MISC 18-000553

December 19, 2018

Norfolk, ss.



FAI Properties, LLC (FAI) filed its Complaint in this action on October 22, 2018, seeking declaratory judgment on the issue of whether a decision of the Zoning Board of Appeals of the City of Quincy (ZBA) dated August 20, 2014 (Decision), bars or allows the transfer of a liquor license to property owned by FAI at 663 Hancock Street, Quincy (Property).

On October 29, 2018, the court issued an Order to Attend Hearing on November 20, 2018 to Review this Court's Subject Matter Jurisdiction. The Plaintiff, FAI Properties, LLC's, Response to the Order to Attend Hearing on November 20, 2018 to Review this Court's Subject Matter Jurisdiction and Affidavit of Attorney Jack P. Milgram (Milgram Aff.) were filed on November 19, 2018. The hearing on the court's subject matter jurisdiction to hear the Complaint was held on November 20, 2018, at which time counsel for the City of Quincy (City) appeared and indicated that the City was preparing to file a motion to dismiss that addressed substantially the same concern regarding that court's subject matter jurisdiction. The court heard argument from FAI and the City at the hearing and allowed each an opportunity to file further responses on the issue of subject matter jurisdiction. The Defendant City of Quincy's Motion to Dismiss and Defendant City of Quincy's Memorandum of Law were filed on November 23, 2018. The Plaintiff, FAI Properties, LLC's Statement in Opposition to Defendant, City of Quincy's Motion to Dismiss and Affidavit of Jack P. Milgram (Milgram Supp. Aff.) were filed on December 7, 2018, at which time the court took the issue of its subject matter jurisdiction to adjudicate the claim in the Complaint under advisement. This Memorandum and Order follows.

In 2014, FAI applied to the ZBA for a finding under G.L. c. 40A, § 6, to increase nonconforming parking to facilitate the opening of a restaurant at the Property. The ZBA found that "the restaurant will not be substantially more detrimental to the neighborhood" subject to the condition that "all construction be in substantial conformance with the plans and testimony submitted." Milgram Aff. Exh. A. The disputed language in the Decision is the ZBA's fourth listed finding of fact which reads "There is no liquor license." Milgram Aff. Exh. A. Another entity affiliated with FAI has sought to transfer a liquor license to the Property. That request for transfer was ultimately denied in part because of the City's belief that the Decision was based on the finding that there would be no liquor license at the Property. Milgram Aff. Exh. B. The denial of the liquor license transfer has been appealed and is currently awaiting argument before the Appeals Court. Milgram Supp. Aff. ¶¶ 9-10; see Appeals Court Case No. 2018-P-0569. In this action, FAI seeks a declaration that the "no liquor license finding" does not serve as a restriction preventing a liquor license from being transferred to the Property.

A court may consider a declaratory judgment action only if the subject of the jurisdiction is within its subject matter jurisdiction. G.L. c. 231A, §1; Konstantopoulos v. Whately, 384 Mass. 123 , 127-128 (1981). FAI does not contend that the Decision is reviewable or a declaration is sought under either G.L .c 40A, § 17, or G.L. c. 240, § 14A; therefore, neither of those statutes provides a basis for subject matter jurisdiction. See G.L. c. 185, §§ 1(j ½), 1(p). Rather, FAI seeks declaratory judgment interpreting the meaning of the disputed finding. FAI, or its affiliate, has been denied the transfer of a liquor license to the property on the basis of the "no liquor license" finding, and that denial is the subject of a separate action. This court has no subject matter jurisdiction to adjudicate whether the denial of the transfer, on that basis or any other basis, was lawful or not—the question of liquor licenses is not one involving any of the grounds for jurisdiction under G.L. c. 185, § 1.

Given that this action is not brought under G.L. c. 40A, § 17, or c. 240, § 14A, and cannot be considered as an appeal of the transfer denial, there is no basis for this court's subject matter jurisdiction to declare the meaning of the "no liquor license" finding. None of the other bases for jurisdiction set forth in G.L. c. 185, § 1, apply to the requested declaration. It is not sought under any of the statutes enumerated in § 1, and does not involve "any right, title or interest in land." G.L. c. 185, § 1(k); see G.L. c. 185, § 15 ("For the purposes of this section, a proceeding arising under a statute, ordinance or by-law regulating land use, including without limitation one related to zoning or wetlands regulation, is not a proceeding that affects title to real property or the use and occupation thereof or the buildings thereon."). Rather, it seeks a general declaration of the meaning of the Decision in the absence of any specific finding of the ZBA which could be the subject of an appeal over which this court has jurisdiction. In other words, FAI cannot seek a declaration of the meaning of the "no liquor license" finding until it has sought and obtained a decision of the ZBA from which it can then appeal.

In short, FAI must exhaust its administrative remedies before bringing this action in the Land Court. "The statutorily required submission of zoning disputes to local authority is so central to the architecture of G.L. c. 40A that we have required the exhaustion of administrative remedies as a prerequisite to judicial review." Quincy v. Planning Bd. of Tewksbury, 39 Mass. App. Ct. 17 , 20 (1995). The procedure required by G.L c. 40A cannot be avoided, and where a party may still obtain the relief it seeks at the municipal level it is premature to seek declaratory relief as an end run around the well-established procedural requirements of the Zoning Act.

The scope and applicability of the Decision may ultimately be within this court's jurisdiction but only after FAI has exhausted the administrative remedies available from the City and appealed that decision to this court. Notwithstanding that the City's position is unlikely to change, perceived futility does not excuse the exhaustion requirement. See LaFond v. Grandy, 25 LCR 277 , 280 n.6 (2017), aff'd, 93 Mass. App. Ct. 1106 (Rule 1:28 Decision), citing Ciszewski v. Industrial Acc. Bd., 367 Mass. 135 , 141 (1975) ("[Futility] exception applies only where the power and authority of the agency themselves are in question, and not where the exercise of that agency's discretion is challenged."); see G.L. c. 231A, § 3 (party may avoid exhaustion requirement only if it files affidavit stating that seeking administrative remedies would be futile). To proceed, FAI must obtain an adverse decision from the City, an appeal of which will put the language of the Decision properly before a court of competent jurisdiction.


This court is obligated to dismiss any claim over which it lacks subject matter jurisdiction. Mass. R. Civ. P. 12(h)(3). For the foregoing reasons, judgment shall enter DISMISSING the Complaint, without prejudice.