MISC 19-000095

June 11, 2019

Middlesex, ss.



Edward Doherty appeals under G.L. c. 40A, § 17, from the decision of the City of Cambridge Board of Zoning Appeal (BZA) upholding the Cambridge Building Commissioner's (commissioner) determination that the property at 12 Arnold Circle in Cambridge (property) is subject to the Inclusionary Housing Provisions, § 11.200 et seq. (§ 11.200), of the Cambridge Zoning Ordinance (ordinance). The BZA has brought the Defendants Members of the City of Cambridge Board of Zoning Appeal's Motion to Dismiss (Motion to Dismiss), seeking to dismiss Doherty's first amended complaint on the grounds that he lacks standing as a "person aggrieved" under the meaning of § 17 to bring this action. Doherty opposes the motion. Hearing was held on June 5, 2019, and the motion was taken under advisement. As set forth in this Memorandum and Order, the Motion to Dismiss is denied.

The Motion to Dismiss is brought pursuant to Mass. R. Civ. P. 12(b)(1), for lack of subject matter jurisdiction. A motion to dismiss for lack of subject jurisdiction unsupported by affidavit presents a "facial attack" based solely on the allegations of the complaint, which are taken as true for purposes of resolving the complaint. Hiles v. Episcopal Diocese of Mass., 437 Mass. 505 , 516 n.13 (2002). The court may, however, consider affidavits and other materials outside the pleadings when ruling on a motion to dismiss for lack of subject matter jurisdiction, at which point the burden falls to the plaintiff to prove the jurisdictional facts. Id. at 515-16.

The facts, as accepted only for the purposes of the Motion to Dismiss, are as follows. The property is a 12-unit apartment building owned by Kenneth B. Krohn. The property was the subject of an enforcement action in 2016 by the commissioner that led to the appointment of a receiver for the property. The receiver sought to facilitate the sale of the property to 12 Arnold Circle LLC (the LLC). The LLC sought a determination from the commissioner as to whether the property was subject to § 11.200. The commissioner determined that the LLC's proposal for the property "does violate the current [ordinance]. I was clear that any inclusionary housing requirements should be discussed with the Community Development Department Housing Division." The LLC appealed this determination to the BZA, which upheld the commissioner in a decision filed with the city clerk on January 28, 2019 (decision). On or about February 14, 2019, Doherty entered a purchase and sale agreement with Krohn to purchase the property (P&S), and then filed this appeal.

It is certainly correct that in order to have standing to challenge the decision, Doherty must be a "person aggrieved" by the decision. G.L. c. 40A, § 17; Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115 , 117 (2011); Planning Bd. of Marshfield v. Zoning Bd. of Appeals of Pembroke, 427 Mass. 699 , 702-703 (1998). In the Motion to Dismiss, the BZA does not challenge Doherty's status as standing in the shoes of the LLC, the petitioner to the BZA, and as the potential purchaser of the property under the P&S. Rather, treating Doherty as the owner of the property, the BZA argues that (1) Doherty does not have a presumption of standing and (2) even if he does, his claimed harm—loss of value to the property—is not a harm to an interest protected by G.L. c. 40A or the ordinance.

The BZA suggests that Doherty does not have a presumption of standing because he is not yet the owner of the property. This is not correct. "A plaintiff is entitled to a rebuttable presumption of aggrievement if [they are] a 'party in interest' under [G.L. c. 40A, ] § 11." Murrow v. Esh Circus Arts, LLC, 93 Mass. App. Ct. 233 , 235 (2018). "'Parties in interest' as used in this chapter shall mean the petitioner," as well as abutters. G.L. c. 40A, § 11. Therefore, the petitioner for relief from the board of appeals or special permit granting authority has a presumption of standing. Marinelli v. Board of Appeals of Stoughton, 440 Mass. 255 , 257 (2003). Doherty stands in the shoes of the petitioner LLC, and has a presumption of standing to bring this action.

Assuming for the purposes of the Motion to Dismiss that Doherty's presumption of standing has been rebutted, the BZA's second argument is also misplaced. The BZA suggests that a denied petitioner must meet the same standard for aggrievement as a third party (abutter or not), namely that he must show that "he suffers some infringement of his legal rights," Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996), a "right or interest . . . that the Zoning Act is intended to protect, either explicitly or implicitly." 81 Spooner Rd., LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692 , 700 (2012). Applying this standard, the BZA argues that Doherty has not shown that his harm is to an interest protected by c. 40A or the ordinance.

The problem with this argument is that it jumps past the primary definition of standing to bring an action under G.L. c. 40A, § 17—that is, that only a "person aggrieved by a decision of the board of appeals or any special permit granting authority" may appeal to the Land Court or the Superior Court. G.L. c. 40A, § 17. Petitioners or applicants for a permit or variance seek permission or relief to use their own property. If the requested permit or variance is denied, the petitioner or applicant is, by definition, aggrieved by that denial. As a party to the decision, the petitioner or applicant has no further need to define what interest they have in the denial. The extended case law on what constitutes aggrievement for the purposes of § 17 is meant to address when a third party—that is, a person who is not a party to the decision—can challenge a decision of the board of appeals or special permit granting authority. In that situation, it is necessary to determine whether the third party has actually suffered some harm from the decision the third party seeks to appeal. That is not a question that needs to be posed to the denied petitioner. Standing in the shoes of the LLC, the petitioner to the BZA whose application was denied by the decision, Doherty is a "person aggrieved by [the] decision" of the BZA. Id.

The BZA's reliance on Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374 (2009), is misplaced. In Wendy's, the plaintiff Wendy's had obtained a special permit and variance for its restaurant and drive-through in 1992. After these decisions were issued, the town and the Massachusetts Highway Department took some property from Wendy's and changed the traffic configuration, leading Wendy's to ask the Board of Appeals in 1997 to modify the decisions to allow additional curb cuts. The board denied the request, and Wendy's appealed the denial. Id. at 375-380. On appeal, the board argued that Wendy's failure to appeal conditions of the original special permit and variance foreclosed this appeal, an argument the SJC rejected. The SJC noted that "[h]ad Wendy's appealed from the board's decision in 1992, Wendy's likely would not have been an 'aggrieved party' because any claimed injury from the inchoate roadway project would have been speculative." Id. at 384. The BZA seizes on this language to support its argument that petitioners must satisfy the case law standards for standing.

This interpretation goes too far. The SJC was discussing the standard when a petitioner appeals not a denial, but a grant of the requested special permit or variance. In that situation, it is not unreasonable to ask how the petitioner is aggrieved by obtaining the relief it sought. The SJC noted in a footnote that "the permit holder here (Wendy's) was aggrieved by the denial of its application for modification in light of changed circumstances." Id. at 384 n.26. In other words, a petitioner whose application is denied is aggrieved by the denial, the situation that Doherty finds himself in here. In short, Doherty is a person aggrieved by the BZA's decision.

Therefore, for the foregoing reasons, the Motion to Dismiss is DENIED.