MISC 17-000580

April 18, 2019

Essex, ss.



Contending that the plaintiff, Washington Mills Apartments II, Limited Partnership ("Washington Mills") has abandoned the building project for which it seeks approval in this action, the defendant members of the Lawrence Zoning Board of Appeals (the "Board") have moved to dismiss this action on the ground that it is moot. Washington Mills has built a new building project on the site for which it ostensibly seeks approval of a different project. The Board argues that this demonstrates there is no longer an actual controversy to adjudicate, but instead, merely a hypothetical principle Washington Mills seeks to vindicate. Thus, the Board argues, the present case no longer represents a justiciable controversy.

As this is essentially a motion to dismiss on the ground that the court lacks subject matter jurisdiction, the court treats the motion as one pursuant to Mass. R. Civ. P. 12(b)(1). It is appropriate for the court to address the matter regardless of the stage of the proceedings at which it was raised. See Talmo v. Zoning Bd. of Appeals of Framingham, 93 Mass. App. Ct. 626 , 629 (2018) (court has "both the power and obligation" to resolve question of subject matter jurisdiction whenever it becomes apparent). See also, Mass. R. Civ. P. 12(h)(3). [Note 1]

As I agree that the present dispute is no longer a justiciable controversy, Washington Mills' claim that it is entitled to the reinstatement of a building permit it will never exercise will be dismissed with prejudice.


The following facts are not in dispute, and are either taken from the summary judgment record (I previously denied a motion for summary judgment) or are agreed facts as stated in the joint pre-trial memorandum filed by the parties. Facts regarding the recent issuance of a second, new building permit and the recent actual redevelopment of Building 6 are taken from the Board's motion or are based on my view of the property, and are also not in dispute.

Washington Mills owns a vacant industrial building on the Merrimack River waterfront in a formerly industrial section of Lawrence. The building is located at 240 Canal Street, and is known as "Building 6." Nearby industrial buildings have been or are presently being redeveloped for residential uses. Building 6 is in an Industrial (I-2) zoning district, in which residential uses are allowed as a matter of right. Warehouse uses are also allowed as a matter of right.

On January 3, 2017, Washington Mills filed an application with the Lawrence building commissioner seeking a building permit to redevelop Building 6 into 19 units of "luxury private storage units." These would be units intended for storage, but into which one could drive one's automobile, and each unit would be equipped with a kitchen, a bathroom with shower, a washer and dryer, separately metered electric, telephone, cable TV and internet service, and each unit would have its own heating and air conditioning system with an individual programmable thermostat. After Lawrence city officials raised concerns that the proposed redevelopment would be an impermissible mix of residential and non-residential uses not permitted by the Lawrence Zoning Ordinance (the planning director referred to the proposed use as a "man cave"), the building commissioner denied the application.

Washington Mills thereafter, on May 24, 2017, resubmitted the application, designating the use as "storage" and adding that, "No residential use will be allowed in building." But the plans submitted with the application, including kitchens, bathrooms, etc., remained unchanged from the January submission. On June 13, 2017, the building commissioner authorized approval of the building permit, and building permit no. 58021 was issued.

On June 21, 2017, the building commissioner revoked building permit no. 58021. Washington Mills appealed the revocation to the Board, which affirmed the building commissioner's decision. Washington Mills then appealed the Board's decision to this court, claiming that the building commissioner's decision to revoke the permit a week after he had issued it was not based on his independent exercise of his authority as the local building official, but rather was based on pressure from Lawrence city officials, including the mayor. On this basis, Washington Mills contends, the Board's decision upholding the commissioner's decision to revoke the building permit should be annulled, and the building permit should be ordered reinstated.

The Board filed a motion for summary judgment in this action, which I denied on the ground that there were genuine issues of material fact with respect to what was being proposed to be built. Neither of the parties submitted the building plans with the summary judgment record, and they could not agree at the hearing on the features that were to be included in each proposed storage unit.

I scheduled a pre-trial conference for November 9, 2018, and on November 2, 2018 the parties submitted a joint pre-trial memorandum. In the joint pre-trial memorandum, the parties for the first time disclosed to the court that Washington Mills had, subsequent to the revocation of building permit no. 58201 on June 21, 2017, applied for and been issued a new building permit for the reconstruction of Building 6 into 19 studio apartments, an allowed residential use in the I-2 zoning district. Specifically, Washington Mills disclosed that it "was compelled to submit a further, and different, application for building permit and related documents to the City, and thereafter commenced construction, as part of an effort to attempt to mitigate its losses and damages as a result of the City's improper revocation of the subject June 13, 2017 building permit." At the November 9, 2018 pre-trial conference, the parties disclosed no details of the construction then under way. The Board did not file a motion at that time asserting mootness, although it reserved the right to do so, and a trial date was set for March 8, 2019, with a view scheduled for March 7, 2019.

On March 7, 2019, I conducted a view of Building 6, with the attorneys for the Board and Washington Mills present. Instead of the vacant industrial building I expected, I encountered a nearly complete gut-renovated apartment building with 19 loft-style studio apartments, each with new wood floors, new walls, high ceilings, large new windows (many directly overlooking the Merrimack River), new kitchens and bathrooms, new HVAC systems in each unit; all of it completely new and apparently substantially complete. [Note 2] At the conclusion of the view, the Board's attorney indicated that she wished to file a motion to dismiss on the ground of mootness, notwithstanding that the trial was to commence the next day. The parties agreed to a delay of the trial to accommodate the filing of the motion without the parties undergoing the expense of the trial first.

The Board's subsequently filed motion and related papers reveal that following the revocation of the building permit on June 21, 2017, Washington Mills filed an application on September 25, 2017, to "[r]enovate existing 1st floor only into 19 Studio Apartments," at a stated cost of construction of $2,500,000.00. The application was approved and building permit no. 2017331 was issued on September 26, 2017, authorizing Washington Mills to "renovate existing vacant bldg. into 19 studio apartments." As noted above, by the time I viewed the property on March 7, 2019, the renovation, at a stated cost of approximately $2,500,000.00, was substantially complete.


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 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 Rule 12(b)(1), 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. When considering a Rule 12(b)(1) motion, the court may consider materials outside the pleadings if used to support the movant's claim that the court lacks subject matter jurisdiction. In this case, such materials include the representations by the parties in the joint pre-trial conference memorandum, the undisputed submissions included with the Board's motion to dismiss, and my observations on the view. Talmo v. Zoning Bd. of Appeals of Framingham, supra, 93 Mass. App. Ct. at 629, n. 5, quoting in part Berlandi v. Commonwealth, 314 Mass. 424 , 451 (1943) ("information properly acquired upon a view 'may properly be treated as evidence in the case'"),

The Board argues that the motion to dismiss should be granted because Washington Mills no longer has a justiciable interest in the revoked building permit, having abandoned that permit by applying for and being granted a new permit for a different project on the same site, and then building that project to near-completion. It therefore no longer has standing to pursue its claims seeking the issuance of a building permit it can no longer use. The Board thus relies on the principle that "[o]rdinarily, litigation is considered moot when the party who claimed to be aggrieved ceases to have a personal stake in its outcome." Blake v. Mass. Parole Bd., 369 Mass. 701 , 703 (1976) (inmate's appeal of denial of parole rendered moot by his release for other reasons).

This principle of mootness is equally applicable in the land use arena. See, Town of Swampscott v. Knowlton Arms, 272 Mass. 475 (1930) (dispute over validity of building permit rendered moot by failure of owner to act on permit before it expired); Monteiro v. Selectmen of Falmouth, 328 Mass. 391 (1952) (dispute over issuance of seasonal alcoholic beverages licenses rendered moot by expiration of licenses).

A plaintiff does not have standing to pursue an application for a permit that is no longer viable for reasons including withdrawal of an application in favor of another, or a superseding application that effectively renders the first application moot. In Ranney v. Bd. of Appeals of Nantucket, the court's determination that a subsequently filed special permit application to construct a new wing of a motel was properly issued, rendered consideration of an almost identical earlier special permit application moot. "Since our resolution of Case No. 2, the appeal of the grant of the special permit, is favorable to the motel owner, Case No. 1, his appeal from the board's initial denial of a permit, is moot." 11 Mass. App. Ct. 112 , 119 (1981).

Similarly, where a developer pursues alternative types of permits in order to construct a building project, the success of one proposal renders the other moot. Where a developer withdrew a special permit application because it was about to be denied, but was ultimately awarded alternative zoning relief allowing a project to go forward, the developer was not aggrieved, and so could not go forward with a G. L. c. 40A, ยง 17 appeal. Colangelo v. Board of Appeals of Lexington, 407 Mass. 242 , 247 (1990).

Washington Mills attempts to distinguish Ranney from the present action by arguing that in Ranney the first, moot special permit application was for a project almost identical to the one that was later approved, while Washington Mills' second application was for a substantially different project. This argument is inapposite, as the only relevant issue is whether the second project is going to be or, (as in the present case) has been built instead of the earlier proposed project. In other words, do the circumstances indicate that the first project has been abandoned?

Here, the differences between the first and second projects make it even more apparent than in Ranney that Washington Mills, by constructing an entire multi-million dollar residential development, has abandoned any serious argument that it retains any intention or ability to proceed with a project that would require it to spend what would certainly be substantial sums demolishing much of the work it has just completed and spending more substantial sums to turn residential apartments into storage units. The building, as presently redeveloped, has no provision for entry of vehicles into the building, has no provision for entry of vehicles into any of the units, and does not have provisions for the substantial new ventilation that would be required for a combined garage and storage use.

Washington Mills does not seriously contend otherwise. If it had any intention or ability to go forward with the storage unit project despite its construction of the studio apartments project, it had an opportunity to demonstrate as much in its opposition to the motion to dismiss, but failed to take the opportunity to do so. Instead, it contends only that "should it prevail in the instant action, Washington will have the right to develop the property for its originally intended use." Opposition to Motion to Dismiss, pp. 4-5. Where Washington Mills admits that the reason it went forward with the replacement project was to "mitigate its damages," it is inconceivable, and Washington Mills does not seriously contend otherwise, that after constructing a residential development at a cost of at least $2,500,000.00, it would significantly increase the cost of the project by demolishing some or all of the first project it had just constructed and incur the additional expense to build its desired storage unit project.

If Washington Mills retains an interest in vindicating a hypothetical right to construct something it cannot in good conscience represent it actually intends to build, which appears to be the case, that is not enough to justify litigating a moot case. "The controversy has become moot and courts do not decide such controversies." Monteiro v. Selectmen of Falmouth, supra, 328 Mass. at 392-393.


For the foregoing reasons, the defendants' Motion to Dismiss is ALLOWED. Judgment of dismissal will enter accordingly.

So Ordered.


[Note 1] "Whenever it appears by suggestion of a party or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action."

[Note 2] Although I was not able to access all of the units, I was informed by counsel for Washington Mills that the completed units I entered were substantially representative of the condition of the other units.