LAWRENCE BUCCI and PAMELA BUCCI v. DARREN WIZST, KATE HOLLISTER, MICHEL E. BONEFANT, DYLAN H. O'CONNOR and GARY LAVELLE in their capacities as Members of the WESTFORD PLANNING BOARD and LINDSEY CAMPBELL and WILLIAM CAMPBELL

INTRODUCTION

Plaintiffs Lawrence Bucci and Pamela Bucci ("Mr. Bucci" and, with his wife, "the Buccis") commenced this action with the filing of a complaint on July 8, 2019 ("the Complaint") against the defendants Darren Wizst, Kate Hollister, Michael E. Bonenfant, Dylan H. O'Connor and Gary Lavelle, as members of the Town of Westford ("the Town") Planning Board ("the Board"), and Lindsey Campbell and William Campbell ("Ms. Campbell" and, with her husband, "the Campbells") pursuant to G.L. c. 41, §§81B, [Note 1] 81V, 81Y and 81BB of the subdivision control law and G.L. c. 231A, the declaratory judgment act. In the Complaint, the Buccis seek to annul a decision of the Board approving a modification of a previously approved subdivision plan to delete a reference to a proposed natural gas line therein. Complaint, Count I. The Buccis also seek a declaration that the Board's action "has not affected their rights under any contractual agreements with the Campbells." Complaint, Count II.

On or about October 11, 2019, the Board filed Defendant Westford Planning Board's Motion To Dismiss, in which the Board asserted the Complaint should be dismissed (1) pursuant to Mass. R. Civ. P. 12(b)(1), because this court lacked subject matter jurisdiction, the appeal rights granted by G.L. c. 41, §81BB not being available to the Buccis, and (2) pursuant to Mass. R. Civ. P. 12(b)(6), because the complaint failed to state a claim upon which relief could be granted, both because the Board had no choice but to allow the modification and because the Buccis' consent to the modification was not required as a matter of law. The Campbells filed Defendants Lindsey Campbell And William Campbell's Motion To Dismiss on the same date, relying on the same grounds as the Board, and also asserting that the Complaint should be dismissed pursuant to Mass. R. Civ. P. 12(b)(9), because of the existence of a prior pending action commenced by the Buccis against the Campbells in the Superior Court alleging contract and tort claims.

In response to the defendants' motions, the Buccis argued that they are persons aggrieved under G.L. c. 41, §81BB with standing to pursue their claims; that the Complaint states a claim for relief because the approved modification was substantial, not minor, requiring that the Buccis consent to it under G.L. c. 81W; and that rule 12(b)(9) does not apply where, as here, the parties and issues are not identical to those in the prior pending proceeding.

A hearing on the motions was held on December 18, 2019, after which the court invited supplemental memoranda regarding (1) whether the Buccis have standing to assert their claims, (2) whether G.L. c. 41, §81Y precludes the Buccis from raising the argument as to the Board's failure to enforce its rules regarding roadway inspections, and (3) whether omission of the natural gas line from the approved subdivision plan affects the marketability of the Buccis' title to their property. All parties filed supplemental memoranda, which have been considered by the court. For the reasons set forth below, the defendants' motions to dismiss are allowed.

THE ALLEGATIONS OF THE COMPLAINT [Note 2]

The Buccis' Complaint alleges that the Campbells are the owners of property located in Westford, Massachusetts that is the subject of a definitive subdivision plan approved by the Board ("the Approved Plan") in a decision dated May 31, 2018 ("the Decision"). Complaint ¶¶ 11-12 and Ex. B. The Approved Plan shows a three lot subdivision with a roadway, a cul-de-sac, and other infrastructure and amenities known as "Hummingbird Lane" ("the Hummingbird Lane Subdivision"). Complaint ¶ 11. The Campbells sought and received a number of waivers from the Board, Complaint ¶ 13 and Ex. B, and the Board imposed a number of "conditions of approval" in its Decision. Complaint Ex. B at pp. 7-12. Paragraph 16 of the conditions of approval ("Paragraph 16") states:

All work shall be done in accordance with the endorsed plans. Changes, revisions or modifications to the plans as approved herein deemed to be minor in nature may be approved by the Board at a public meeting. Changes, revisions or modifications deemed to be substantial shall require a public hearing.

The Approved Plan includes a Utility Plan, Ex. B at sh. 6, which shows a proposed underground gas line, the location of which, according to the notes on the plan, is to be confirmed by the utility company.

On or about February 25, 2019, the Buccis purchased Lot 2 of the Hummingbird Lane Subdivision for consideration of $330,000.00. Complaint ¶ 25 and Ex. D. In connection with that transaction, the Buccis and the Campbells also executed a subdivision construction contract ("the Construction Contract"). Complaint ¶ 27. The Buccis allege that the Construction Contract imposed on the Campbells the obligation to "'perform the work required by the Town of Westford for the roadway . . . utilities, and landscaping to obtain the appropriate' approvals and releases pertaining to the Subdivision Project." Id. The Buccis further allege that the Construction Contract expressly referenced and incorporated four documents, including the Approved Plan. Complaint ¶ 28. And, the Buccis allege that they relied on the Approved Plan and the Construction Contract, including the representation that natural gas would be provided to the subdivision, in deciding to purchase Lot 2 from the Campbells. Complaint ¶ 33.

On or about March 20, 2019, Ms. Campbell informed Mr. Bucci that, due to an ongoing National Grid employee lock-out, natural gas installation would be subject to extensive delay, and that the Campbells intended to switch to propane delivery in lieu of the natural gas line contemplated in the Approved Plan. Complaint ¶ 35. On May 17, 2019, Ms. Campbell informed Mr. Bucci that the road was going to be installed and paved over the next several days. Complaint ¶ 36. Mr. Bucci objected, stating that the installation of natural gas lines must proceed before paving the road, Complaint ¶ 37, and then notified Town officials of his objection to paving the road before the installation of the natural gas line. Complaint ¶¶ 38-40. The Campbells proceeded with construction of the road without having installed the natural gas line and without complying with the Board's rules and regulations regarding inspection of roadway construction. Complaint ¶¶ 41-42.

At a public meeting held on June 3, 2019, the Campbells requested of the Board that the Campbells "not install a proposed gas line as shown on the approved subdivision plan." Complaint ¶ 51 and Ex. A. The Buccis objected to the Campbells' request. Complaint ¶ 54. On 4-0-0 votes, the Board determined that the Campbells' request "constitutes a minor change to the approved plan" and "to authorize removing the requirement to install the proposed gas line as shown on the approved subdivision plan." Complaint Ex. A. The Board noted that "[i]nstallation of natural gas lines is not required under any provision of the Planning Board's Subdivision Rules and Regulations and was not required by the Planning Board as a condition of any waiver of said Rules and Regulations." Id. The Board also noted that other options, such as propane gas, were readily available; that the lack of a natural gas line did not prevent development of any of the lots within the Hummingbird Lane Subdivision; and that their vote was not intended to prevent any of the lot owners from installing a gas line in the future. Id.

On June 6, 2019, the Buccis filed a complaint against the Campbells in the Superior Court, Lawrence Bucci, et al. v. Lindsey Campbell, et al., Docket No. 1981CV01608, Middlesex County ("the Superior Court Action"). According to the docket in that action, [Note 3] the Buccis filed motions for a real estate attachment and for a preliminary injunction on the same date. Those motions were heard on June 13, 2019 and denied (Green, J.) on June 19, 2019. As noted above, this action was filed on July 8, 2019. The Superior Court Action is still pending.

DISCUSSION

The motions to dismiss raise three issues: (1) whether the Buccis can appeal the Board's allowance of the Campbells' request to modify the Decision and the Approved Plan; (2) whether the Buccis can challenge the Campbells' alleged failure to comply with the Town's subdivision rules and regulations regarding the inspection of roadway construction in this proceeding; and (3) whether this action should be dismissed because of the still pending and earlier filed Superior Court Action. Each is addressed in turn.

The Appeal Of The Modification Approval

The first issue, whether the Buccis can appeal the modification of the Approved Plan and the Decision, is framed by the defendants as whether §81BB provides a right of appeal for minor modifications to approved subdivision plans. For the reasons set forth below, this court frames the issue as whether, as a matter of law, the allegations of the Complaint are sufficient to show that the Buccis are "aggrieved" and therefore have standing to pursue a §81BB appeal. The parties do not cite to any law directly on point, nor has this court found any. However, (1) because the Board reserved the right to approve minor modifications in its Decision, (2) because the Board determined that the modification at issue here was minor and did not trigger the need for a public hearing, (3) because the Board was compelled to approve the modification under applicable law, (4) because G.L. c. 41, §81W does not grant the Buccis the power to block the modification granted by the Board, and (5) because, under these circumstances, the Buccis are not aggrieved as a matter of law, the defendants' motion based on rule 12(b)(1) is allowed as to Count I of the Complaint. The Buccis do not have standing to pursue this claim.

"To the extent that subject matter jurisdiction generally, or standing in particular, is raised by a respondent, the judge may consider the issue by way of a motion to dismiss under either rule 12(b)(1) or rule 12(b)(6)." Abate v. Fremont Investment & Loan, 470 Mass. 821 , 829 (2015). "To have standing in any capacity, a litigant must show that the challenged action has caused the litigant injury." Sullivan v. Chief Justice for Admin. & Mgmt. of the Trial Court, 448 Mass. 15 , 21 (2006), quoting Slama v. Attorney Gen., 384 Mass. 620 , 624 (1981). "Not every person whose interests might conceivably be adversely affected is entitled to [judicial] review." Id. quoting Group Ins. Comm'n v. Labor Relations Comm'n, 381 Mass. 199 , 204 (1980). "In addition, for the plaintiff to have standing, the injury alleged must fall 'within the area of concern of the statute or regulatory scheme under which the injurious action has occurred.'" Id. at 21-22, quoting Ginther, supra at 323.

In this case, the statute at issue is the subdivision control law and the Buccis' appeal is pursuant to §81BB of that statute. [Note 4] Only a person "aggrieved" has standing under §81BB. Krafchuk v. Planning Bd. of Ipswich, 453 Mass. 517 , 522 (2009) ("Pursuant to G.L. c. 41, §81BB, only persons who are aggrieved by a planning board's decision concerning a definitive subdivision plan may appeal to . . . the Land Court."). "A person aggrieved within the meaning of G.L. c. 41, §81BB, must assert 'a plausible claim of a definite violation of a private right, a private property interest, or a private legal interest.'" Id. quoting Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 27 (2006), which in turn quotes Harvard Sq. Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491 , 493 (1989). "The asserted basis for the claim must also be one that the statute intends to protect." Id. citing Standerwick, supra at 27-28.

To determine whether a claim is "one that the statute intends to protect," a review of the statute is required. Here, the purpose of the subdivision control law is expressly set forth in §81M:

The subdivision control law has been enacted for the purpose of protecting the safety, convenience and welfare of the inhabitants of the cities and towns in which it is, or may hereafter be, put in effect by regulating the laying out and construction of ways in subdivisions providing access to the several lots therein, but which have not become public ways, and ensuring sanitary conditions in subdivisions and in proper cases parks and open areas.

The powers of the planning board under the statute "shall be exercised with due regard for[, among other things,] the provision of adequate access to all of the lots in a subdivision by ways that are safe and convenient for travel; . . . [and] for securing adequate provision for water, sewerage, drainage, underground utility services, fire, police and other similar municipal equipment, and street lighting and other requirements where necessary in a subdivision." Id. "It is the intent of the subdivision control law that any subdivision plan filed with the planning board shall receive the approval of such board if said plan conforms to the recommendation of the board of health and to the reasonable rules and regulations of the planning board pertaining to subdivisions of land." Id.

The rules and regulations adopted by a planning board pursuant to §81Q "may set forth a requirement that underground distribution systems be provided for any and all utility services, including electrical and telephone services, as may be specified in such rules and regulations." Here, the Town's Subdivision Rules And Regulations ("the Rules") provides, with respect to utilities, that "[o]ther utilities required in a subdivision include storm water drainage, telephone, electricity, and street lighting and may include gas, fire alarm systems, and cable television." Defendant Westford Planning Board's Memorandum Of Law In Support Of Its Motion To Dismiss, Ex. 1, Rules, Art. V, Design Standards, §218-12 C (4) (emphasis added).

Section 81W of the subdivision control law, regulating the modification, amendment or rescission of plan approvals, provides in pertinent part:

A planning board, on its own motion or on the petition of any person interested, shall have power to modify, amend or rescind its approval of a plan of a subdivision, or to require a change in a plan as a condition of its retaining the status of an approved plan. All of the provisions of the subdivision control law relating to the submission and approval of a plan of a subdivision shall, so far as apt, be applicable to the approval of a modification, amendment or rescission of such approval and to a plan which has been changed under this section.

Section 81T is one "of the provisions of the subdivision control law relating to the submission and approval of a plan of subdivision" made applicable to modifications by §81W. That section requires notice to the town clerk that such a plan has been submitted to the board and a public hearing noticed by publication, by posting and, to abutters, by mailing. As with original plan approvals, Gould v. Planning Bd. of Falmouth, 2017 Mass. App. Unpub. LEXIS 749 at *6 ("[a] planning board lacks discretion to disapprove a plan not shown to violate the reasonable rules and regulations of the planning board, recommendations of the board of health, or the local zoning by-law."), "[t]he same standards apply to modifications; denial of a modification must be grounded in a failure to conform to the rules and regulations of the planning board or the recommendations of the health board or officer." Id.

Section 81W further states in its second paragraph:

No modification, amendment or rescission of the approval of a plan of a subdivision or changes in such plan shall affect the lots in such subdivision which have been sold or mortgaged in good faith and for a valuable consideration subsequent to the approval of the plan, or any rights appurtenant thereto, without the consent of the owner of such lots, and the holder of the mortgage or mortgages, if any, thereon. . . .

The first clause of the second paragraph of §81W, requiring the consent of the owners of subsequently conveyed lots, was interpreted by the Appeals Court in Patelle v. Planning Bd. of Woburn, 20 Mass. App. Ct. 279 (1985). The court reviewed the legislative history behind that language, adopted by amendment to §81W in 1949, and concluded as follows:

This history establishes that the plan modifications which the Legislature sought to guard against when it used the verb "affect" were those which impaired the marketability of titles acquired by bona fide purchasers from subdividers. Examples would be modifications which altered the shape or area of lots, denied access, impeded drainage, imposed easements, or encumbered the manner and extent of use of which the lot was capable when sold. The target of the statute was not those changes which might have an indirect qualitative impact, such as alteration of a dead-end street into a through street.

Any number of physical changes affect, in greater or lesser degree, lots in a subdivision, e.g., location of trees, width of streets, planting between the curb and lot lines, traffic signals, overhead or underground utilities, or street lighting. They do not, however, limit the utility of those lots and, hence, do not "affect" them in the statutory sense.

Id. at 282-283 (emphasis added).

Turning to the case at hand, the defendants argue that §81BB does not provide an avenue of appeal for minor modifications to subdivision plan approvals. The only case to address the issue of a "minor" modification in Massachusetts is Lyons v. Planning Bd. of Andover, 2016 Mass. App. Unpub. LEXIS 583. That case was an appeal pursuant to §81BB and in that case, as here, the plaintiff challenged what she described as a major modification to a subdivision plan accomplished without following the procedures of §§81T and 81W. Id. at *5. The trial court concluded that the board's vote was not a modification but an exercise of its authority under the provision at issue, condition six. Id. at *6. In dicta, the Appeals Court in Lyons also concluded that the local board "did not abuse its discretion in approving the adjusted location of the paved way as a minor modification to condition five." Id. at *7.

Here, the Board addressed the Campbells' request under its reserved rights in Paragraph 16, which allowed it to determine that the request was minor and could be addressed at a public meeting, rather than through the public hearing process required by §81W and, according to defendants, without the right of appeal provided by §81BB. However, §81W does not distinguish between minor and substantial modifications and, leaving aside Lyons, there is no authority for the proposition that minor modifications are not within its scope. And, while the Lyons court did not address the issue of its jurisdiction, Lyons was a §81BB appeal. This court concludes that §81BB provides an avenue of appeal from minor modifications of subdivision plan approvals.

That an appeal lies under §81BB does not resolve the issue of the Buccis' standing to pursue such an appeal. The Buccis' arguments to the contrary notwithstanding, standing is a matter that can be addressed on a motion to dismiss. See Ginther v. Commissioner of Ins., 427 Mass. 319 , 322 (1998) ("A defendant may properly challenge a plaintiff's standing to raise a claim by bringing a motion to dismiss under Mass. R. Civ. P. 12(b)(1) or (6), 365 Mass. 754 (1974)."), citing Doe v. The Governor, 381 Mass. 702 , 705 (1980). As noted above, in order to have standing, the Buccis must allege injury that is particular to them and that is among the interests that the subdivision control law was intended to address.

Regarding the first element, the Buccis claim that they have agreements with the Campbells requiring that the Campbells install a natural gas line in Hummingbird Lane, and that their rights under those agreements have been violated by the Board's modification of the Approved Plan. It is an interesting question whether it is the Board's act in modifying the Approved Plan, or the Campbells' act in declining to install the natural gas line regardless of whether the Board modified the Approved Plan (an issue to be decided in the Superior Court Action), that is the source of the alleged violation of the Buccis' rights. For present purposes, the court will assume that it was the Board's act that violated the Buccis' rights under their agreements with the Campbells, causing the Buccis particularized harm.

Regarding the second element, the provision of natural gas in subdivisions is not an interest that the subdivision control law, or the Town's Rules, was designed to protect. That conclusion flows from the fact that neither G.L. c. 41, nor the Town's Rules, nor the Decision in this case required the Campbells to provide natural gas to the Hummingbird Lane Subdivision. Further support for this view is found in the fact that, because the Campbells' proposed modification complied with the statute and the Town's Rules, the Board had no choice but to approve the Campbells' request. See G.L. c. 41, §81M; Gould, supra. And, assuming §81W applies in these circumstances, see discussion supra, under the teaching of Patelle, the Buccis are not within the class that §81W was designed to protect because the modification here does not affect the marketability of the Buccis' title. Indeed, underground utilities were among the examples of physical changes cited by the Patelle court that did not "affect" the lot in the statutory sense. 20 Mass. App. Ct. at 282-283. That the Buccis' consent to the modification is not required under §81W is further evidence that the interest they assert here is not one protected by the subdivision control law.

The Buccis cite to Matthews v. Planning Board of Brewster, 72 Mass. App. Ct. 456 (2008), for the proposition that their consent to the modification is required under §81W. In Matthews, the Appeals Court determined, based on Note 2 on the subdivision plan there, that the local board intended to limit use of the subdivision road to the lots created by that plan and that an expansion of that use to access the plaintiffs' land "would violate the terms and conditions upon which the board approved the . . . plan." 72 Mass. App. Ct. at 464. The Appeals Court found that "the lot owners were entitled to rely on the enforcement of notes in the recorded subdivision plans (i.e. note 2) and the recorded covenant (which contained the same limiting language). Therefore, their consent to any modification is required." Id. at 464, n.9.

Here, there is no note on the Approved Plan or condition in the Decision and no recorded covenant between the Campbells and the Board requiring the installation of natural gas lines. Indeed, the Board takes the position in this litigation that the installation of natural gas lines was not a requirement imposed by it with respect to the Hummingbird Lane Subdivision. Accordingly, Matthews is inapposite.

The Buccis' reliance on Patelle's language distinguishing parties who "had acquired no rights through covenants, easements, or other tool of private land use control," 20 Mass. App. Ct. at 283, is equally unavailing. The Buccis do not allege that their agreements with the Campbells are in the form of enforceable interests in real estate, such as the covenants and easements referenced in Patelle, so as to include them within the scope of §81W.

The Alleged Failure To Inspect The Roadway

The Buccis allege at several points in their Complaint that the Campbells failed to comply with the Rules regarding the inspection of roadway construction, see Complaint at ¶¶ 30, 42, and argued in response to the defendants' motions to dismiss that the failure to do so materially affected the Buccis, in that they were obligated to participate in the maintenance of a road that had not been properly inspected. In response to this court's inquiry about the applicability of §81Y, the Buccis argue that §81Y is not applicable to them and that they are entitled to pursue their claims regarding the roadway pursuant to §81BB, or alternatively, pursuant to G.L. c. 249, § 4.

As a threshold matter, it bears noting that the roadway inspection issue was not a subject of the Board's modification action, see Complaint Ex. A, and so could not be the subject of the Buccis' purported appeal of that action pursuant to §81BB in Count I of their Complaint. Nor was the roadway inspection issue called out as an issue on which the Buccis sought declaratory relief in Count II of their Complaint.

Assuming, however, that the Buccis have asserted a claim based on the Campbells' failure to comply with the Rules regarding road construction, that is not a matter within the purview of §81BB. Instead, the enforcement of the Rules is governed by §81Y, which provides in pertinent part that the superior court and:

the land court shall have jurisdiction in equity on petition of the planning board of a city or town, or of ten taxable inhabitants thereof, . . . to enforce the provisions of the subdivision control law and any rules or regulations lawfully adopted and conditions on the approval of a plan lawfully imposed thereunder.

As the statute makes clear, §81Y governs actions to enforce provisions of the subdivision control law and rules and regulations adopted thereunder, and limits those who can avail themselves of its provisions to the planning board or ten taxpayers of a city or town.

Because the Buccis are not parties vested with the power to seek enforcement of the roadway inspection provisions of the Rules, they do not have standing to assert a claim based on that failure here. Moreover, couching the claim under the declaratory judgment act, G.L. c. 231A, assuming the Buccis have done so here, does not alter the result. See Pratt v. Boston, 396 Mass. 37 , 43 (1985) ("'[T]he requirement of 'standing' is not avoided by a prayer for declaratory relief.' Doe v. The Governor, supra at 704. General Laws c. 231A, therefore, does not in and of itself provide the plaintiffs with the 'standing' required to maintain this action.'").

Dismissal Because Of The Existence Of The Prior Pending Superior Court Action

The Campbells also argue that, to the extent that the Buccis assert contract or tort claims, the Buccis' claims should be dismissed pursuant to rule 12(b)(9) because of the existence of the prior pending Superior Court Action. In response, the Buccis contend that their complaint is not subject to dismissal under that rule because the parties and issues in the two proceedings are not identical. See Harvard Community Health Plan, Inc. v. Zack, 33 Mass. App. Ct. 649 , 652 (1992) ("A dismissal under rule 12(b)(9) may be appropriate if parties and issues are identical to those in prior pending action."). While that is certainly true as to the Complaint as a whole, rule 12(b) governs defenses "to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim or third-party claim," and so can be asserted with respect to less than all the claims in a complaint.

Here, the Buccis assert in Count II of their Complaint that they purchased Lot 2 in reliance on the Approved Plan and Decision, that the Campbells' unilateral change to the Approved Plan without their consent adversely affects the Buccis' property rights, that they are in great doubt about their rights, and that this court should declare that the Board's modification of the Approved Plan "has not affected their rights under any contractual agreements with the Campbells, and that [the Buccis] are not responsible for the increased costs of maintaining the roadway and Subdivision amenities resulting from the Campbells' action and/or the [Board's] Decision." Complaint ¶ 74. This count does not assert any claim against the Board.

In the Superior Court Action, the parties are the Buccis as plaintiffs and the Campbells as defendants. The allegations of the complaint in the Superior Court Action are substantially the same as and track the allegations of the Complaint here. Based on those allegations, the Buccis claim that the Campbells breached a contract with them by unilaterally abandoning the installation of natural gas lines, installing the roadway pavement without the prior installation of the gas line, and by requesting release of escrowed funds despite the Buccis' objection to the unauthorized roadway construction (Count I). The Buccis also assert claims for breach of the implied covenant of good faith and fair dealing (Count II), misrepresentation (Count III), and violation of G.L. c. 93A (Count IV). The Buccis request, among other things, a judgment awarding specific performance of the Campbells' alleged obligation to install natural gas service and to restore the road.

In view of the fact that the respective obligations of the Buccis and the Campbells under their contractual undertakings are squarely raised in the Superior Court Action, Count II of the Complaint, which raises the same issues between the same parties, is dismissed pursuant to rule 12(b)(9).

CONCLUSION

For the reasons set forth above, Count I of the Complaint is dismissed pursuant to rule 12(b)(1) for lack of subject matter jurisdiction and Count II is dismissed pursuant to rule 12(b)(9) because of the existence of the prior pending Superior Court Action. It is ORDERED that the Buccis are given 20 days from the docketing of this memorandum of decision to file a motion to amend the Complaint to assert a claim pursuant to G.L. c. 249, §4, should they choose to do so. If the Buccis do not do so, judgment will enter in accordance with this memorandum of decision.

SO ORDERED.