The Plaintiffs, Trustees of the Winchester House Condominium Trust (the "Trust") filed suit in both the Land Court and in Norfolk Superior Court, challenging redevelopment of property located at 40 Centre Street, Brookline. In the Land Court action, Case No. 17 MISC 000097, the Trust appealed a grant of a comprehensive permit by the Brookline Zoning Board of Appeals, to the Roth Family, LLC and 40 Centre Street, LLC (the "Private Defendants"), filed on February 8, 2017, for the construction of a 40-unit mixed income, rental housing project under G. L. c. 40B (the "Project"). In the Superior Court action, Docket No. 1982CV00579, the Trust seeks to protect a number of trees which are located on the boundary line between the Trust's property and the Project site.
As originally filed in the Land Court on February 27, 2017, the complaint included two counts (Count I challenging the grant of comprehensive permit and Count II seeking to protect the boundary line trees). With respect to Count I, on September 24, 2018, after hearing, the court (Piper, J.), issued an Order Denying in Part and Granting in Part Private Defendants' Motion for Summary Judgment dismissing the Trust's claims to the extent they were grounded in certain bases of aggrievement. With Respect to Count II, on April 23, 2019, the court (Rubin, J.), issued an Order on Private Defendants' Motions in Limine and Motion to Dismiss Count II for Lack of Subject Matter Jurisdiction, concluding that the Land Court lacked jurisdiction over the tree claims, and providing the Trust an opportunity to file a new case in Norfolk Superior Court, which the Trust filed on May 3, 2019. Pursuant to an Order of Assignment entered on June 5, 2019 by the Chief Justice of the Trial Court under G. L. c. 211B, ยง 9, a Justice of the Land Court (Rubin, J.) was assigned to sit as a Justice of the Superior Court Department for the purpose of hearing the Superior Court case.
These cases were tried together on December 16, 18, and 19, 2019. In a decision of even date, the court (Rubin, J.) has made findings of fact and rulings of law.
With respect to the Land Court case, Misc. No. 17 MISC 000097, in accordance the court's decision issued today, it is:
ORDERED and ADJUDGED that the decision of the Brookline Zoning Board of Appeals granting a comprehensive permit for property at 40 Centre Street, LLC, Brookline, filed with the town clerk on February 8, 2017 is hereby AFFIRMED; it is further
ORDERED and ADJUDGED that Count I of the complaint is DISMISSED; it is further
ORDERED that today's decision and this Judgment issued pursuant thereto, dispose of this entire Land Court case; the court has adjudicated or dismissed all claims by all parties in this action and has not reserved decision on any claim or defense; and it is further
ORDERED that no costs, fees, damages or other amounts are awarded to any party.
With respect to the Norfolk Superior Court, Docket No. 1982CV00579, in accordance the court's decision issued today, it is:
ORDERED and ADJUDGED that the complaint is DISMISSED; it is further
ORDERED that today's decision, and this Judgment issued pursuant thereto, dispose of this entire Superior Court case; the court has adjudicated or dismissed all claims by all parties in this action and has not reserved decision on any claim or defense; and it is further
ORDERED that no costs, fees, damages or other amounts are awarded to any party.
SO ORDERED
TRUSTEES OF THE WINCHESTER HOUSE CONDOMINIUM TRUST, CAROL MURPHY EDBERG, CYNTHIA ALLYN, BRADLEY COHEN and STANLEY BELASTOCK, Plaintiffs, v. JESSE GELLER, CHRISTOPHER HUSSEY, KATE POVERMAN, and STEPHEN CHIUMENTI as they constitute the BROOKLINE ZONING BOARD OF APPEALS, ROTH FAMILY, LLC and 40 CENTRE STREET, LLC, Defendants Consolidated With Superior Court Department Docket No. 1982CV00579 TRUSTEES OF THE WINCHESTER HOUSE CONDOMINIUM TRUST, CAROL MURPHY EDBERG, CYNTHIA ALLYN, BRADLEY COHEN and STANLEY BELASTOCK, Plaintiffs, v. ROTH FAMILY, LLC and 40 CENTRE STREET, LLC, Defendants