SEVILLE CONDOMINIUM TRUST v. THE SEVILLE ON BOSTON HARBOR, LLC, and MDJ ENTERPRISES, LLC, d/b/a BEACON HILL ATHLETIC CLUB.

Following the dismissal of the plaintiff Seville Condominium Trust's (the "Trust") complaint in an earlier, related case, [Note 1] for failure to comply with certain requirements of the master deed for the institution of litigation, the Trust addressed the reasons for dismissal and refiled the claims made in the earlier case, in the present action. The remaining count of the earlier action has now been consolidated with the present action. The defendant The Seville on Boston Harbor, LLC, ("SBH") the declarant and developer of the Seville Condominium, and the owner of one commercial unit and two residential units at the Condominium, now seeks to dismiss the new Verified Complaint in Case No. 18 MISC 000321, pursuant to Mass. R. Civ. P. 12(b)(1) for failure of the Trust to comply with another requirement of the master deed relating to the Trustees' authority to file the present action; and seeks to dismiss, pursuant to Mass. R. Civ. P. 12(b)(6), Count I of the Verified Complaint, which seeks a declaratory judgment prohibiting the use of SBH's ground-floor commercial unit as a health and fitness club in accordance with the Condominium's master deed—on the grounds that the Condominium master deed permits the disputed use of the defendants' commercial unit as a matter of law.

For the reasons stated below, SBH's motion to dismiss is ALLOWED with respect to Count I seeking a declaratory judgment, and is DENIED as to the remaining counts of the Verified Complaint.

FACTS

The following facts are accepted as true for the purposes of deciding this motion to dismiss under Mass. R. Civ. P. 12(b)(1) and 12(b)(6):

1. The Declaration of Trust established the Trust as the organization of unit owners of The Seville Condominium ("Condominium"). The Condominium was established by Master Deed dated October 27, 2016 and recorded in the Suffolk County Registry of Deeds at Book 57038, Page 1, as amended.

2. The declarant of the Condominium, defendant SBH, and its principals or related entities, retained two residential units, and one ground-floor commercial unit at the Condominium, all of which it continues to own, including the commercial unit, Unit 003, which it leases to defendant MDJ Enterprises, LLC d/b/a Beacon Hill Athletic Club, ("BHAC") for use as a health and fitness club, which includes a gym. There are two (2) other commercial units on the first floor of the Condominium besides Unit 003, and there are sixty-six (66) residential units on floors two through six of the six-story building.

3. The present litigation was authorized by a vote of three of the five members of the board of trustees at a duly-noticed meeting. The trustees of the Condominium did not obtain, nor attempt to obtain, the consent of any number or percentage of unit owners in the Condominium before instituting the present action.

4. Section 9 of the Master Deed is entitled, "Use of Units." Section 9.1 of the Master Deed is entitled, "Commercial Units."

5. Section 9.1(1) of the Master Deed provides as follows:

All Commercial Units located on the Ground levels of the Building, namely, Units 001, 002 and 003, hereinafter the "Commercial Units" may be used, to the extent permitted by the Boston Zoning Ordinance and applicable building, health laws, codes, rules and regulations, for professional, clerical, administrative and business offices, and retail stores, including but not limited to restaurants. Commercial Units are subject to the restrictions listed below and those contained in the Trust. No representation or warranty is made or should be implied with respect to the legal use that may be made of the Commercial Units.

6. Section 9.1(9), of the Master Deed provides, in relevant part, as follows:

Notwithstanding anything to the contrary in this Section, it is expressly understood and agreed that the provisions of this Section shall not apply to the Declarant….

7. Section 9.3 of the Master Deed, entitled "All Units" generally pertains to restrictions applicable to all units, both commercial and residential, in the Condominium.

8. Section 9.3(j) of the Master Deed provides, in relevant part, as follows:

(j) No Unit may be used as a bowling alley, amusement center, massage parlor, adult book store, or for any business whose product is sexual in nature, pet store, laboratory, medical or counselling clinic that sees patients, industrial, manufacturing or warehouse space.

9. Section 9.3(q) of the Master Deed provides, in relevant part, as follows:

(q) No Unit Owner shall make or permit any disturbing vibrations or noises in the Building or do or permit anything that will interfere with the rights, comforts or convenience of others. All Unit Owners are entitled to quiet enjoyment of their Unit….The Trustees may order any Unit Owner to cease and desist from engaging in any offending activities, and levy fines for failure to so cease, and may seek legal or equitable judicial relief (including relief in the form of an injunction, as to which each Unit Owner agrees upon acceptance of its Unit Deed that failure to abide by any Trustees cessation order will conclusively presume "irreparable harm" to the Condominium and to each of its Unit Owners).

10. Section 1(o) of the Condominium's By-Laws provides as follows:

Conducting litigation as to any course of action involving the General Common Areas and Residential Common Areas or arising out of the enforcement of the By-Laws, rules and regulations, and Master Deed, and this Trust. Notwithstanding any provision of the Master Deed, or the Declaration of Trust of the Trust, or of these By-Laws or the Rules and Regulations to the contrary, neither the Trustees acting in their capacity as such Trustees or acting as representatives of the Unit Owners, nor any class of Unit Owners shall bring any litigation whatsoever unless a copy of the proposed complaint in such litigation has been delivered to all of the Unit Owners, and not less than eighty percent (80%) of all Unit Owners consent in writing to the bringing of such litigation within sixty (60) days after a copy of such complaint has been delivered to the Unit Owners. The Unit Owners must specify as a part of the written consent a specific monetary limitation to be paid as legal fees and costs and expenses to be incurred in connection therewith, which amount shall be separately assessed as a special assessment effective forthwith at the time of said affirmative consent. Notwithstanding any provisions of the Master Deed, or of the Declaration of Trust of the Trust (including, but not limited to the provisions of Section 7 of the Declaration of Trust of the Trust), or these By-Laws or the Rules and Regulations to the contrary, the provisions of this Paragraph (o) of this Section shall not be amended except by vote of at least eighty percent (80%) of Unit Owners. The provisions of this paragraph (o) shall not apply to litigation by the Trust against Unit Owners with respect to the recovery of overdue Common Expenses, Special Assessments, Parking Charges or to foreclose the lien provided by Chapter 183A, Section 6 and General Laws Chapter 254, Sections 5 and 5A, as amended by 1987 Mass. Acts Chapter 338, 1989 Mass. Acts Chapter 341, 1992 Mass. Acts Chapter 400 and 1993 Mass. Acts Chapter 1, or to enforce any of the provisions of the Master Deed or the Declaration of Trust of the Trust or these By-Laws or Rules and Regulations thereto or the Unit Deed against Unit Owners.

11. Section 13 of the Rules and Regulations of the Condominium provides in relevant part as follows:

Vibrations/Noise/Compliance. No Unit Owner shall make or permit any disturbing vibrations or noises in the Building or do or permit anything that will interfere with the rights, comforts or convenience of others. All Residential Unit Owners are entitled to quiet enjoyment of their Unit;….

STANDARD OF REVIEW

To the extent the motion before the court seeks to dismiss Count I of the Verified Complaint on the grounds that the use of Unit 003 as a health and fitness club is allowed as a matter of right by the governing documents of the Condominium, the motion is one for failure to state a claim upon which relief can be granted pursuant to Mass. R. Civ. P. 12(b)(6). In considering a motion to dismiss filed pursuant to Mass. R. Civ. P. 12 (b)(6), the court accepts as true the well-pleaded factual allegations and reasonable inferences drawn therefrom, Marram v. Kobrick Offshore Fund, Ltd., 442 Mass. 43 , 45 (2004), but does not accept "legal conclusions cast in the form of factual allegations." Iannacchino v. Ford Motor Co., 451 Mass. 623 , 633 (2008), quoting Schaer v. Brandeis Univ., 432 Mass. 474 , 477 (2000).

Mass. R. Civ. P. 12(b) provides that "[i]f, on any motion . . . to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." White v. Peabody Constr. Co., 386 Mass. 121 , 126 (1982). The court may, however, also take into account matters of public record and documents integral to, referred to, or explicitly relied on in the complaint, whether or not attached, without converting the motion to a motion for summary judgment. Marram v. Kobrick Offshore Fund, Ltd., supra, 442 Mass. at 45 n.4; Schaer v. Brandeis Univ., supra, 432 Mass. at 477; Reliance Ins. Co. v. City of Boston, 71 Mass. App. Ct. 550 , 555 (2008); Shuel v. DeIeso, 2008 WL 2068211, 16 LCR 329 , 329 (2008) (Long, J.). "A complaint only survives a motion to dismiss if it includes enough factual heft 'to raise a right to relief above the speculative level.'" Revere v. Massachusetts Gaming Comm'n, 476 Mass. 591 , 609 (2017), quoting Iannacchino v. Ford Motor Co., supra, 451 Mass. at 636.

To the extent SBH seeks to dismiss the Verified Complaint based on the failure of the Trustees to obtain authorization to initiate this litigation by a vote of at least eighty percent of unit owners pursuant to Section 1(o) of the By-Laws, it is a motion pursuant to Mass. R. Civ. P. 12(b)(1). In reviewing a motion to dismiss for lack of subject matter jurisdiction pursuant to Mass. R. Civ. P. 12(b)(1), the court accepts as true the factual allegations in the Verified Complaint, as well as any favorable inferences reasonably drawn from them. Ginther v. Comm'r of Ins., 427 Mass. 319 , 322 (1998). In considering subject matter jurisdiction under this rule, the court may consider matters outside the four corners of the complaint, which are used to support the movant's claim that the court lacks subject matter jurisdiction. Id. at n.6.

DISCUSSION

I. THE TRUST DID NOT VIOLATE SECTION 1(o) OF THE BY-LAWS IN BRINGING THE PRESENT ACTION.

It is undisputed that the Trust filed the present action on the authority of a vote of three of the five Trustees, and that the Trust did not obtain, nor did it seek to obtain, the consent of eighty percent (80%) of the unit owners of the Condominium as is required generally by Section 1(o) of the Condominium By-Laws for the institution of litigation by the Trust. The Trust argues that it was not required to obtain the consent of the unit owners because the consent requirement is virtually identical to one struck by the Supreme Judicial Court as void as a matter of public policy in Trustees of the Cambridge Point Condominium Trust v. Cambridge Point, LLC, 478 Mass. 697 (2018). The Trust further argues that it was not required to obtain such consent because Section 1(o) excepts from the consent requirement actions "to enforce any of the provisions of the Master Deed or the Declaration of Trust of the Trust or these By-Laws or Rules and Regulations thereto…." The Trust contends that the present action is one to enforce the prohibitions in the Master Deed against a use that the Trust argues is prohibited by the Master Deed, and against the use of a unit in such a way that it violates § 13 of the Condominium Rules and Regulations prohibiting excessive noise and vibration.

The Verified Complaint asserts four causes of action: Count I seeks a declaratory judgment that the fitness club being operated in SBH's commercial unit violates the provisions of the condominium documents both because it generates excessive noise and vibration and because it not a permissible use; Count II (not really a cause of action, but rather a request for relief) seeks injunctive relief to enjoin the alleged excessive noise and vibration; Count III asserts that the alleged excessive noise and vibration in the SBH unit constitutes a private nuisance, which it seeks to enjoin; and Count IV seeks to recover the costs of enforcement of the Master Deed's prohibition against excessive noise and vibration pursuant to G. L. c. 183A, § 6(a)(ii). These claims are all, on their face, claims "to enforce…the provisions of the Master Deed or the Declaration of Trust of the Trust or these By-Laws or Rules and Regulations thereto…" as permitted by Section 1(o) of the By-Laws without the consent of the requisite number of unit owners. None of the four asserted causes of action seeks damages for design or construction defects or other construction claims typically directed at a developer by a condominium association. Instead, each asserted claim seeks either termination of the use on the ground that it is not a use permitted by the Condominium's governing documents, or abatement of excessive noise and vibration alleged to be emanating from SBH's commercial unit in violation of the various provisions of the governing documents prohibiting excessive noise or vibration by either a unit owner or his or her tenant. None of the counts seek money damages; Count IV, requesting attorneys' fees and costs, is a statutory claim for reimbursement for the cost of obtaining enforcement, and does not take the action outside the exemption from the requirement for unit owner consent in Section 1(o) since it is explicitly tied to the enforcement of the Master Deed and the Condominium's other governing documents.

In response to the Trust's argument that the present action is one for enforcement—and not for damages or any other type of action requiring unit owner consent pursuant to Section 1(o)—SBH points to Paragraph 44 of the Verified Complaint, arguing that this paragraph takes the Trust's claims outside of the Section 1(o) exception for enforcement actions. Specifically, SBH argues that Counts II, III, and IV, are, in effect, claims for design and construction defects. The Trust alleges in Paragraph 44 that its engineer determined that the Condominium building was not designed or constructed to adequately prevent acoustic and vibration problems associated with use by a health and fitness club. However, the Trust makes this allegation not to seek damages for the negligent design or construction of the building so as to accommodate the health and fitness club use, but rather to demonstrate that the use, without alteration to the use itself, as opposed to the building, is inappropriate for the building and is therefore prohibited because of its inability to comply with the prohibition against excessive noise and vibration. Thus, the only relief sought is injunctive; the Trust neither seeks to repair the building nor does it seek damages for design or construction defects. Under these circumstances, the claims of the Trust, without exception, are claims for enforcement that do not require consent of the unit owners under Section 1(o) of the By-Laws. Compare and contrast Trustees of the Cambridge Point Condominium Trust v. Cambridge Point, LLC, supra, in which a condominium trust sued the condominium's developer for damages due to design and construction defects.

Given the court's determination that the present action falls within the exception for enforcement actions in Section 1(o) of the By-Laws, the Trust was not required to seek the consent of the unit owners in order to institute the current action. Accordingly, the court does not reach the question whether the unit owner consent provisions of Section 1(o), in the circumstances of the present case, are void under the holding of Trustees of the Cambridge Point Condominium Trust v. Cambridge Point, LLC, supra.

II. THE USE OF THE SBH COMMERCIAL UNIT AS A HEALTH AND FITNESS CLUB IS NOT PROHIBITED PER SE BY THE MASTER DEED.

Count I of the Verified Complaint seeks a declaratory judgment pursuant to G. L. c. 231A, § 1, that the use of the SBH commercial unit for occupancy by a health and fitness club is prohibited by the Master Deed regardless whether the use generates excessive noise and vibration. The defendants SBH and its tenant BHAC seek a contrary declaration that the health and fitness club is a use permitted by the Master Deed. As the parties have all alluded to facts outside of the four corners of the Verified Complaint, and as the facts relevant to this motion to dismiss are not in dispute, the motion is treated as one for summary judgment. Moreover, even treated as a motion to dismiss, as Count I seeks a declaratory judgment, the court is obligated to declare the rights of the parties, rather than dismiss the complaint if the motion is allowed. See Whitehouse v. Town of Sherborn, 11 Mass. App. Ct. 668 , 676 (1981) (where facts are undisputed, when granting a motion to dismiss in a declaratory judgment action, court's judgment should declare rights of the parties rather than dismiss complaint).

The Trust's contention that a health and fitness club, or gym, such as that operated by SBH's tenant in Commercial Unit 003, is prohibited by the Master Deed, is based on Section 9.1(1) of the Master Deed, found under the heading "Commercial Units." Section 9.1(1) provides that the three commercial units on the ground floor of the Condominium may be used for "professional, clerical, administrative and business offices, and retail stores, including but not limited to restaurants." The Trust argues that the list of allowed uses is inclusive of all the uses that are allowed, and that the failure to list "fitness club" or "gym" means that such a use is prohibited. SBH's argument that uses other than those listed in Section 9.1(1) are also permitted because the section does not state that only those uses are permitted, is unavailing. The Section also does not state that the uses listed are only examples of permitted uses or that the list is "without limitation," other than to state that all types of retail stores are permitted. As the Trust argues, the language, although broad and general, does not explicitly allow the use of the commercial units for a health and fitness club. However, whether the term "retail stores" brings health and fitness clubs into the ambit of the section is a question that must be examined.

The meaning and breadth of the term "retail store" has long been a subject of litigation, and courts have allowed a wide range of activities to be included within the term. See e.g., Coco Bella, LLC v. Town of Hopkinton Bd. of Appeals, 92 Mass. App. Ct. 1102 (2017) (Rule 1:28 Unpublished Opinion) (term "retail store" in local zoning by-law inclusive of fast food restaurant use, notwithstanding separate explicit treatment of sit-down restaurants); Town of Wellesley v. Javamine, 21 Mass. L. Rptr. 12, *1-2 (2006) (finding that a proposed Dunkin' Donuts offering exclusively take-out food, with no tables, chairs or counters for in-store consumption, was a retail store and therefore was not required to obtain common victualler's license); Commonwealth v. Moriarty, 311 Mass. 116 , 120-121 (1942) (court found that tavern was a "retail store" within meaning of statute requiring that retail stores be closed between 7 a.m. and 1 p.m. on Columbus Day, after finding that serving alcohol was retail sale of beverages).

The allowed uses listed in Section 9.1(1) are not listed in a vacuum. The section provides that these uses, including "retail stores," are allowed "to the extent that they are permitted by the Boston Zoning Ordinance…." [Note 2] Accordingly, it is appropriate to examine whether a health and fitness club such as that operated by BHAC as a tenant of SBH is considered a retail use by the Boston Zoning Code. Article 8, Section 8-7, Table A of the Boston Zoning Code lists various categories of uses and specific uses allowed in the "downtown" districts under the "Main Code" applicable in parts of the City of Boston not covered by "Neighborhood District" zoning articles. Under the heading "Retail Business," Use Item No. 38 includes, among other uses, "… social, recreational or sports center conducted for profit…." However, the provisions of Article 8, Section 8-7, Table A are not applicable to the Condominium because East Boston has its own "Neighborhood District" provision in the form of Article 53 of the Code, entitled, "East Boston Neighborhood District". Article 53, unlike the sections of the Code applicable to the so-called downtown districts, treats a health or fitness club, or gym, not as a "retail use," but rather as an entertainment use or recreation use. Specifically, under the heading "Entertainment and Recreational Uses," "fitness center or gymnasium" is listed as a conditionally allowed use in the Waterfront Residential District in which the Condominium lies. (Boston Zoning Code, Article 53, Table A.) Retail uses are listed separately in Table A, and nothing resembling a fitness club or gym is included. Accordingly, although a fitness center or gymnasium is a use allowed (conditionally) under the Boston Zoning Code, it is not a use defined as a retail use in the East Boston Neighborhood District in which the Condominium lies. Therefore, the use of the SBH unit is not a "retail use" permitted by Section 9.1(1).

Taken at face value, Section 9.1(1) lists uses that are permitted, nothing more and nothing less. Neither health and fitness club, nor gym, are listed, and for the reasons described above, the court declines to construe "retail store" to include a health and fitness club or gym. In this respect, Section 9.1(1) is "an unambiguous agreement [that] must be enforced according to its terms." Schwanbeck v. Federal-Mogul Corp., 412 Mass. 703 , 706 (1992). Where the intent of language in the master deed is plain, it should be interpreted accordingly. Flynn v. Parker, 80 Mass. App. Ct. 283 , 292 (2011) (intent of master deed that particular type of interior wall "be designated as common elements is plain").

SBH's alternative argument is that, assuming Section 9.1(1) does prohibit a health and fitness club or gym, that section is not applicable where, as here, the commercial unit that is the subject of the inquiry is owned by the declarant of the Condominium. Section 9.1(9) provides in relevant part that "the provisions of this Section shall not apply to the Declarant…." Thus, SBH argues, to the extent Section 9.1(1) is inclusive of all permitted uses of the commercial units at the Condominium, that limitation does not apply to Unit 003 so long as it continues to be owned by SBH, the declarant of the Condominium. The Trust appears to concede that, on its face, this provision exempts SBH from the limitations contained in Section 9.1(1), but argues that the "declarant exemption" should be declared void as a matter of public policy. In support of this argument the Trust cites Trustees of the Cambridge Point Condominium Trust v. Cambridge Point, LLC, supra.

The provision declared void in Cambridge Point is not analogous to the provision sought to be declared void here. In Cambridge Point, the Supreme Judicial Court held that a condominium developer could not insulate itself from liability for defective construction by insertion of an eighty percent owner-consent requirement that, given the developer's retention of nearly twenty percent of the beneficial ownership, would be virtually impossible to meet. The court cautioned, however, that "a bylaw provision requiring unit owner consent to initiate litigation is not per se void…." Cambridge Point, supra, 478 Mass. at 703. Master deed provisions preserving certain rights or granting special privileges to the developer/declarant of a condominium are not void so long as they are clearly stated in the master deed and do not constitute overreaching or fraud. "Absent overreaching or fraud by a developer, we find no strong public policy against interpreting c. 183A, s 10(a), to permit the developer and unit owners to agree on the details of administration and management of the condominium unit. Barclay v. DeVeau, 384 Mass. 676 , 684 (1981) (declarant could retain control over board of trustees for "reasonable time"). Where constructive or actual notice is provided with respect to interests in the condominium land to be retained by the developer, the retention of such interests does not violate public policy. Commercial Wharf East Condominium Ass'n v. Waterfront Parking Corp., 407 Mass. 123 , 129 (1990). In Commercial Wharf East, the Supreme Judicial Court held that there was "nothing improper" in the developer's retention of the right to manage and control the parking area on common area of a condominium where there was constructive notice of such retention of rights by a document recorded prior to the recording of the master deed. Similarly here, the developer has reserved to itself certain rights with respect to the use of the commercial units that would not inure to future owners of those units. The inapplicability to the developer of the restrictions on the use of the commercial units in Section 9.1(1) are clearly stated in the Master Deed, and, with the developer's acknowledgement that it is subject to the prohibitions against certain uses of all units found in Section 9.3(j) of the Master Deed, cannot be said to be overreaching. See id., at 137.

CONCLUSION

For the reasons stated above, the defendant The Seville on Boston Harbor's motion to dismiss Count I of the Verified Complaint is ALLOWED, and a judgment will enter at the conclusion of litigation of the remaining counts declaring that the use of Commercial Unit 003 of the Condominium as a health and fitness club is not prohibited per se by the Master Deed so long as the unit remains owned by the declarant. The motion to dismiss is in all other respects DENIED.

So Ordered.