust Company for GSAMP Trust 2005-HE4 v. Wozny, 25 LCR 796 , 797 (2017) (Case No. 17 MISC 000170) (Scheier, J.) (using the parties' joint statement of agreed facts as the factual basis for summary judgment determination).

Here, as in Deutsche Bank, the parties have collaborated in creating the Joint Statement and have agreed to the facts contained in the document. Since they previously consented to using the Joint Statement as the full record for summary judgment, the parties are bound by their agreement. Accordingly, I will recognize the Joint Statement as providing the factual framework for deciding the summary judgment motions.

D. Accessory Use

The final issue the parties briefed in their post-hearing memoranda addresses the issue whether the prescription writing and physical examinations are accessory uses to a "General Office" use. To answer that question, one must first resolve the ultimate issue in this case of how to classify the activities of North Charles at the Property—whether they constitute a "General Office" use or belong in a different use classification. The facts and discussion that follow address this issue.

II. FACTS [Note 7]

The Property is located in a Residence B zoning district under the Ordinance. It consists of a 10,000 square-foot, two-story structure on a 14,670 square-foot lot. In February 2015, North Charles executed a ten-year lease for the Property with a five-year option to extend (Lease). Joint Statement B.4., C.5-6.

Under Section 4.34, neither a "General Office" use nor "an office of a physician, dentist or other medical practitioner that is not located in a clinic listed under Section 4.33(d)" is permitted in a Residence B district. [Note 8] Joint Statement C.7., D.11. The Ordinance, however, fails to define "General Office." Joint Statement D.10

For health care facilities in the Residence B district, Section 4.33(d) requires compliance with the Institutional Use Regulations (IUR) of Section 4.50. Similarly, IUR applies to a social service center or community center in the Residence B district. [Note 9] Section 4.33(e). In pertinent part, Section 4.52 states the purpose of IUR is

to protect lower density residential neighborhoods from unlimited expansion of institutional activities . . . , to minimize the development of activities which are different from and incompatible with activity patterns customarily found in lower density residential neighborhoods and to provide a framework for allowing those institutions which are compatible with residential neighborhoods to locate and expand there.

According to Section 4.55, institutional uses within five certain Residence districts, including Residence B, are governed by the Table of Institutional Use Regulations (IUR Table) found in Subsection 4.56. Subsection e. of the IUR Table (Health Care Facilities) specifies that a clinic affiliated with a hospital or an accredited university medical school is a prohibited use, while a clinic connected to a community center or one not affiliated with any other institution must obtain a special permit. Additionally, Subsection f. of the IUR Table (Social Service Facilities) indicates a social service center may be permitted with a special permit, but community centers are prohibited.

At the time North Charles entered into the Lease, a "General Office" use was not allowed under the Ordinance "but was allowed at the Property as a pre-existing, non-conforming use." Joint Statement C.8. Prior occupants of the Property include: (a) Charles P. Blouin Refrigeration, Inc., a contracting firm focused on HVAC and sheet metal design and servicing, from 1967-1982; (b) Thomas G. Gallagher, Inc, a mechanical contracting firm, from 1982-2006; (c) 54 Washburn, LLC, owner of the Property that made renovations from 2006-2008 for Hands on Toys, Inc. to design toys in its offices; and (d) Fuze f/k/a Thinking Phones, a "cloud" telecommunications service provider, from 2008-2014. Joint Statement F. 20-27.

In order for North Charles to move its operations to the Property, it needed to create additional office spaces and make certain improvements to comply with the Building Code, which required North Charles to apply for a building permit (Build Out Process). Joint Statement G. 42. During the Build Out Process, North Charles constructed a medical examination room, a medical records room, two doctors' offices, seven offices, twenty-three consultation rooms, and a waiting area, all at a cost exceeding $300,000. Joint Statement G. 43- 44.

On April 17, 2015, the Cambridge Inspectional Services Department (ISD) issued a building permit to North Charles, followed by a Certificate of Use and Occupancy (CUO) on June 9, 2015. Joint Statement E. 16, 17. [Note 10] The ISD Commissioner sent a letter to North Charles on July 30, 2015, stating:

This office has received several complaints, that the [Property] is used for a [sic] drug rehabilitation and counseling services. The [Property] is in a Residence B Zone and the occupancy permit issued for this property is for "General Office" use as a pre-existing non-conforming use. Therefore, use of the building for any other use than permitted by the occupancy permit must cease & desist immediately.

(cease and desist order). Joint Statement E. 18. [Note 11]

The Joint Statement describes in detail North Charles's use of the Property. North Charles is an independent non-profit partner of the Department of Psychiatry at the Cambridge City Hospital, now known as the Cambridge Health Alliance. Joint Statement G.32. North Charles is a behavioral healthcare service provider. It has administrative offices at the Property and provides mental health and addiction counseling services at the Property. North Charles provides behavioral health care for people suffering from mental illness, including depression and anxiety, as well as addiction. On its letterhead, North Charles identifies its services as "Mental Health & Addiction Services." Joint Statement G.33.

North Charles's operations at the Property are licensed by the Department of Public Health (DPH) and the Department of Mental Health as a mental health clinic. North Charles does not administer or dispense medications. Joint Statement G.34.

North Charles conducts a non-invasive physical examination of each of its clients once a year at the Property. These examinations are conducted by a physician or a nurse practitioner. Joint Statement G.35.

The Executive Director of North Charles testified that North Charles is a "health-care provider" and that the "treatment of mental illness with drugs is taking place" at the Property. North Charles employs two medical doctors, each of whom work approximately six hours per week, for psychopharmacological services by writing prescriptions for anti-depressants at the Property. [Note 12] Joint Statement G.36.

North Charles also is a licensed provider of methadone services as a component of its opioid treatment program. The opioid treatment program at North Charles is licensed by DPH and accredited by the Commission on Accreditation of Rehabilitation Facilities. All methadone dosing for individuals in the opioid treatment program occurs at Cambridge City Hospital. Joint Statement G.37.

Cambridge Psychiatric Services (CPS), a for-profit wholly owned subsidiary of North Charles, operates at the Property. CPS is an employment service that searches for psychiatrists and places them in hospitals and businesses. One administrative assistant works for CPS at the Property approximately eight hours per week. Joint Statement G.38.

According to North Charles, the vast majority of the services provided at the Property are individual and group talk therapy sessions. The counselors who conduct these sessions are social workers, licensed mental health professionals, and non-licensed individuals with college degrees. Joint Statement G.39.

III. STANDARD OF REVIEW

In order to succeed on summary judgment, Mass. R. Civ. P. 56 (c) requires the moving party to "demonstrate[] that there is no genuine issue of material fact, and that, accordingly, [the party is] entitled to . . . judgment." Ng Bros. Constr. v. Cranny, 436 Mass. 638 , 645 (2002). See Mass. R. Civ. P. 56 (c). In viewing the factual record presented as part of the motion, the court is to draw "all logically permissible inferences" from the facts in favor of the nonmoving party. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991).

When faced with cross motions, as is the case here, a judge "must analyze the parties' legal positions at the summary judgment stage guided by which party has the burden on the issues before the court." Talmo v. Pihl, 19 LCR 121 , 123 (2011) (Misc. Case No. 09 MISC 393714) (Scheier, J.). Under Section 14A, "the burden is on the landowner to prove that the zoning [ordinance] is unreasonable as applied to its property." Amberwood Dev. Corp. v. Board of Appeals of Boxford, 65 Mass. App. Ct. 205 , 209 (2005).

Section 14A grants this court exclusive jurisdiction to determine both "the validity of a municipal ordinance . . . passed or adopted under the provisions of chapter forty A or under any special law related 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," as well as "the extent to which any such municipal ordinance . . . affects a proposed use, enjoyment, improvement, or development of such land . . . ." Here, the question presented is not the validity of a new enactment, but rather the extent to which the Ordinance affects North Charles's proposed use of the Property. [Note 13]

North Charles also seeks a declaration of its rights under G. L. c. 231A, § 1. The Land Court is among the courts listed in G. L. c. 231A, § 1, that "may on appropriate proceedings make binding declarations of right, duty, status and other legal relations sought thereby, either before or after a breach or violation thereof has occurred in any case in which an actual controversy has arisen . . . ." Those courts, however, may make such declarations only "within their respective jurisdictions." Id. In the case at bar, such jurisdiction is found in Section 14 and G. L. c. 185, § 1(j½).

IV. DISCUSSION

"When interpreting [zoning ordinances], we resort to familiar rules of statutory construction." Plainville Asphalt Corp. v. Town of Plainville, 83 Mass. App. Ct. 710 , 712 (2013).

In the absence of an express definition, the meaning of a word or phrase used in a local zoning enactment is a question of law . . . and is to be determined by the ordinary principles of statutory construction. Specific provisions of a zoning enactment are to be read in the context of the law as a whole, giving the language its common and approved meaning "without regard to . . . [the court's] own conceptions of expediency."

Framingham Clinic, Inc. v. Zoning Bd. of Appeals of Framingham, 382 Mass. 283 , 290 (1981), quoting Kurz v. Board of Appeals of N. Reading, 341 Mass. 110 , 112 (1960).

Statutes are to be construed according to the intent of the legislative body, ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated.

Hanlon v. Rollins, 286 Mass. 444 , 447 (1934). Accord Grady v. Zoning Bd. of Appeals of Peabody, 465 Mass. 725 (2013). A court strives "to give effect 'to all [of the ordinance's] provisions, so that no part will be inoperative or superfluous.'" Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirley, 461 Mass. 469 , 475 (2012), quoting Connors v. Annino, 460 Mass. 790 , 796 (2011). "We do not construe a statute's words in isolation or apart from the legal context within which they appear. 'The meaning of language is inherently contextual.'" W.A. Wilde Co., Inc. v. Board of Assessors of Holliston, 84 Mass. App. Ct. 102 , 104 (2013), quoting Moskal v. United States, 498 U.S. 103, 108 (1990).

"The literal meaning of a general term in an enactment must be limited so as not to include matters that, although within the letter of the enactment, do not fairly come within its spirit and intent." Kenney v. Building Comm'r. of Melrose, 315 Mass. 291 , 295 (1943) Accord Chwaliszewski v. Board of Appeals of Lynnfield, 29 Mass. App. Ct. 247 , 250 (1990). "It is a basic canon of statutory interpretation that 'general statutory language must yield to that which is more specific.'" TBI Inc. v. Board of Health of N. Andover, 431 Mass. 9 , 18 (2000) quoting Risk Mgt. Found. of Harvard Med. Insts., Inc. v. Commissioner of Ins., 407 Mass. 498 , 505 (1990). Accord Styller v. Aylward, 26 LCR 464 , 468 (2018) (Misc. Case No. 16 MISC 000757) (Long, J.) (applying canon that general language yields to specific in context of interpreting a zoning bylaw provision).

The central question is whether the uses conducted by or under the auspices of North Charles at the Property may fairly be characterized as "General Office" uses. North Charles's own description of its activities (as set forth in the Joint Statement) leads to the inescapable conclusion that those uses do not fall under the category of "General Office."

Although ISD issued a CUO to North Charles, the Commissioner essentially reversed the position of ISD in less than two months and declared that the drug rehabilitation and counseling services uses occurring at the Property were not permitted as a "General Office" use. North Charles argues that the Commissioner's actions were taken due to vocal neighborhood opposition. While I have no doubt that such opposition played a role in the issuance of the cease and desist order, it is the responsibility of the Commissioner, as the zoning enforcement officer of the City, to properly administer the Ordinance. As necessary, the Commissioner has the authority to correct errors in prior zoning determinations when brought to the attention of ISD. It is well settled that, except in very rare instances, municipalities are not estopped from enforcing their zoning enactments. Ferrante v. Board of Appeals of Northampton, 345 Mass. 158 , 162 (1962).

Further, a court is "obliged to defer to a zoning board's reasonable interpretation and application of its own [zoning ordinance]." Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349 , 358 n.13 (2000). Accord Building Comm'r of Franklin v. Dispatch Communications of New England, Inc., 48 Mass. App. Ct. 709 , 713 (2000). Where a local authority's interpretation is reasonable, a court should not substitute its own judgment. See Flemings v. Contributory Retirement Appeal Bd., 431 Mass. 374 , 375 (2000).

Although it was the Commisioner who made the initial interpretation of "General Office" at issue, the Cambridge Board of Zoning Appeal (BZA) ratified that interpretation when it denied the appeal of North Charles. Thus, the authorities cited above provide the appropriate guidance for this decision.

In this case, the drafters of the Ordinance were specific as to how they wished clinics and social service centers to be classified and regulated. By the inclusion of a section stating the purposes for regulations of institutional uses, one need not guess as to the legislative intent of the drafters. Among the purposes set forth in Section 4.52, the Ordinance states that the IUR is "to protect lower density residential neighborhoods from unlimited expansion of institutional activities" and "to minimize the development of activities which are different from and incompatible with activity patterns customarily found in lower density residential neighborhoods." [Note 14] Nevertheless, the IUR provides a procedural avenue for institutions seeking to locate in certain residential neighborhoods. That avenue is to apply for and receive a special permit from the BZA whenever the proposed use is listed among those eligible for such zoning relief.

North Charles asserts that the vast majority of the services provided at the Property are individual and group talk therapy sessions. Considering that statement alone, such services would properly fit the definition of a social service center under the Ordinance, i.e. a facility where counseling takes place under the aegis of a nonprofit agency. Given North Charles's description of talk therapy sessions, it is not unreasonable to treat those sessions as being synonymous with counseling. The Ordinance is clear that a social service center requires a special permit under the IUR. Thus, North Charles needs a special permit to conduct its business at the Property.

Significantly, North Charles admits it is a partner of the Department of Psychiatry at the Cambridge Health Alliance, formerly known as Cambridge City Hospital. Consequently, North Charles is operating a licensed clinic that is "affiliated with a hospital." In such case, the clinic falls squarely into a use that is prohibited in the residential districts protected by the IUR. [Note 15]

In the absence of a definition of "General Office" in the Ordinance, North Charles contends that the meaning of the phrase may be derived from dictionary definitions. See Tanner v. Board of Appeals of Boxford, 61 Mass. App. Ct. 647 , 649-650 (2004). See also Framingham Clinic, Inc., supra at 290-292. While it is true courts have opened dictionaries in cases when definitions are otherwise unavailable, this court does not find such a need in the instant action. I agree with the City that North Charles suggests a definition of "General Office" that is overly broad. This is particularly true where the uses at issue here are classified properly within a specific category and not a general one.

I now return to the question whether any of the uses at the Property are accessory uses to a principal use. North Charles states that

[i]n addition to the talk therapy session that occur at the Property (the primary use), there are a number of other activities that North Charles conducts at the Property, including: administrative and billing services, operation of [CPS] . . . , physical examinations, and prescription writing. Only the administrative services are "accessory uses" to the talk therapy sessions as defined by the [Ordinance]. The other activities are minor independent uses unrelated to the primary use of the Property . . . .

North Charles Mental Health Research and Training Foundation, Inc.'s Post-Hearing Memorandum at 7-8 (footnotes omitted).

Article 2.000 of the Ordinance defines "accessory use" as "a use subordinate to the principal use and customarily incidental to the principal use." North Charles contends that physical examinations and prescription writing are minor independent uses unrelated to the primary use of the Property. Alternatively, it argues that those activities are permissible accessory uses should it be determined that prescription writing and physical examination are not minor independent uses.

North Charles insists that it carries out administrative services at the Property and that the business of CPS would qualify as a "General Office" use. If those activities were the entirety of the use of the Property, I could find such activities qualify as "General Office" uses. In such a case, those principal uses might have other uses accessory to them. By North Charles's own admission, however, those functions are not the primary uses of the Property.

The City argues that, since the primary use at the Property—a clinic—is not an allowed use in the Residence B zoning district, uses that are customarily accessory to an illegal use are also not allowed. I agree. It is axiomatic that if the Ordinance does not permit a clinic to operate at the Property without a special permit, then it is not possible to have any use that is subordinate and customarily incidental to it.

V. CONCLUSION

For the reasons stated above, I DENY the motion for summary judgment filed by North Charles and ALLOW the City's motion for summary judgment. Judgment shall issue accordingly.