Plaintiffs are a number of residents and business owners in Cambridge's Inman Square neighborhood who seek to prevent the Defendant, City of Cambridge ("City"), from undertaking a construction project in Vellucci Plaza until the City's Planning Board has reviewed and approved the project under the Cambridge Zoning Ordinance ("Zoning Ordinance"). Vellucci Plaza occupies one of the narrow wedges created by the intersection of Hampshire Street and Cambridge Street in Inman Square in an area designated as an Open Space District under the Zoning Ordinance. The City's project would physically reconfigure the intersection and relocate the open space.
Plaintiffs initiated this action on May 15, 2019, when they filed their Verified Complaint against the City and the Board of Zoning Appeals and its members (the "Board"), appealing the Board's denial of their request to reverse the decision of the Commissioner of Inspectional Services denying their request for zoning enforcement. The Verified Complaint sets forth three counts against Defendants: for relief under G.L. c. 40A, §17 (Count I), injunctive relief under G.L. c. 214, §1 (Count II), and Declaratory Judgment under G.L. c. 231A (Count III). Underlying each of these claims is Plaintiffs' contention that the Zoning Ordinance regulates the project and may not proceed without a separate Planning Board review process and special permit. The City contends that no such process or permit is required because the type of work at issue, specifically relocation of a public way, is not subject to local zoning.
At an initial case management conference on July 10, 2019, the court raised the question of whether there was subject matter jurisdiction in the land court over these claims, and requested briefing from the parties. On August 19, 2019, Defendants filed a motion to dismiss the complaint in its entirety under Mass. R. Civ. P. 12 (b) (1) for lack of subject matter jurisdiction. Plaintiffs opposed the motion. Both parties appeared for a hearing on September 18, 2019. [Note 1] I conclude that a zoning challenge under G.L. c. 40A is not available to the Plaintiffs and the Land Court lacks subject matter jurisdiction. For the following reasons, this court ALLOWS Defendants' motion to dismiss.
FACTUAL ALLEGATIONS
The following factual allegations appear in the complaint, or otherwise appear as undisputed facts in the record, and are accepted as true for the purposes of this motion:
1. Hampshire Street and Cambridge Street intersect in the Inman Square neighborhood, creating an oblong four-way intersection (the "Intersection"). Vellucci Plaza occupies one of the narrow wedges created by the Intersection. Joint Statement for Case Management Conference ("Joint Statement"), pg. 3; Verified Complaint, ¶ 10.
2. Vellucci Plaza is a City-owned park within an Open Space District, where parks are an allowed use. The area was acquired by eminent domain in 1980. Defendants' Statement of Facts In Support of Their Motion to Dismiss ("Defendants' Statement"), Nos. 1-3; Plaintiffs' Response to Defendants' Statement of Facts in Support of Their Motion to Dismiss ("Plaintiffs' Response"), Nos. 1-3.
3. The City is undertaking the Inman Square Safety Improvement Project at Vellucci Plaza and in the surrounding area, which involves redesign of the Intersection and relocation, redesign, and reconstruction of Vellucci Plaza (the "Project"). Defendants' Statement, No. 4; Plaintiffs' Response, No. 4. Specifically, Hampshire Street is being relocated as it intersects Cambridge Street to run approximately 130 feet to the west of its current location. Defendants' Statement, No. 5; Plaintiffs' Response, No. 5.
4. As relocated for the Project, Hampshire Street will run through the current Vellucci Plaza. Defendants' Statement, No. 6; Plaintiffs' Response, No. 6. Vellucci Plaza will be relocated into the area where Hampshire Street is currently located, with no change in the size of the open space. Defendants' Statement, Nos. 6-7: Plaintiffs' Response, Nos. 6-7. [Note 2]
5. The City has applied for and obtained certain approvals for the road reconfiguration work in Vellucci Plaza, including a tree hearing pursuant to G.L. c. 87 for removal of public shade trees and a vote of the Legislature pursuant to Article 97 of the Amendments of the Massachusetts Constitution to release Vellucci Plaza from Article 97 protection. The Article 97 legislation was signed by Governor Baker on August 3, 2018. Defendants' Statement, No. 8; Plaintiffs' Response, No. 8; Verified Complaint, ¶¶ 45-47.
6. After reconstruction of Hampshire Street and Vellucci Plaza is complete, the City intends to undertake proceedings pursuant to G.L. c. 82, §21, to accept the relocated configuration of Hampshire Street. [Note 3] Defendants' Statement, No. 9; Plaintiffs' Response, No. 9
7. On January 14, 2019, Plaintiffs filed a request for zoning enforcement with the Commissioner of Inspectional Services ("Commissioner") seeking to prevent construction in Vellucci Plaza, without the City first receiving approval under the Zoning Ordinance. [Note 4] On January 28, 2019, the Commissioner denied Plaintiffs' request for zoning enforcement. Defendants' Statement, Nos. 10-12; Plaintiffs' Response, Nos. 10-12.
8. The Plaintiffs sought zoning enforcement on the basis that the Project is not permitted in an Open Space Zoning District, or requires a special Permit and a separate Planning Board review process pursuant to the Zoning Ordinance. Defendants' Statement, No. 11; Plaintiffs' Response, No. 11.
9. The Commissioner declined to take any zoning enforcement action concerning the Project, stating that the layout, relocation, or alteration of a public way is not subject to the Zoning Ordinance, citing Harrison v. Textron, 367 Mass. 540 , 549 (1975). The Commissioner further stated that §4.25 of the Zoning Ordinance was "not applicable to the Project because the physical improvements and amenities that are being proposed for the Project do not include construction of any building or structure that would require either a building permit, variance, or special permit and the proposed Project does not include uses set forth in §4.33.f, (other than a park and recreational use)." Verified Complaint, ¶ 62; Verified Complaint, Exhibit D.
10. On February 1, 2019, Plaintiffs filed an appeal of that denial with the Board. The Board denied the appeal in a decision dated April 26, 2019 (the "Decision"). Defendants' Statement, No. 13; Plaintiffs' Response, No. 13.
STANDARD OF REVIEW
Defendants' motion comes before the court pursuant to Mass. R. Civ. P. 12 (b) (1). "Subject matter jurisdiction is 'jurisdiction over the nature of the case and the type of relief sought . . . '" Middleborough v. Housing Appeals Comm., 449 Mass. 514 , 520 (2007), quoting Black's Law Dictionary 870 (8th ed. 2004); Lichoulas v. City of Lowell, 78 Mass. App. Ct. 271 , 277 (2010). In reviewing a motion to dismiss for lack of subject matter jurisdiction, the court takes the plaintiff's allegations in the complaint as true, as well as any favorable inference reasonably drawn therefrom. Sullivan v. Chief Justice Admin. & Mgmt. of the Trial Court, 448 Mass. 15 , 20-21 (2006); Opare's Case, 77 Mass. App. Ct. 539 , 540 n.1 (270). The court may consider 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 establish jurisdiction. Hill v. Episcopal Diocese of Massachusetts, 437 Mass. 505 , 515-516, (2002). 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).
LAND COURT JURISDICTION
The land court is a statutory court of limited jurisdiction and may only hear matters that fall within specific statutes, generally as specified in Chapter 185, §1 (a)-(t). Among others, these include cases where any right, title, or interest in land is involved and zoning challenges brought pursuant to the provisions of G. L. c. 40A, §§7, 17. G. L. c. 185, §§ (k), (p). Plaintiffs do not contend that their complaint involves any right, title, or interest in land, but instead cast their complaint under G. L. c. 40A, §17. That alone is not sufficient to confer jurisdiction if the allegations do not support jurisdiction. As observed in Janes Properties Ltd. v. Town of Groton, 23 LCR 1 , 23 (2015) (Misc. Case No. 13 MISC 480079) (Piper, J.): "This 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." (dismissing complaint for lack of jurisdiction to adjudicate issue concerning a subsurface sewage disposal system). [Note 5]
Defendants contend the land court does not have jurisdiction over this dispute because G. L. c. 40A does not apply to the laying out or relocation of public ways. Instead, according to Defendants, the statutory process for a municipality to lay out a public way is set forth in G. L. c. 82, and when that process is followed, a public way is created without the need to seek zoning approval. Plaintiffs, on the other hand, argue that G.L. c. 82 is not an exclusive process, and their request for zoning enforcement pursuant to G.L. c. 40A, §17 is properly before the land court. Plaintiffs also argue that the City is bound by its own Zoning Ordinance, which they argue regulates the Project. [Note 6]
DISCUSSION
In Massachusetts, public ways can be established in one of three ways: (1) laying out by public authority in the manner prescribed by statute pursuant to G.L. c. 82, §§1-32; (2) prescription; and (3) prior to 1846, a dedication by the owner to public use, permanent and unequivocal, coupled with express or implied acceptance by the public. Martin v. Building Inspector of Freetown, 38 Mass. App. Ct. 509 , 510 (1995); Rivers v. Warwick, 37 Mass. App. Ct. 593 , 594-595 (1994); Fenn v. Middleborough, 7 Mass. App. Ct. 80 , 83-84 (1979). The Project involves the first such approach.
The statutory procedures for cities and towns to lay out, alter, and relocate town ways and private ways appear at G.L. c. 82, §§21-25. That authority has long been recognized by the courts of the Commonwealth. See Boston & S. R. Co. v. Boston, 140 Mass. 87 , 91 (1885) ("A footway laid out by a town or city under the St. of 1874, c. 299, comes within the strict definition of a town way. There can be no doubt of the authority of the street commissioners of Boston to lay out a footway . . . "). See also Commonwealth v. Boston, 33 Mass. 442 , 446-448 (1835). As such, G.L. c. 82, §21 vests authority in the Cambridge City Council to lay out, relocate, or alter town ways. Section 21 provides:
The selectmen or road commissioners of a town or city council of a city may lay out, relocate or alter town ways, for the use of the town or city, and private ways for the use of one or more of the inhabitants thereof; or they may order specific repairs to be made upon such ways; and a town, at a meeting, or the city council of a city, may discontinue a town way or a private way.
Likewise, §21 authorizes cities and towns to discontinue town ways, without any prior notice requirement. Newburyport Redevelopment Authority v. Commonwealth, 9 Mass. App. Ct. 206 , 222-226 (1980) ("The question whether to discontinue a town way is political or legislative rather than adjudicatory."). In Kiernan v. City of Salem, 58 Mass. App. Ct. 181 (2003), the Appeals Court rejected a challenge to the town of Salem's discontinuance of a public way in order to facilitate expansion of the Peabody Essex Museum, and emphasized the importance of the municipal responsibility to lay out public ways under G.L. c. 82:
The tribunals which lay out and discontinue highways are required by the statutes to adjudicate upon the question what is for the public necessity and convenience; and what is convenient and advantageous to one part of the public may be detrimental to another. In whatever way one may be affected as one of the public by proceedings in regard to highways, he can neither be compelled to pay specially for benefits, nor permitted to receive compensation for damages. This rule, in its application to all the people for a long period of time, generally works substantial justice, although there may be under it cases of hardship.
Id. at 186, quoting Hammond v. County Comm'rs of Worcester, 154 Mass. 509 , 510-11 (1891).
To the extent Plaintiffs claim to have sustained property damage as a result of the Project, G.L. c. 82, §24 provides a right to seek recovery under G. L. c. 79. The land court, however, has no jurisdiction over eminent domain claims that jurisdiction being exclusively with the Superior Court. G.L. c. 79, §14. Plaintiffs do not make a claim for damages under G. L. c. 79, nor do they argue that the City has improperly laid out a way pursuant to G.L. c. 82. [Note 7]
Rather, Plaintiffs frame their disagreement with the reconfiguration of the City's plans for the Intersection as a zoning issue and mount a zoning challenge to the Project under G. L. c. 40A. I am convinced that G. L. c. 40A does not supplant the authority vested in cities and towns by G.L. c. 82 because the purposes of G. L. c. 40A are distinct from the laying out of public ways and do not extend to regulating public ways. The zoning act and the subdivision control law "share a similar purpose, which is to 'regulate the use of land to ensure the safety, convenience, and welfare of the inhabitants of municipalities.'" Kitras v. Zoning Adm'r of Aquinnah, 453 Mass. 245 , 251 (2009), quoting McElderry v. Planning Bd. of Nantucket, 431 Mass. 722 , 726 (2000).
[Note 8] Plaintiffs do not identify any legal authority to support their contention that zoning extends to the regulation of where and how public ways may be laid out. To the contrary, by its terms,
G. L. c. 40A does not regulate the laying out of roads, streets or ways. [Note 9] In fact, these terms only appear several times in G. L. c. 40A and typically as descriptors or points of reference.
[Note 10]
In maintaining that G. L. c. 40A is not applicable to the Project, the City relies on Harrison v. Textron, 367 Mass. 540 (1975). In Harrison, several neighbors argued that Farm River Drive, a newly accepted public way located within a residential district, violated the local zoning bylaw because it was used to provide access to the defendant Textron Inc.'s property in an area zoned for industrial use. [Note 11] The neighbors argued that Farm River Drive was subject to local zoning restrictions and could be used for residential purposes only. The Supreme Judicial Court rejected that argument and explained:
The plaintiffs argue, however, that even if Farm River Drive had attained the status of a public way, its use violated the zoning by-law because a public way is not exempt from the application of local zoning restrictions. This claim is contrary to the implication of our statement in Harrison v. Braintree, 355 Mass. at 656, 247 N.E.2d at 360 (1969), regarding possible solutions to the inaccessibility, in a zoning sense, of the Textron premises. We said: 'The town is not in a straightjacket. It may lay out public ways.'
Further:
Although a municipality is subject to its own zoning regulations . . . , we know of no authority for the proposition that a public way, laid out by municipal action, pursuant to statute, may be used only for purposes which are permitted in the zoning district in which the public way lies. The adoption of such a rule at this time would be both surprising and disruptive throughout the Commonwealth. If the issue were before us squarely, we would rule that the use of a public way is not restricted by local zoning provisions. Id. at 549-550. This conclusion is dicta, as noted in the last sentence above, because the town had obtained a special permit for Farm River Drive under the local bylaw (that bylaw allowed public or private ways in residentially zoned land to be used for access to other zoning districts). Nonetheless, the court's reasoning is clear - a rule that a public way, laid out by a municipality pursuant to G.L. c. 82, may be used only for purposes which are permitted in that zoning district would be unreasonable, disruptive, and inconsistent with long-standing practice.
Here, consistent with that reasoning, the City was not precluded from relocating Hampshire Street into the area currently occupied by Vellucci Plaza simply because that area was zoned for open space use. See Chaput v. Kane, 26 LCR 557 , 560 (2018) (Misc. Case No. 17 MISC 000062) (Long, J.) (citing Harrison, 367 Mass. at 560 and rejecting plaintiffs' claim under G. L.
c. 40A, §17 that parking a car on the street violated the local zoning bylaw "because zoning bylaws do not and, as a matter of zoning law, cannot regulate public ways. The use of public ways can only be regulated by a town's general bylaws, which are outside the zoning board's jurisdiction."). Indeed, following Plaintiffs' reasoning to its logical conclusion, any time that a city or town laid out, altered, or relocated a public way, zoning approval would be required (whether in a residential, commercial, industrial, or any other zoning district). G. L. c. 40A does not so require.
Plaintiffs also argue that the City has made itself subject to its own Zoning Ordinance by the terms of that ordinance. [Note 12] See Pierce v. Town of Wellesley, 336 Mass. 517 , 523 (1957); Drummey v. Falmouth, 87 Mass. App. Ct. 127 , 130 (2015). Even if Chapter 82 permitted the City to regulate public ways through local zoning, examination of the Zoning Ordinance reveals that the City did not do so. The Zoning Ordinance nowhere states that roadways are permitted in an Open Space District only upon Planning Board review and issuance of a special permit. The Zoning Ordinance nowhere regulates the construction of public ways. When the Zoning Ordinance uses the word "public way," it does so only as a reference point or descriptor and not as the subject of regulation. [Note 13] This omission is particularly noteworthy because the Table of Use Regulations set forth at §4.30 of the Zoning Ordinance occupies nine pages and provides a comprehensive list of public and private uses subject to Cambridge zoning. [Note 14]
Plaintiffs make several attempts to read the regulation of public ways into the Zoning Ordinance. Primarily, Plaintiffs rely on §4.25, titled "Non Open Space Uses in Open Space Districts." Section 4.25 provides, in pertinent part:
All uses in an Open Space District other than a park or recreation use permitted by Subsection 4.33.f shall comply with the procedural requirements of this Subsection prior to the issuance of any building or special permit, variance or other approval or before conveyance of any lot within the district.
According to Plaintiffs' reading of 4.25, because the Project is something other than a park or other recreational used permitted by §4.33.f, it must undergo a §4.25 process and a special permit is required. The flaw in Plaintiff's reasoning is that §4.33.f lies within the Table of Use Regulations which lay out an inclusive list of six categories of Local Government uses, but nowhere mentions the laying out or relocation of public ways. There are six categories of regulated Local Government uses in §4.33.f. Certain of these Local Governmental uses are permitted as of right in an Open Space District (fire or police stations, public parks, playgrounds or public recreational buildings and municipal libraries), others are prohibited (administrative offices) and others permitted only by special permit (museums and municipal service facilities). Nowhere does §4.33.f mention public ways. Read plainly, §4.25 does not in any way regulate the City's construction of public ways or require a permit for the Project.
Plaintiffs also attempt to categorize the Project as a "Municipal Service Facility," which requires a special permit under §4.33.f. The definition of a Municipal Service Facility in §2.00 of the Zoning Ordinance does not support this argument because, as defined, those facilities do not extend to underground utilities accessory in nature to another use. [Note 15] Further, as noted by the Commissioner in his denial of zoning enforcement, the City is not using Vellucci Plaza for its own municipal maintenance operations, rather the Project is a public way for the benefit of travel by the public.
In sum, because G. L. c. 40A does not regulate public ways and the Zoning Ordinance does not regulate the laying out of public ways, the land court does not have subject matter jurisdiction over Plaintiffs' challenge to the Project.
CONCLUSION
For the reasons stated above, this court ALLOWS Defendant's Motion to Dismiss the Verified Complaint.
SO ORDERED.
JOHN PITKIN, MICHAEL REPUCCI, MEGAN BROOK, DEBRA MANDEL, SARA MAE BERMAN, JONATHAN M. HARRIS, and GARY MITCHELL v. CITY OF CAMBRIDGE, CAMBRIDGE BOARD OF ZONING APPEALS, CONSTATINE ALEXANDER, As he is Chair of the BOARD OF ZONING APPEALS, And BRENDAN SULLIVAN, JANET O. GREEN, ANDREA A. HICKEY, SLATER W. ANDERSON, ALISON HAMMER, JIM MONTEVERDE, and LAURA WERNICK, as they are members of the BOARD OF ZONING APPEALS of the CITY OF CAMBRIDGE