MISC 18-000474

January 16, 2019

Plymouth, ss.



David A. Barry, Trustee of the 91 Lazell Street Realty Trust (91 Lazell Trust), and Nancy B. Barry, Trustee of the Zero Lazell Street Realty Trust (Zero Lazell Trust), (collectively, Plaintiffs) filed a verified complaint (original complaint) on September 14, 2018, against Steven Murphy, Chief of the Hingham Fire Department (Fire Chief); Michael J. Clancy, Hingham Building Commissioner (Building Commissioner); and the Town of Hingham (Hingham) (collectively, Defendants). Plaintiffs seek a determination as to the validity of a requirement set forth in a certain "Policy Statement Regarding Town of Hingham Bylaws, Fire Prevention Regulations Article 32, Section 9—Fire Hydrants" (Policy Statement). The original complaint contained four counts and cited G. L. c. 12, § 11I, c. 185, § 1, c. 231A, § 1, c. 240, § 14A, as the basis for the court's subject matter jurisdiction.

On October 22, 2018, Defendants filed a motion to dismiss for lack of jurisdiction and failure to state a claim pursuant to Mass. R. Civ. P. 12 (b) (1) and 12 (b) (6) (motion to dismiss). Simultaneously, Defendants submitted a concise statement of facts (concise statement) and a memorandum in support of the motion to dismiss. Thereafter, Plaintiffs submitted an amended verified complaint (amended complaint) on October 29, 2018. In addition to certain minor wording revisions, the principal change in the amended complaint was in paragraph 11, which added G. L. c. 40A, § 7 to the list of statutes cited for jurisdiction. [Note 1]

In a telephone conference call held on November 6, 2018, counsel for Defendants stated that he saw no need to supplement his submissions in response to the amended complaint and would proceed with the motion to dismiss as originally filed. On November 21, 2018, Plaintiffs submitted an opposition to the motion to dismiss (opposition), a response to the concise statement, a memorandum of law, and an appendix (Plaintiffs' appendix). Defendants filed a reply to the opposition on November 30, 2018.

The parties appeared before this court (Lombardi, J.) on December 4, 2018, and argued the motion to dismiss. At the conclusion of the hearing, the matter was taken under advisement.


A. Facts

The Hingham Town Meeting adopted Article 28 of the 1989 Annual Town Meeting Warrant that amended the Hingham General By-Laws by adding a new section to Article XV entitled "Article XV-P Fire Prevention Codes" (1989 General By-Law). [Note 2] In pertinent part, Section 9 of Article XV-P pertained to placement of new hydrants, including the requirements that "[h]ydrants shall not be spaced more than eight hundred (800) feet apart in residential areas," and "[a]ll expenses incurred in the placing of such hydrants shall be paid by the developer."

As owners of undeveloped land on Lazell Street, David A. Barry and Nancy B. Barry recorded a plan with the Plymouth Registry of Deeds on March 28, 2016 (2016 plan), which divided the land into Lot 2 and Lot 3 in their current configuration (collectively, Barry Parcels). Currently, Lot 2 is owned by 91 Lazell Trust and contains 118,546 square feet of land; Lot 3 is owned by Zero Lazell Trust and consists of 397,900 square feet. The 2016 plan was recorded in Plan Book 60, Page 414. The Hingham Planning Board endorsed the plan creating the Barry Parcels as "Approval Under The Subdivision Control Law Not Required" (ANR). Thus, the Barry Parcels are not subject to the Hingham Planning Board Subdivision Rules & Regulations.

Prior to the recording of the 2016 plan, David A. Barry and Nancy B. Barry entered into a Purchase and Sale Agreement (Agreement) on or about May 27, 2015, for the sale of the Barry Parcels with a third-party buyer (buyer). The Agreement was conditional on the buyer's satisfactory completion of various due diligence development contingencies.

While the buyer was engaged its due diligence, the Fire Chief issued the Policy Statement on January 24, 2017. [Note 3] In pertinent part, the Policy Statement announced that "[c]onstruction of any new principle [sic.] residential . . . building on a vacant lot is considered development for the purpose of requiring a hydrant under this bylaw." The Policy Statement also provided that "[w]here there is no hydrant available within 800 feet in a residential area . . . , the water main must be extended to meet this requirement" (Water Main Requirement).

According to Plaintiffs, several new single-family dwellings have been issued building permits in areas more than 800 feet from a water main or hydrant. Plaintiffs also believe that no building permits for single-family dwellings have been refused for failing to comply with the Water Main Requirement, "with the exception of the Barry Parcels."

Plaintiffs claim that it is "clear that no building permit would issue for either of the Barry Parcels unless the applicant could demonstrate compliance with the Water Main Requirement and commit at its cost to extending water mains . . . to within 800 feet of the Barry Parcels." This claim is based upon the fact that the Building Commissioner posted the Policy Statement at the Building Department. Plaintiffs admit that no one has sought a building permit for either of the Barry Parcels.

The estimated cost of complying with the Water Main Requirement, according to Plaintiffs, is approximately $650,000.00. Faced with this estimate, the buyer exercised its right to terminate the Agreement.

B. Claims

Count One asserts that the Water Main Requirement (a) "is contrary to, unsupported by and defies the plain meaning of" the 1989 General By-Law; (b) is "an arbitrary, unreasonable and inconsistent interpretation of the plain meaning of [the 1989 General By-Law] to the extent that it purports to restrict or limit the present or future use, enjoyment, improvement or development of land, or any part thereof, or of present or future structures thereon;" and (c) is unenforceable.

Count Two maintains that the Policy Statement (a) "purport[s] to impose the Water Main Requirement not only on subdivisions subject to the Subdivision Control Law and Subdivision Regulations but on all new construction on all vacant lots located in the Town of Hingham"; (b) "constitutes an attempt to effectively amend the Zoning By-Law . . . in a manner that does not comply with the provisions of G. L. [c.] 40A, § 5;" and (c) is unenforceable as "an invalid municipal ordinance, by-law or regulation passed under the provisions of chapter 40A or any special law relating to zoning within the meaning of G. L. [c.] 240, § 14A "

Counts Three and Four raise constitutional claims. Count Three contends the Water Main Requirement constitutes selective treatment of Plaintiffs "without any sufficient rational basis, in violation of their constitutionally protected rights to equal protection." Count Four avows the Water Main Requirement "impose[s] an economically coercive condition impermissibly interfering with Plaintiffs' constitutionally protected right to use, enjoy and develop" the Barry Parcels.


In reviewing a motion to dismiss under Mass. R. Civ. P. 12 (b) (1) for lack of subject matter jurisdiction, the court "assume[s] as true the allegations contained in the plaintiff's complaint . . . ." Cross v. Commissioner of Corrections, 27 Mass. App. Ct. 1154 , 1154 (1989). Additionally, "the judge may consider affidavits and other matters outside the face of the complaint which are used to support the movant's claim that the court lacks subject matter jurisdiction." Ginther v. Commissioner of Ins., 427 Mass. 319 , 322 n.6 (1998). In this context, disputed facts "are not viewed in the light most favorable to the nonmoving party." Wooten v. Crayton, 66 Mass. App. Ct. 187 , 190 n.6 (2006).

With a motion to dismiss brought under Mass. R. Civ. P. 12 (b) (6), the court "examine[s] the sufficiency of the plaintiff's claims in light of the principles that the allegations of the complaint, as well as such inferences as may be drawn therefrom in the plaintiff's favor, are to be taken as true." Blank v. Chelmsford Ob/Gyn, P.C., 420 Mass. 404 , 407 (1995). As for the sufficiency of the complaint, the court does not accept "legal conclusions cast in the form of factual allegations." Schaer v. Brandeis Univ., 432 Mass. 474 , 477 (2000). Instead, "[f]actual allegations must be enough to raise a right to relief above the speculative level . . . [based] on the assumption that all the allegations in the complaint are true (even if doubtful in fact) . . . ." Iannacchino v. Ford Motor Co., 451 Mass. 623 , 636 (2008), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alterations in original). They must "plausibly suggest[]" that the plaintiff is entitled to relief. Id., quoting Bell Atl. Corp., supra, at 557.

Generally, if matters outside the pleadings are presented to and not excluded by the court, the motion will be treated as a motion for summary judgment. Mass. R. Civ. P. 12 (b), 12 (c). The court may, however, 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. See Marram v. Kobrick Offshore Fund, Ltd., 442 Mass. 43 , 45 n.4 (2004). See also Schaer, supra, at 477.


A. Land Court Jurisdiction

The amended complaint raises various arguments and legal theories concerning the Policy Statement. The essence of this action, however, is Plaintiffs' claim that the Policy Statement is akin to a zoning enactment because it affects their ability to develop the Barry Parcels. Before discussing the counts of the amended complaint, it is appropriate to first review the statutes Plaintiffs cite for jurisdiction.

The land court is a statutory court of limited jurisdiction and may only hear matters that fall within specific statutes. With few exceptions not relevant here, the jurisdiction of the land court is found in G. L. c. 185, § 1 (a)-(t). A general reference to G. L. c. 185, § 1, in paragraph 11 of the amended complaint fails to establish jurisdiction without specifying the relevant subsection(s).

Under G. L. c. 231A, § 1, the land court is included among the courts 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 . . . ." These courts, however, may make declarations only "within their respective jurisdictions." Id. (emphasis added). [Note 4] Thus, a count for declaratory judgment standing alone does not provide subject matter jurisdiction.

Acknowledging the declaratory judgment statute "does not create any independent jurisdiction" in this court, Plaintiffs invoke G. L. c. 185, § 1 (k), as the basis for jurisdiction. Under this statute, the land court has jurisdiction of "[a]ll cases and matters cognizable under the general principles of equity jurisprudence where any right, title or interest in land is involved . . . ."

Once again, the statutory language is not open-ended. The basic intent of this statute can be found where the Supreme Judicial Court found, in reference to G. L. c. 185, § 1 (k), that the land court has "jurisdiction of suits in equity to quiet title or establish the title to land or to remove a cloud from the title thereto." Daley v. Daley, 300 Mass. 17 , 21 (1938). The phrase "any right, title or interest in land" has not been found sufficient to provide jurisdiction in various land court cases. See, e.g., Janes Properties Ltd. v. Town of Groton, 23 LCR 1 (2014) (Misc. Case No. 13 MISC 480079) (Piper, J.) (dismissing complaint for lack of jurisdiction to adjudicate issue concerning a subsurface sewerage disposal system); Sayle v. Nantucket Conservation Comm'n, 12 LCR 438 , 439 (2004) (Misc. Case No. 301051) (Lombardi, J.) (transferring to superior court G. L. c. 249, § 4 action pertaining to non-zoning wetlands by-law). As the Janes court observed, "[t]his court does not have general and wide-ranging subject matter jurisdiction to hear all manner of ‘land-use' disputes as part of the court's limited power to adjudicate certain . . . cases." Janes Properties Ltd., supra, at 3.

Among the prayers for relief in the amended complaint, Plaintiffs seek declarations under G. L. c. 231A, § 1, that the Water Main Requirement is an invalid and unenforceable interpretation of a municipal by-law to the extent it is a precondition to the approval of a building permit, and that the "attempted" enforcement of the Water Main Requirement constitutes a violation of Plaintiffs' rights of equal protection under Article XIV of the United States Constitution. While not citing G. L. c. 231A, § 1, Plaintiffs seek a declaration in the fourth prayer under G. L. c. 12, § 11I, that the "attempted" enforcement of the Water Main Requirement constitutes a violation of Plaintiffs' rights to develop the Barry Parcels under Article I of the Massachusetts Constitution. [Note 5]

B. Plaintiffs' Constitutional Claims

The constitutional claims will be addressed first. Section 11H of G. L. c. 12 permits the attorney general to prosecute rights violations in the superior court in the county where the violation occurred or in the county where the defendant resides or has a place of business. Under G. L. c. 12, § 11I, the legislature has created a private right of action for impairment of civil rights. In pertinent part, the section provides that "[a]ny person whose . . . rights secured by the constitution or laws of the United States, or . . . by the constitution or laws of the commonwealth . . . may institute and prosecute in his own name and on his own behalf a civil action . . . as provided for in" G. L. c. 12, § 11H.

Plaintiffs have not provided any authority to suggest that claims under G. L. c. 12, § 11I, may be brought in any court other than the superior court. In fact, judges of this court have previously ruled that claims under G. L. c. 12, §§ 11H, 11I, are not within the jurisdiction of the land court. See, e.g., Janetka v. Wilcox, 14 LCR 156 , 156 n.1 (2006) (Misc. Case No. 282540) (Sands, J.); Erenberg, v. Town of Provincetown, 13 LCR 5 , 6 (2005) (Misc. Case No. 281704) (Piper, J.); Barbour v. Velozo, 12 LCR 273 , 274 n.1 (2004) (Misc. Case No. 269382) (Lombardi, J.).

Independent of G. L. c. 12, § 11I, the amended complaint alleges certain constitutional violations. Count Three maintains that the selective treatment experienced by Plaintiffs is in violation of their constitutionally protected rights to equal protection. Count Four claims that the Water Main Requirement impermissibly interferes with their constitutionally protected right to use, enjoy, and develop the Barry Parcels. Similar to requests for declaratory judgments, constitutional claims in the land court are not free floating and untethered to subject matter jurisdiction.

On occasion, this court has entertained a variety of constitutional challenges under both the United States and Massachusetts Constitutions. The key element, however, is that such claims have arisen in instances where the complaints pertain to matters already within the court's subject matter jurisdiction. See, e.g., HRPT Med. Realty Trust v. Boston Zoning Comm'n, 20 LCR 94 , 101-102 (2012) (Misc. Case No. 09 MISC 396768) (Grossman, J.) (determining zoning amendment not spot zoning in violation of equal protection); Rosenberg v. City of Boston, 18 LCR 253 , 257, 260 (2010) (Misc. Case No. 08 MISC 377101) (Trombly, J.) (concluding zoning amendment not regulatory taking or violation of equal protection); Ravech v. Town of Hanover, 18 LCR 22 , 29 (2010) (Misc. Case No. 01 MISC 276445) (Piper, J.) (invalidating adult-use zoning by-law where insufficient number of parcels could qualify); Bruni v. Gambale, 16 LCR 534 , 536-537 (2008) (Misc. Case No. 313482) (Trombly, J.) (ruling plaintiff failed to properly challenge by-law as infringing on constitutionally protected commercial speech); Barbour, supra, at 277-278 (finding by-law not violation of constitutionally protected free speech); Johnson v. Town of Edgartown, 4 LCR 14 , 15-18 (1996) (Misc. Case No. 198373) (Cauchon, C.J.) (considering meritless allegation that zoning by-law amendment violated due process and constituted taking).

C. Jurisdiction Under G. L. c. 240, § 14A

All of these considerations bring the discussion back to the central question: whether the Water Main Requirement is considered a zoning amendment for which this court may consider its validity. Of the various bases cited by Plaintiffs, the only possible jurisdictional avenue remaining for jurisdiction is G. L. c. 240, § 14A. This statute provides that the owner of land may institute an action in this court

for determination as to the validity of a municipal . . . by-law or regulation, 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, or of present or future structures thereon . . . or for determination of the extent to which any such municipal . . . by-law or regulation affects a proposed use, enjoyment, improvement or development of such land by the erection . . . of structures thereon . . . .

G. L. c. 240, § 14A. A landowner need not apply for a permit or even have development plans to bring a case under this statute. Essentially, this provision allows the court to issue an advisory opinion regarding the validity or extent of a municipal by-law. The scope of such an opinion, however, is not unlimited. The by-law at issue must have been adopted "under the provisions of chapter forty A or under any special law related to zoning." Id.

Plaintiffs acknowledge that the 1989 General By-Law was enacted by the voters at the Hingham Town Meeting as a general by-law and was not adopted under G. L. c. 40A, § 5. In their response to the concise statement, Plaintiffs admit that this action arises from the 1989 General By-Law and that the Policy Statement was "based upon the 1989 General By-Law." It is undisputed that the Policy Statement was not passed or adopted by the Hingham Town Meeting under the provisions of G. L. c. 40A, § 5, or any special law related to zoning. Plaintiffs, however, insist that the Policy Statement "constitutes an attempt to effectively amend the Zoning By-Law of the Town of Hingham in a manner that does not comply with the provisions of G. L. [c.] 40A, § 5." [Note 6] Further, Plaintiffs maintain that the Policy Statement, to the extent it purports to apply to ANR lots, is an invalid municipal ordinance, by-law or regulation enacted under a "special law relating to zoning within the meaning of G. L. [c.] 240, § 14A[,] and is unenforceable as such pursuant to the provisions of G. L. [c.] 40A, §§ 5 & 7." [Note 7]

For support, Plaintiffs cite familiar appellate cases interpreting G. L. c. 240, § 14A, such as Whitinsville Retirement Soc. v. Northbridge, 394 Mass. 757 (1985), and Harrison v. Braintree, 355 Mass. 651 (1969). While Plaintiffs are correct that both cases stand for a broad construction of the statute, the outcome of both decisions turned on the specific zoning by-laws of the two municipalities. Plaintiffs fare no better in citing Rattigan v. Wile, 3 LCR 99 (1995) (Misc. Case Nos. 185358, 200190) (Kilborn, J.) and Coulon v. Town of Nantucket, 8 LCR 317 (2000) (Misc. Case No. 236985) (Scheier, C.J.). While noting the broad construction to be given to G. L. c. 240, § 14A, both decisions ruled that the statute did not apply to the facts of the case.

Plaintiffs also rely upon Rayco Inv. Corp. v. Selectmen of Raynham, 368 Mass. 385 (1975) for the argument that a non-zoning by-law that limited the use of property violated the procedures set forth in G. L. c. 40A. The Rayco Court held that a by-law limiting the total number of trailer park licenses "must be viewed as a zoning regulation. It is apparent that the nature and effect of the 1971 by-law is that of an exercise of the zoning power." Id. at 392. The outcome of Rayco, however, is best explained in Lovequist v. Conservation Comm'n of Dennis, 379 Mass. 7 (1979), where the court stated the Raynham by-law limiting trailer park licenses was viewed as a zoning regulation

due to the historical context in which it had been enacted. We observed in that case that for a considerable number of years the town had been governed by a zoning by-law which "purported to cover [the] subject [of trailer parks] in a comprehensive fashion," and we thus determined that the challenged by-law was most appropriately viewed as an amendment to that enactment.

Id. at 14, quoting Rayco, supra, at 393. No similar historical context applies to how fire hydrants have been governed in Hingham. As the Lovequist Court stated succinctly, "[w]e do not consider all . . . by-laws that regulate land use to be zoning laws " Id. at 12.

In a more recent decision, it was determined that a parking component of a challenged ordinance "is a matter for regulation through the town's zoning power, not through its use of a general ordinance." Spenlinhauer v. Town of Barnstable, 80 Mass. App. Ct. 134 , 139 (2011). Similar to the facts of Rayco, the court noted that, before adopting the ordinance at issue, Barnstable "regulated off-street parking through its zoning bylaws." Id. at 140.

This court also does not read Newbury Junior College v. Brookline, 19 Mass. App. Ct. 197 (1985) as strengthening Plaintiffs' arguments. In that case, the Brookline Selectmen denied the college's applications for lodging house licenses for buildings that had been used as dormitories by a predecessor college since 1966. Id. at 198-200. There, the trial judge opined that an "educational use cannot be prohibited by zoning. To allow such use to be prohibited by any backdoor method . . is . . . wrong." Id. at 207 (omissions in original).

Newbury, however, is distinguishable from the case at bar for more than one reason. First, the court began its discussion by observing "[t]he appropriate review of licensing proceedings is in the nature of certiorari." Id. at 201. Even though the trial judge purported to act under G. L. c. 231A and G. L. c. 185, § 1 (k), the court determined the college's complaint "sought relief in the nature of certiorari, and the judge's decision comes to grips with the questions which are posed by review in the nature of certiorari . . . ." Id. Second, the issue was not that the boarding house license procedure should have been a zoning enactment; it was that a municipality could not thwart a legitimate Dover Amendment use, whether by zoning, general by-laws, or licensing procedures.

A plain reading of the Policy Statement and the amended complaint fail to persuade this court that the Policy Statement was enacted under a special law relating to zoning. It is of particular significance that the Policy Statement was not "passed or adopted" by any legislative body. Rather, the Fire Chief issued an interpretation of the 1989 General By-Law that he called a "policy statement." Plaintiffs have cited no case, and this court is unaware of one, where a directive or order issued by any municipal official has been deemed to be passed or adopted under any special law related to zoning.

If Plaintiffs believed that the Fire Chief was without authority to issue the Policy Statement or committed an error of law in doing so, they should have timely challenged his action. In the absence of any specific statutory right of appeal from the Fire Chief's action, Plaintiffs should have sought judicial review by filing a complaint in the nature of certiorari. See MacLaurin v. Holyoke, 475 Mass. 231 , 236-238 (2016). Such complaint, however, must be "commenced within sixty days next after the proceeding complained of." G. L. c. 249, § 4.

Alternatively, Plaintiffs may apply for one or more building permits for the Barry Parcels. If denied, Plaintiffs could appeal under G. L. c. 40A, § 8, and bring their arguments concerning the Policy Statement to the permit granting authority.


For the reasons stated above, this court allows the motion to dismiss. Judgment shall enter accordingly.



[Note 1] Paragraphs 32 and 33 of the amended complaint also allege a violation of G. L. c. 40A, § 5.

[Note 2] Amended Complaint, Exs. C, D. Article XV is now known as Article 32 of the Hingham General By-Laws. Plaintiffs' appendix, Ex. 3.

[Note 3] Amended Complaint, Ex. A.

[Note 4] Prior to bringing this action, Plaintiffs did not seek a building permit for either of the Barry Lots. Thus, there is no evidence that the Building Commissioner would refuse to issue a building permit based upon the Water Main Requirement. Even assuming an actual controversy exists regarding Plaintiffs' ability to obtain a building permit, there must be underlying jurisdiction before this court may issue a declaratory judgment.

[Note 5] It should be noted that in a proceeding involving the validity of a municipal by-law, not only is the municipality to be made a party, "the attorney general shall also be notified of the proceeding and be entitled to be heard" where the constitutionality of the by-law is at issue. G. L. c. 231A, § 8. Plaintiffs have not shown that such notice has been given to the attorney general.

[Note 6] Amended complaint, ¶ 32.

[Note 7] Amended complaint, ¶ 33.