MISC 19-000087

OCTOBER 8, 2020




Procedural History

Kenneth B. Krohn, Ph.D. (Krohn) filed the Complaint in this action on February 15, 2019, and the Verified Amended Complaint Pursuant to G.L. ch. 40A, § 17 on March 18, 2019, naming as defendants the Board of Zoning Appeal of the City of Cambridge and its members (the Board), as well as the eight members of the Board, and 12 Arnold Circle, LLC (12 Arnold). Krohn brought the action to appeal the decision of the Board that the property he then owned at 12 Arnold Circle, Cambridge (the property) was subject to the City of Cambridge's Inclusionary Housing Ordinance, City Ordinance No. 1392 (the Inclusionary Housing Ordinance) and to challenge the Inclusionary Housing Ordinance's validity. A companion case, Doherty v. Board of Zoning Appeal for the City of Cambridge, Land Court Misc. Case No. 000095 (2019) (companion case), was filed by Edward Doherty and Arnold Circle, LLC against the Board on February 19, 2019, around the time Arnold Circle, LLC entered into a purchase and sale agreement with Krohn to purchase the Property. The case management conference in both cases was held on March 18, 2019. On June 5, 2019, Krohn's Motion to File Second Amended Verified Complaint was allowed and the Second Amended Verified Complaint (Complaint) was deemed filed. The Complaint added the City of Cambridge as a defendant (the City of Cambridge and the Board are referred to together as the City) and brought two counts, one under G.L. c. 40A, § 17, and the other under G.L. c. 240, § 14A. Krohn stipulated that both counts sought the same relief: a declaration that the Inclusionary Housing Ordinance is invalid.

Subsequently, Krohn sold the property on July 24, 2019 to Arnold Circle, LLC. As a result and by his own admission, Krohn no longer holds any interest in the property.

On September 20, 2019, Krohn filed a Motion for Summary Judgment with Respect to his Claim under G.L. c. 240 § 14A, to which the City filed an Opposition and Cross-Motion for Summary Judgment on October 22, 2019. A hearing on the cross-motions was held on October 31, 2019, at which consideration of the cross-motions was stayed pending resolution of a settlement agreement in the companion case. After the companion case was reported settled, the court further stayed consideration of the cross-motions on December 26, 2019.

On February 24, 2020, the City filed Defendants' Supplemental Briefing in Support of Dismissal for Lack of Standing, thus converting the City's cross-motion for summary judgment to a motion to dismiss (Motion to Dismiss). On March 9, 2020, Krohn filed Plaintiff's Motion for Leave to File and Serve Plaintiff's Supplemental Verified Complaint (Motion for Leave), seeking to add 12 Arnold Circle, LLC as a defendant. On March 27, 2020, the City filed Defendants' Opposition to Plaintiff's Motion for Leave to File and Serve Plaintiff's Supplemental Verified Complaint, and on March 31, 2020, Krohn filed Plaintiff's Reply to Defendants' Opposition to Plaintiff's Motion for Leave to File and Serve Plaintiff's Supplemental Verified Complaint. On August 6, 2020, Krohn filed a Contingent Motion Based upon the "Public Interest Exception" to Mootness (Contingent Motion). After a hearing on September 4, 2020, the court took the Motion to Dismiss, Motion for Leave, and Contingent Motion under advisement. This Memorandum and Order follows.


1. Motion to Dismiss

The City argues that Krohn lacks standing to maintain his case because the challenged decision by the Board --the finding that the property is subject to the Inclusionary Housing Ordinance -- is now moot as a result of the settlement in the companion case. Krohn has argued that he does have standing, in the first instance because he had standing at the start of the case, and in any event because he still holds a disputed deposit from a former purchase and sale agreement that fell through from a former party, 12 Arnold Circle, LLC, which is in dispute as a result of the finding of the Board that the property was subject to the ordinance. This dispute is not a sufficient interest in property for the purposes of G.L. c. 240 § 14A. Thus, while Krohn retains standing, the case is nonetheless moot, and this court lacks subject matter jurisdiction to hear this case.

Krohn agrees that there is no longer a claim under G.L. c. 40A, § 17, as the appeal of the Board's decision was resolved by the settlement in the companion case. Moreover, if this case were brought today, Krohn would not have standing under G.L. c. 240, § 14A, because he is no longer the "owner of a freehold estate in possession in" the property. Id. Krohn argues that, because he did have standing under § 14A at the time of filing, he may maintain the action now. As Krohn correctly noted, "a court is not ousted of jurisdiction by subsequent events - jurisdiction once attached is not impaired by what happens later." Pelullo v. Landgren, 26 LCR 572 , 575 (2018) (Long, J.) quoting Landreth v. Zoning Bd. of Appeals of Truro, 88 Mass. App. Ct. 1115 , 2015 WL 7878549 at *3 (Rule 1:28 decision) (internal citations and quotations omitted). Subsequent events can, however, render a case moot. In Pelullo, the court, after finding that subject matter jurisdiction remained, went on to analyze the zoning claim under the doctrine of mootness, and determined that because the harm alleged had been mitigated, the claim was moot so long as the mitigation measures were maintained. Id. at 575-76. Other courts consider mootness to destroy standing itself. See Porcaro v. Town of Hopkinton, 2001 WL 1809814 at *2 (Mass. Super. 2001). In Porcaro, the Superior Court dismissed a claim after the subject of the suit, 3 lots of land, were sold after the filing of the case. Id. at *1. Putting aside whether mootness destroys standing or subject matter jurisdiction, even if Krohn retains standing, if the question in the case becomes moot, the court will not entertain the case. Norwood Hosp. v. Munoz, 409 Mass. 116 , 121 (1991).

This case is now moot. As in Porcaro, it is undisputed that Krohn sold the subject property, and no longer retains any right, title, or interest therein. Further, both the decision by the Board and the ordinance that Krohn sought to challenge are no longer in dispute with respect to the subject property by reason of the settlement in the companion case. Regardless of whether Krohn may retain standing because he did have an interest in the property at the time of filing this case, the legal claims he has brought are nonetheless moot.

Finally, this court does not have subject-matter jurisdiction over Krohn's alleged contract dispute. The Land Court, as it is often stated, is a court of limited jurisdiction. This court has jurisdiction over "[a]ll cases and matters cognizable under the general principles of equity jurisprudence where any right, title or interest in land is involved, including actions for specific performance of contracts." G.L. 185, § 1(k). In contrast, the Land Court has no subject-matter jurisdiction over general contract claims, unless "ancillary to claims related to any right, title or interest in land." Siqueira v. Greenwood, 25 LCR 643 , 644 (2017) (Long, J.). In Cooper v. Beaudet, 27 LCR 160 (2019) (Speicher, J.), a dispute over a deposit for a failed real estate transaction was dismissed, because there remained no "question of title to real estate," nor did either of the parties seek to have the court alter or make declarations as to title. Id. at 160. The court's general equity jurisdiction was not implicated simply because the contract at issue "happened to be for the sale of real estate." Id. Krohn's situation is similar-although the contract with 12 Arnold Circle, LLC was originally for the sale of real estate, the property has since been sold. Neither of the parties to that purchase and sale agreement seeks specific performance, nor is there any dispute as to the right, title or interest in the property that would grant this court jurisdiction to hear the claim pursuant to G.L. c. 240 § 14A. The only dispute remaining is as to the (not insignificant) deposit, which is insufficient to invoke the Land Court's subject-matter jurisdiction here.

2. Motion for Leave

For the same reasons stated above, the court denies Plaintiff's Motion for Leave to File and Serve Plaintiff's Supplemental Verified Complaint to add 12 Arnold Circle, LLC as a defendant. Krohn's dispute with 12 Arnold Circle, LLC, is over a security deposit now held by Krohn in connection with a failed purchase and sale agreement for the property. The evidence presented to the court does not show that this disagreement constitutes an actual controversy, that is a "real dispute caused by the assertion by one party of a legal relation, status, or right in which he has a definite interest," "where the circumstances attending the dispute plainly indicate that unless the matter is adjusted such antagonistic claims will almost immediately and inevitably lead to litigation." Bunker Hill Distrib., Inc. v. District Attorney for Suffolk County, 376 Mass. 142 , 144 (1978), quoting School Comm. of Cambridge v. Superintendent of Sch. of Cambridge, 320 Mass. 516 , 518 (1946) (internal quotations omitted). "In general, our courts will not adjudicate a dispute merely because a party is interested in what answer the courts will give." Maroney v. Planning Bd. of Haverhill, 97 Mass. App. Ct. 678 , 683 (2020). All that was presented to the court was an email from Sean Hope of 12 Arnold Circle, LLC dated February 5, 2019, (provided in Affidavit of Plaintiff dated November 12, 2019) requesting a full refund of the deposits. This is insufficient to establish an actual controversy, seeing as over 18 months have since passed without a suit being filed, and without any other evidence since then that 12 Arnold Circle, LLC intends on filing a suit.

Even if it were ripe, as noted above, this court has no jurisdiction over contractual disputes that are not "ancillary to claims related to any right, title or interest in land." Siqueira v. Greenwood, 25 LCR at 644. A claimed interest in a security deposit alone is not sufficient to invoke this court's jurisdiction. Cooper v. Beaudet, 27 LCR at 160. Krohn cannot create such jurisdiction by insisting that resolution of this security deposit dispute requires adjudication of the validity of the Inclusionary Housing Ordinance. The question of the validity of the Inclusionary Housing Ordinance is ancillary to the contract dispute, not the other way around. Because amending Plaintiff's complaint to add 12 Arnold Circle, LLC would not solve the mootness problem, the motion is denied.

3. Contingent Motion

As mentioned above, courts ordinarily will not decide moot questions. Norwood Hosp. v. Munoz, 409 Mass. at 121. However, courts may opt to entertain moot questions where "(1) the issue was fully argued on both sides; (2) the question was certain, or at least very likely, to arise again in similar factual circumstances; (3) where appellate review could not be obtained before the recurring question would again be moot; and (4) most importantly, the issue was of public importance." Ott v. Bos. Edison Co., 413 Mass. 680 , 683 (1992). In his Contingent Motion, Krohn argues that the court should decided the validity of the Inclusionary Housing Ordinance, notwithstanding this case's mootness, based on this public interest exception.

While the issue has been fully argued on both sides, and accepting that there is a chance this question will arise again before the Board, Krohn has failed to demonstrate that appellate review could not be obtained in such a case before the question again became moot. Unlike questions of preliminary criminal procedure, abortion rights, or issues involving the rights of the mentally ill, there is nothing to indicate that the question of the legality of the inclusionary housing ordinance is one that is "capable of repetition, yet evading review." Acting Superintendent of Bournewood Hosp. v. Baker, 431 Mass. 101 , 103 (2000) (internal citations omitted). Condominium buildings burdened by the ordinance will, by design, continue to be burdened into the future. Krohn's allegations that the City of Cambridge will prevent the question from being adjudicated by "aggressively settling" any similar case challenging the ordinance is merely speculative, and does little to show that the nature of the question itself will prevent it from being reviewed before becoming moot.

Nor is this court convinced that this is an issue of public importance. While this issue may have an impact upon real estate developers and investment-property holders in the City of Cambridge, this court is not persuaded that answering the questions presented by Krohn are so important to the public interest generally that the bar against deciding moot questions should be overridden.


For the forgoing reasons, the Motion to Dismiss is ALLOWED, the Motion for Leave to Amend Complaint is DENIED, and the Contingent Motion is DENIED. Judgment shall enter dismissing the Complaint with prejudice.