FREDERICK DELLO RUSSO JR., BREANNA LUNGO-KOEHN, RICHARD CARAVIELLO, JOHN FALCO JR., ADAM KNIGHT, MICHAEL MARKS and GEORGE SCARPELLI as members of the MEDFORD CITY COUNCIL v. ANTHONY ARENA, MAUREEN TARDELLI, FRANCIS SULLIVAN, SCOTT CARMAN and YVETTE CLAUDIA VELEZ as members of the MEDFORD ZONING BOARD OF APPEALS, [Note 1] and EQUITY ONE (NORTH-EAST PORTFOLIO) INC.

Introduction

By decision filed with the Medford City Clerk on June 14, 2016, subject to linkage fees and a series of conditions recommended by Medford's Director of Public Health, City Engineer, Community Development Board, Building Commissioner, Office of Community Development, and Fire Department (all of which, as well as the Mystic River Watershed Association, were either in favor of the project as conditioned or had no objection to it), the Medford Zoning Board of Appeals unanimously granted variances and a site plan special permit to a project proposed by defendant Equity One (Northeast Portfolio) Inc. for the re-development of a 6.8 acre site, industrially-zoned, at 61 Locust Street in downtown Medford. The site is abutted to the east by the Meadow Glen Mall; to the south and west by an ice rink, residential apartment buildings, Hormel Stadium, and parking lots; and to the north by a contractor's yard and apartment buildings further down Locust Street and residences along Cummings Street, which dead-ends, and will continue to dead-end, at the boundary of the site. The proposed re-development involves the demolition of two existing buildings - a vacant former Shaw's Supermarket and a small branch bank [Note 2] - and the construction of three new mixed-use buildings containing 490 residential units (10% of which will be reserved for moderate and middle income households) and 7,000 square feet of commercial space, 3,000 of which will be occupied by the re-located bank.

This action, brought by the Medford City Council, is one of four that were filed in opposition to the project. [Note 3] All of the others have been dismissed by stipulation, with prejudice. Although this case - the only remaining one - was brought in a single count, it makes two analytically-separate contentions, each alleged as a basis to vacate the Board's decision.

The first is a contention that the Zoning Board violated the Open Meeting Law, G.L. c. 30A, §§18-25, and that the proper remedy should be the vacating of the project approval, presumably with a remand. Whatever the merits of that claim, this court has no jurisdiction to hear it. Open Meeting Law claims can only be brought in the Superior Court, and then only by the Attorney General or three or more registered voters. See G.L. c. 30A, §23(f). This is the Land Court, not the Superior Court, and the plaintiffs brought their claims in their capacity as members of the City Council, not as voters. The Open Meeting Law claim must therefore be DISMISSED.

The second is the City Council's G.L. c. 40A, §17 appeal of the Zoning Board decision itself, alleging errors and omissions in Equity One's variance and site plan application, errors and omissions in the Board's evaluation of that application, legal and factual errors in the approval of the site plan special permit, and an assertion that the Board "exceeded its authority in granting the variances because none of the statutory criteria are met and use variances are not authorized in the City of Medford." [Note 4] The defendants have moved to dismiss that appeal on the ground that the City Council has no standing to bring it. [Note 5] For the reasons set forth below, I agree. The motion to dismiss the Council's complaint is thus ALLOWED and judgment will enter accordingly.

Discussion

The motion to dismiss is brought under Mass. R. Civ. P. 12(b)(1)("lack of jurisdiction over the subject matter"). It is the proper motion for challenging the Open Meeting Law claim and, because standing is an issue of subject matter jurisdiction, also for challenging the Council's standing to bring its G.L. c. 40A, §17 appeal. See Sullivan v. Chief Justice for Administration and Management of the Trial Court, 448 Mass. 15 , 20-21 (2006). Put simply, if a plaintiff lacks standing to bring the claims it alleges, the court has no jurisdiction to hear them. See id.

As noted above, this court has no jurisdiction to hear Open Meeting Law claims. See G.L. c. 30A, §23(f). That jurisdiction is limited to the Superior Court. See id. The defendants' motion to dismiss that claim is thus allowed.

Standing is a particularly critical inquiry in G.L. c. 40A, §17 appeals because it is "fundamental to sound operation of the statutory scheme." Warrington v. Zoning Bd. of Appeals of Rutland, 78 Mass. App. Ct. 903 , 905 (2010) (rescript). By express limitation in that statute, only two categories of persons may bring such appeals.

The first is "persons aggrieved" by the decision being appealed, limited to those who can show, by credible evidence, that they will suffer an infringement of 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), that is "special and different from the injury the action will cause the community at large," Butler v. City of Waltham, 63 Mass. App. Ct. 435 , 440 (2005), and "substantial enough to constitute actual aggrievement such that there can be no question that the plaintiff should be afforded the opportunity to seek a remedy." Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115 , 122 (2011).

The second is "municipal officers and boards," limited to those that have duties to perform in relation to the building code or zoning matters at issue in the case. See Planning Bd. of Marshfield v. Zoning Bd. of Appeals of Pembroke, 427 Mass. 699 , 701 (1998). This category is "construed narrowly so as to minimize the class of parties who have suffered no legal harm, yet can compel the courts to assume the difficult and delicate duty of passing upon the validity of the acts of a coordinate branch of government." Id at 702. Thus, it is not enough that an officer or board have duties in relation to the building code or zoning generally; "a municipal board seeking to appeal must have duties which relate to the subject matter [of the case]." Id. (internal citations and quotations omitted).

Here, the subject matter of the case is the Zoning Board's grant of eleven variances and related site plan approval to the Equity One project. The first of the variances was a use variance (allowing an otherwise-prohibited residential development in an industrial district), and the other ten were either dimensional or off-street parking related. The site plan was reviewed and approved in the context of these variances - the location, height, size and dimensions of the new buildings, their respective uses, and their associated parking, vehicle, pedestrian, and emergency access and circulation. These are matters entrusted to the Zoning Board by the City's zoning ordinance. See Ch. 94, Zoning, Medford City Ordinance (the "zoning ordinance"), §§94- 37(a) (variances) [Note 6] & §94-333 (site plan approval in connection with variances). [Note 7]

The City Council does not, and cannot, contend that it is a "person aggrieved" by the Zoning Board's decision within the meaning of G.L. c. 40A, §17. It will not suffer an infringement of a specific interest that the applicable zoning statute, ordinance, or bylaw at issue is intended to protect, special and different from the injury the action will cause the community at large and substantial enough to constitute actual aggrievement such that there can be no question that the plaintiff should be afforded the opportunity to seek a remedy.

Instead, the Council claims standing as a "municipal officer or board" within the scope of G.L. c. 40A, §17 which, as noted above, is limited to officers and boards with duties related to the subject matter of the case. This, it contends, includes any municipal body with at least some duties related to zoning and, for itself, identifies two: (1) its role as the body that enacted the overall zoning ordinance, and (2) its role under that ordinance in the granting of some special permits and associated site plan approval, although not the zoning relief (variances) or the associated site plan special permit granted here by the zoning board. It rejects the defendants' contention that the duties that confer standing must be related to the specific zoning relief at issue in the case. However, should it be found wrong on that argument and the defendants correct, it has a second, fall-back position. This is its contention that - as the body that granted the special permits under which the bank use currently operates, and which it contends are subject to review because of the site changes approved by the variances - it has standing in this case not only to challenge the bank re-location, but also the entire project. I disagree with the Council, and discuss each of its arguments in turn.

The argument that standing to bring a G.L. c. 40A, §17 appeal of any zoning decision is conferred on any "municipal officer or board" with at least some duties related to zoning runs directly counter to Planning Bd. of Marshfield and established municipal law. As noted above, the officers and boards that may bring such appeals are limited to those with "duties which relate to the subject matter [of the case]," and the scope of that category is to be "construed narrowly to minimize the class of parties who have suffered no legal harm." Planning Bd. of Marshfield, 427 Mass. at 702 (emphasis added). The Council's contentions that, simply by being the body that enacted the zoning ordinance and simply by having the authority to grant certain types of special permits, it has such duties in all zoning-related cases, are too broad. Under that theory, it could challenge any zoning relief granted anywhere in the city by any municipal board. Not so. When specific procedures and authority are set forth in an ordinance, they govern. See Monell, 471 Mass. at 577 (citing "familiar canon of construction" that specific statutes control over provisions of general ones); Murphy v. Dep't of Correction, 429 Mass. 736 , 744 (1999) ("[W]here the Legislature has employed specific language in one paragraph, but not in another, the language should not be implied where it is not present." (internal citations omitted)); Ellis v. Alberghini, 24 LCR 262 , 265-266 (2016), 2016 WL 2986055 (Mass. Land Ct., May 20, 2016) and cases cited therein. Here, the zoning ordinance is clear. As noted above, variances and their associated site plan approval are the duties of the Zoning Board, and that Board alone. [Note 8] The zoning decisions where the Council has duties are those specifically set forth in the zoning ordinance, e.g. special permits and associated site plan approval for certain types of uses in certain districts. [Note 9] If the Council wants a different structure with the Council now having duties with respect to the granting of variances, it will have to change the ordinance.

The Council's fallback argument is a more interesting one, but is again incorrect. This is its contention that, because it granted the special permits that apply to the bank branch at 61 Locust Street, it has "duties" that give it standing to appeal the Zoning Board decision in this case and, in the context of that appeal, can challenge not only the relocation of the bank [Note 10] but also the entirety of the Equity One project. To understand why that argument is incorrect - why the Council's "duties" regarding the special permits it granted are not implicated by the Zoning Board decision at issue in this case and the Council thus has no standing to appeal that decision - requires an examination of those Council-granted permits and the actual mechanism that the Council has to police them under G.L. c. 40A and the zoning ordinance. That mechanism does not include a G.L. c. 40A, §17 appeal of this Zoning Board decision.

The special permits previously granted by the Council for the bank are two, both dating from 2006. [Note 11] Permit No. 06-659 allowed a "consumer service business" use (a branch bank) [Note 12] to operate on the 61 Locust Street site. [Note 13] Permit No. 06-660 allowed the bank to have a drive­through window. [Note 14] Neither of those permits is infringed by the Equity One project. The "consumer service business" permit was for "61 Locust Street," without limitation to any particular location on that site. Under the Equity One development, the bank will remain at 61 Locust Street, now inside residential building "A", and thus still within the scope of that permit. According to counsel, the re-located bank will not have a drive-through window, [Note 15] thus mooting the "drive-through" permit.

Even if re-locating the bank to a smaller space on another part of the site, inside one of the three residential buildings, requires a modification of the "consumer service business" permit; and even if the re-located bank continues to have a drive-through window, this time on a different location on the site with a different drive-up orientation [Note 16] requiring a modification of the "drive through" permit, the Council would still not have standing to bring a G.L. c. 40A, §17 appeal of the Zoning Board's decision at issue in this case. This is so for the following reasons.

Neither the right to continue the bank use, nor the right to continue it in the re-located space, was a part of the Zoning Board decision. Neither the variances nor the site plan approval purported to approve that use or the location of that use, nor could the Zoning Board have done so even had it wished. Under the zoning ordinance, only the Council can grant those special permits. Equity One (and presumably Eastern Bank) contend that no further special permits, and no modifications of those permits, are needed for the bank to downsize, re-locate, and continue its operations. As discussed above, that is likely so. But even if further permits or modifications are needed for the bank relocation, the Council's right to a ruling on that question arises exclusively in the context of either an application by the bank for new or modified special permits or, should no such application be made, in an enforcement proceeding - not through an appeal of the zoning board's decision at issue in this case which has not, and cannot, make any ruling about those permits. Because of that, the Council has no duties related to this Zoning Board decision or the issues that decision presents.

Any such enforcement proceeding is an entirely separate action, where the Council's special permits would be at issue, arising as follows. Assume that the bank re-locates, either with or without a drive-through window and without seeking any new or modified permits from the Council, and the Council believes that the bank's operations in that new location are outside the scope of one or both of the special permits it issued in 2006. The Council would bring that to the attention of the building inspector with a G.L. c. 40A, §7 request for zoning enforcement. [Note 17]

If the building inspector agrees that either new or modified special permits from the Council are necessary, he would refuse to issue a building or occupancy permit or issue a cease and desist order, whichever was appropriate. The bank would then either accept that ruling (and apply to the Council for new or modified special permits), or appeal it to the zoning board pursuant to G.L. c. 40A, §8. [Note 18] If the zoning board overruled the building inspector and decided that new or modified special permits were not needed, the Council would have standing to appeal that decision to court under G.L. c. 40A, §17 because now it is a "municipal officer or board" with duties related to the subject matter of that case - the need for Council-granted special permits for a "consumer service business" and drive-through window. See G.L. c. 40A, §17; Planning Bd. of Marshfield, 427 Mass. at 701-702.

Similarly, if the building inspector disagreed with the Council on whether new or modified special permits were required and refused to issue an enforcement order or deny a building or occupancy permit on that basis, the Council would have standing to appeal that refusal to the Zoning Board pursuant to G.L. c. 40A, §8 by virtue of its status as the "officer or board of the city or town" with duties related to the granting of those permits and then, by that same status, have standing to appeal any unfavorable ruling by the Zoning Board on that question to court pursuant to G.L. c. 40A, §17. See G.L. c. 40A, §8 (granting right of appeal to "an officer or board of the city or town...aggrieved by an order or decision of the inspector of buildings...in violation of any provision of this chapter or any ordinance or by-law adopted hereunder"); Green, 404 Mass. at 574 n. 5 ("In addition to persons who have rights to appeal to the board of appeals and to court, municipal officers and boards have such rights. See G.L. c. 40A, §§8, 13, 17."); Planning Bd. of Marslifield, 427 Mass. at 701-702 (describing the officers and boards that have such an appeal right as those with "duties which relate to the subject matter [of the case]"); Warrington, 78 Mass. App. Ct. at 904-905 (words in G.L. c. 40A, §8 "mean[] the same thing" as in G.L. c. 40A, §17).

Conclusion

This court does not have jurisdiction over Open Meeting Act claims. The City Council is not a "person aggrieved" by the variances and site plan approval granted by the zoning board of appeals in this case, does not have duties related to those variances and site plan, thus has no standing to bring a G.L. c. 40A, §17 appeal of the zoning board's decision. Its complaint must therefore be dismissed, with prejudice.

Judgment shall enter accordingly.