COMMONWEALTH OF MASSACHUSETTS SUFFOLK, SS. SUPERIOR COURT CIVIL ACTION NO.

12-4544-B

BENJAMIN DAY, IN HIS REPRESENTATIVE CAPACITY, AS CHAIRPERSON OF THE JAMAICA PLAIN NEIGHBORHOOD COUNCIL VS. BRG 161 SOUTH HUNTINGTON, LLC, and THE CITY OF BOSTON BOARD OF APPEAL MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS' JOINT MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION INTRODUCTION Pursuant to Section 11 of the City of Boston Zoning Enabling Act ("Enabling Act"), plaintiff Benjamin Day ("Day" or "plaintiff"), as chairperson of the Jamaica Plain Neighborhood Council ("JPNC"), filed this action to appeal a zoning decision of defendant City of Boston Board of Appeal ("Board"), granting the request of defendant BRG 161 South Huntington, LLC " (collectively, "defendants"), for three variances and a conditional use ("BRG") permit. The matter is before the court on the defendants' joint motion to dismiss for lack of subject matter jurisdiction pursuant to Mass. R. Civ. P. 12(b)(1) and 12(b)(6) based on the JPNC's alleged lack of standing. After hearing, and for the reasons set forth below, the defendants' motion to dismiss is ALLOWED
. ,,

(C,

The record before the court provides the following factual background. BRG is a party to a purchase and sale agreement for certain real property located at 161 South Huntington Avenue, Boston, Massachusetts, in the Jamaica Plain section of the city. On or about April 6, 2012, BRG applied to the City of Boston Inspectional Services Department ("ISD") for a permit to construct

a 196-rental-unit apartment project at the Huntington Avenue address. On June 27, 2012, the ISD denied the application for construction. On or about August 9, 2012, BRG appealed the ISD's decision to the Board, seeking variances from the Zoning Code and a conditional use permit. Before the Board addressed the request, the JPNC's Zoning Committee voted 13-0-0 to recommend denial of the BRG appeal for variances; and, on October 30, 2012, the JPNC as a whole affirmed the decision of its Zoning Committee. On November 13, 2012, the Board held a hearing on the BRG appeal and voted to approve the petition for the requested variances and the conditional use permit. Subsequently, the Board signed a formal written decision, dated November 27, 2012. The Board's decision was then filed with the ISD on November 29, 2012. Thereafter, on December 19, 2012, Day, as JPNC's chairperson, filed this action with the JPNC's approval in order to challenge the Board's decision granting BRG the variances and use permit as exceeding the Board's authority. DISCUSSION I. Motion to Dismiss Standard The plaintiff claims that the court can exercise subject matter jurisdiction over this action because the JPNC is classified as a municipal board with standing to challenge decisions by the Board. The defendants counter that, because the JPNC does not possess any duties related to zoning, the JPNC cannot be classified as a municipal board and, accordingly, does not possess standing, making dismissal under Mass. R. Civ. P. 12(b)(1) appropriate. After consideration, this court concludes that the defendants are correct.'
'The defendants also point to Mass. R. Civ. P. 12(b)(6) as an alternative basis for dismissal; however, the court need not address the sufficiency of the pleadings inasmuch as the requirements for dismissal on the basis of 12(b)(1) are met.

Standing is an issue of subject matter jurisdiction under Mass. R. Civ. P. 12(b)(1). See Ginther v. Commissioner of Insurance, 427 Mass. 319, 322 (1998); Doe v. The Governor, 381 Mass. 702, 705 (1980). Because subject matter jurisdiction goes to the power of the court to hear and decide the matter, establishing standing is a jurisdictional prerequisite to judicial review. Ginther , 427 Mass. at 322, n.6; Planning Bd. of MarshjIeld v. Zoning Bd. ofAppeals of Pembroke, 427 Mass. 699 (1998); Hanna v. Town of Framingham, 60 Mass. App. Ct. 420, 422 (2004); Riley v. Janco Central, Inc., 38 Mass. App. Ct. 984, 985 (1995). In reviewing a motion to dismiss for lack of subject matter jurisdiction, the court considers the factual allegations of the plaintiff's complaint, along with any favorable inferences reasonably drawn therefrom, Ginther, 427 Mass. at 322. However, the court also may consider "documents and other materials outside of the pleadings" submitted by the parties in addressing the merits of the jurisdictional claim. Callahan v. First Congregational Church of Haverhill, 441 Mass. 699, 710 (2004); see also Ginther, 427 Mass. at 322, n. 6 ("Under rule 12(b)(1), the judge may consider affidavits and other matters outside ofthe face of the complaint that are used to support the movant's claim that the court lacks subject matter jurisdiction.
").

As the plaintiff

in a zoning appeal, the JPNC bears the burden of proof on this issue. Standerwick v. Zoning Bd. ofAppeals ofAndover, 447 Mass. 20, 34, n. 20 (2006). II. Standing Under the City of Boston Zoning Enabling Act Section 11 of the Enabling Act governs the requirements for standing in this instance. In pertinent part, Section 11 provides that "[a]ny person aggrieved by a decision of [the] board of appeal, whether or not previously a party to the proceeding; or any municipal board or officer,

may appeal to the superior court." Boston Zoning Enabling Act, St. 1956, c. 665 11. 2 The plaintiff does not contend that either the JPNC or he is a "person aggrieved" by the Board's decision; therefore, the court will address only whether the JPNC is classified as a municipality within the meaning of the Enabling Act. Where the Enabling Act's grant of standing to municipal officers and boards is an exception insofar as it does not require any showing of injury to a legally protected interest, the terms "municipal board" or "officer" must be construed narrowly in order to "minimize the class of parties who have suffered no legal harm, yet `can compel the courts to assume the difficult and delicate duty of passing upon the validity of acts of a coordinate branch of government." Planning Bd of Marshfield, 427 Mass. at 702-703, quoting Ginther, 427 Mass. at 322. As such, the right of appeal is strictly limited to municipal boards or officers that have duties to perform in relation to the building code or zoning. Planning Bd. of MarshjIeld, 427 Mass. at 701; Carr v. Bd. ofAppeals of Medford, 334 Mass. 77, 79 (1956); Planning Bd. of Reading v. Bd. ofAppeals of Reading, 333 Mass. 657, 662 (1.956);. Harvard Square Def Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491, 496 (1989). This court concludes that the JPNC does not possess duties related to the building code or zoning and only possesses certain discretionary, advisory rights. 3 In making this determination, the court considers: (A) the intended role of the
2 In construing the Enabling Act, it is the court's practice-to look to interpretations of the Cornmonwealth's Zoning Act, G. L. c. 40A 17, which contains identical language to the statute at issue. Circle Lounge & Grille, Inc. v. Bd. ofAppeal ofBoston, 324 Mass. 427, 432-33 (1949); Epstein v. Bd. ofAppeal ofBoston, 77 Mass. App. Ct. 752, 756 (2010); McGee v. Bd. ofAppeal ofBoston, 62 Mass, App. Ct. 930, 930 (2004); Sherrill House, Inc. v. Bd. ofAppeal ofBoston, 19 Mass. App. Ct, 274, 275 (1985); MBTA Employees Credit Union v. Araujo, 18 Mass. L. Rep. 210, *9-10 (Mass. Super. Ct. 2004). 3 The defendants argue that, to constitute a municipal board, a party must possess both powers and duties related to zoning, while the plaintiff contends that classification as a municipal board only requires duties. Because the court determines that the JPNC lacks duties, the court need not address whether our case law also requires the JPNC to possess powers related to zoning.

JPNC when formed; (B) the plain meaning of Article 55 of the Zoning Code as it pertains to Jamaica Plain; and (C) the City of Boston's official recognition of the JPNC and its members. A. The Neighborhood Initiative Plan In order to evaluate the intended role of the JPNC when formed, the court looks to the Neighborhood Initiative Plan (" Plan"), written in June 1985 by Thomas A. Bledsoe, Director of then Mayor Raymond Flynn's ("Mayor Flynn's") Office of Neighborhood Services, for guidance. See JPNC's Emergency Motion for Leave to Supp., Ex. 1. The Plan memorialized the creation of the Neighborhood Council system, which included five neighborhood councils, including the JPNC. Id., pp. 4, 15. The Councils were created in order to encourage the involvement of the citizens of Boston's neighborhoods, including residents and local business owners, in decisions of importance in their community. Id., p. 15. Members of the Neighborhood Councils initially were appointed by Mayor Flynn on recommendations from the community. Id., p. 16.4 After making the initial appointments, Mayor Flynn intended for the Councils to engage the community in an effort to influence development in their neighborhoods. Id., pp. 18-19. In order to achieve that goal, the Neighborhood Councils were to collaborate with a Neighborhood Planning Team in preparing a Neighborhood Development Plan to help identify neighborhood development objectives. Id., p.18. The Neighborhood Councils also could "work with the BRA and the. Zoning., Commission to help develop a new master zoning ordinance for their communities." Id., p. 19.

4 The JPNC has since changed membership in the JPNC from a mayoral appointment process to a neighborhood election to be conducted every two years. See JPNC's Opp. to Defs' Motion to Dismiss, p. 4.

Most notably, the Plan encouraged Neighborhood Councils and residents to interact with the Board regarding certain requests for variances. Id. The pertinent language regarding the Neighborhood Council's role regarding requests for variances states that: Whenever a party seeks a zoning variance which shall have a substantial impact on the neighborhood, the Board of Appeals will notify the Council serving the area affected by the variance in writing. If the Council desires, they can study the proposal and make a written response to the Board of Appeals and to the petitioner.. .If the Council requests an explanation, the petitioner is expected to cooperate in arranging a meeting and supplying information to the Council. The Board of Appeal will require that the petitioner meets with any Neighborhood Council that has requested a meeting or any other interested neighborhood group before it considers the petition... The Neighborhood Council will convene a public meeting regarding the petition if they determine there is sufficient concern regarding its impact on the neighborhood. The Board will give great weight to the Council's position... in making its decision relative to the zoning issues involved. Id., p. 20 (emphasis added). From this language, it is apparent that Mayor Flynn did not confer any affirmative duties on the Neighborhood Councils and only delineated a right to review requests for variances, at the Neighborhood Council's discretion. Nevertheless, the JPNC asserts that it possesses duties related to zoning because its Zoning Committee has reviewed applications for variances from the Zoning Code and made recommendations on those applications since the JPNC was established in 1985 and that "it is, and has been, the practice of the Board of Appeal not to consider the merits of zoning relief for a Jamaica Plain project without the appellant and the JPNC first having participated" in the review process. JPNC's Opp. to Defs' Motion to Dismiss, p. 5, n.3. While it is well within JPNC's purview to appraise every application for a variance before the

Board considers its merits, the fact that this has been an accepted practice recognized by the Board does not convert the JPNC's right to review into a duty to review. In the absence of such a duty, the JPNC cannot be considered a municipal board with standing to challenge the Board's decision. See Planning Bd. of Marshjield, 427 Mass. at 701. Furthermore, former Mayor Flynn recently clarified his intent in creating the Neighborhood Councils by stating that "I didn't look at them as a branch of City government. I looked at them as strong representatives of the diversity of city neighborhoods," and that "I didn't see it as another government board of bureaucrats or people being controlled or having political ties to City Hall." See Plaintiffs Opp. to Defs' Motion Req. Order for Bond, Exhibit C1, p. 2 (emphasis added). The view of the Neighborhood Councils' own creator, Mayor Flynn, lends further support to the court's determination that the JPNC is not a municipal board. 5 B. Article 55 of the Boston Zoning Code The plaintiff further contends that its zoning-related duties are codified in Article 55 of the Boston Zoning Code. JPNC's Opp. to Defs' Motion to Dismiss, p. 12. Article 55 of the Zoning Code is the article governing zoning matters in Jamaica Plain. See Boston Zoning Code, Article 55. The plaintiff alleges that the JPNC's duties specifically are derived from Section 556, which states that: Participation. This article has been developed with extensive participation of the Jamaica Plain Neighborhood Council and its Zoning Committee, together with civic and neighborhood associations, business and trade groups and residents. The role of community participation in determining appropriate land use regulations and zoning is critical to the success of any zoning article or development plan. To continue that role, the Jamaica Plain Neighborhood Council and its Zoning Committee, and the Jamaica Plain Civic and neighborhood association, business and
is also moteworthy that, in their twenty-eight-year existence, not one of the Neighborhood Councils has ever attempted to appeal a Zoning Board's decision before the instant action.
5 It

trade groups, and residents, shall continue to play an ongoing role in advising the City on land use planning for Jamaica Plain.

Id.
As a matter of law, a properly promulgated regulation is to be construed in the same 762, 769 (1980). manner as a statute. Purity Supreme, Inc. v. Attorney Gen., 380 Mass. Accordingly, the court has the authority to review the provisions of Article 55 and determine its 353, 360 meaning consistent with its plain words. Sullivan v. Town of Brookline, 435 Mass. (2001); Miles v. Planning Bd. of Millbury, 404 Mass. 489, 492 (1989). The JPNC submits that, through the express and mandatory language of Article 55, "it was the clear intent of the City, the BRA, the JPNC (as the prime author of Article 55), the Zoning Commission, and the mayor in enacting Article 55 to codify in Section 55 -6 their longstanding practice of having the JPNC conduct, on their behalf, local public hearings to review all zoning appeals in Jamaica Plain prior to the consideration of the Board." See JPNC's Opp. to Defs' Motion to Dismiss, p. 5, 11. It is unclear to this court how the JPNC arrives at this conclusion, as nothing in the express language of the section or elsewhere in.the Zoning Code mandates that the JPNC review requests for variances before the Board. To support its proposition, JPNC erroneously relies on Planning Bd. of Reading v. Bd of in which the court ruled that the planning board met Appeals of Reading, 333 Mass. 657 (1956), the requirements for standing under what the JPNC contends was an analogous state zoning the statute specifically mandated that "no zoning statute. However, in Planning Bd. of Reading, districts or restrictions therein shall be changed `until after the planning board... has held a public hearing thereon... and has submitted a final report with recommendations to the city council or town meeting, or until twenty days shall have elapsed after such a hearing without submission of a final report." Id. at 662. The statute in question in that case clearly defined the planning 0

board's duties related to zoning; and, therefore, classification as a municipal board was appropriate. By contrast, Section 55-6 only states that the JPNC "shall continue to play an ongoing role in advising the City...." This is a general statement concerning the JPNC's ongoing role as advisor and does not suggest that the JPNC is required to conduct hearings to review all zoning appeals. In the absence of language to support the JPNC's proposition, this court cannot read words into this enactment that do not appear on the face of the code. City of Boston, 442 Mass. 812, 817 (2004). Moreover, if this court were to accept the JPNC's interpretation of Section 55-6, the logical extension of that argument would be that "the Jamaica Plain civic and neighborhood association, business and trade groups, and residents," having similar duties, also would be classified as municipal boards or officers with powers to challenge Board decisions. Such an reading would lead to absurd results and likely was not intended by the City, the Zoning Commission, or the Mayor when enacting this Article. See Carr, 334 Mass. at 80 (even giving members of the City Council a right of appeal greatly would, impair the., effective,, operation of the statute, and it is inconceivable that the Legislature could have intended to give them this right). As such, Section 55-6 cannot be construed to empower the JPNC with duties sufficient to render it a municipal board. Even assuming, arguendo, that Section 55-6 exclusively conferred the JPNC with..this "ongoing role in advising the City," a purely advisory role is not enough to grant standing as a municipal board. In analyzing a nearly identical situation in Harvard Square Def. Fund, Inc. v. Planning Bd. of Cambridge, the Appeals Court ruled that , an unincorporated citizens advisory group without traditional government powers was not a municipal board. Harvard Square Def. Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491, 497 (1989). In that case, the Anderson St. Assoc. v.

members of the committee had the capacity solely to "review, advise, guide and otherwise comment upon development proposals within the Harvard Square overlay district in a report submitted to the planning board." Id. at 496-97. "The planning board then gives the report `due consideration' in the formulation of its decision." Id. at 497. The Appeals Court ruled that a purely advisory committee did not qualify for standing independent of the planning board. Id. Similar to the committee in Harvard Square, the JPNC only has the right to review requests for variances and to make recommendations to the Board. The JPNC acknowledges that these recommendations are not binding on the Board in any way, leaving the JPNC with a purely advisory function. See JPNC's Opp. to Defs' Motion to Dismiss, p. 5, n. 3. Based on the holding in Harvard Square, the court concludes that the JPNC's role in the community does not rise to the level of a municipal board and, therefore, that the JPNC lacks standing to challenge the Board's decision. 6 Finally, the court rejects the JPNC's contention that it should be classified as a municipal board because Section 55-6 recognizes that Article 55 was drafted, with. the "extensive. participation" of the JPNC and its Zoning Committee. See JPNC's Opp. to Defs' Motion to Dismiss, p. 5, 11, The JPNC's contributions to drafting the Article, including its "revisions, alterations, additions and edits to the then existing zoning code," do not amount to affirmative duties rendering the JPNC a municipal board, as discussed, supra.. Furthermore, according to. Section 55-6, Jamaica Plain's "civic and neighborhood associations, business and trade groups and residents" all extensively participated in the development of Article 55. It is reasonable to
6 The court takes no issue with the JPNC's assertion that it "has performed and continues to perform an integral role in Board of Appeal decisions for the Jamaica Plain Neighborhood District." See JPNC's Opp. to Defs' Motion to Dismiss, p. 10. In determining that the JPNC is not a municipal board, the court does not intend to derogate the significance of the JPNC's role in the community and recognizes the value of Neighborhood Councils in serving as the voice of the community and bridging the gap between residents and the Board.

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infer that the Legislature did not intend to confer municipal board status on all those groups and individuals that contributed to Article 55's drafting. See Carr, 334 Mass. at 80. Moreover, the Neighborhood Initiative Plan stated, in reference to the JPNC's eventual assistance with revising the zoning ordinance, that "this strong advisory ability in setting guidelines and limits for future development... will allow Councils considerable long-term influence over development in their community." JPNC's Emergency Motion for Leave to Supp., Ex. 1, p. 19. Thus, the JPNC's participation in drafting the new provision, while likely valuable to the Jamaica Plain community as a whole, was solely in an advisory capacity and, as such, cannot result in the JPNC be accorded municipal board status. See Harvard Square, 27 Mass. App. Ct. at 496-97. In sum, the JPNC does not possess duties related to zoning, merely discretionary rights to review and advise; given that this advisory role is not sufficient to rise to the level of a municipal board, the JPNC lacks standing to challenge the Board's decision.' C. Recognition by the City of Boston Notwithstanding the court's determination that the JPNC is not a muni.cipal. board, The court will address the defendants' additional arguments. The defendants direct the court's attention to the following evidence: (1) the JPNC is not named on the official list of municipal "Boards and Commissions" maintained by the City of Boston; (2) the JPNC's officers or members are not included on the register of municipal, officers maintained, by the City of Boston; and (3) all meetings of municipal boards, commissions, and agencies are posted with the Office of the City Clerk, pursuant to the Open Meeting Law ("OML") under G. L. c. 30A, but the

' The court limits its analysis as to whether the JPNC is a municipal board; however, an analysis of whether Day, in his capacity as chairperson of the JPNC, is a municipal officer would lead to the same result. See Carr, 334 Mass. at 80. 11

JPNC's meetings are not posted with the Office of the City Clerk, See Defs' Reply Brief in Further Support of their Joint Motion to Dismiss, p. 2-4. Although not dispositive of the issues before the court, the facts that the City of Boston does not recognize officially the JPNC in its list of "Boards and Commissions" and that the City's Record of Appointments has no record of acceptance of public office from any member of the JPNC are further proof that the JPNC is not considered a municipal board by the City. However, the defendants' third argument, viz., the JPNC's noncompliance with the OML, is unpersuasive inasmuch as the OML's requirements are considerably different. The OML generally requires that all meetings of a public body shall be open to the public and that the public body shall post notice of every meeting at least forty-eight hours prior to such meeting. See G. L. c. 30A 20. Pursuant to G. L. c. 30A 18, the word "public body" is broadly defined as "a multiple-member board, commission, committee or subcommittee... within any county, district, city, region or town... established to serve a public purpose." The purpose of such an all-encompassing definition of public body

is clear-- to promote transparency in conducting

matters that concern the public.' A determination of whether the JPNC is a public body is a far cry from a determination of whether it is a municipal board. While the JPNC may be considered a public body subject to the mandates of the OML, and while noncompliance with the OML may tend to show that the JPNC does not hold itself out as a municipal board, a resolution of this question is not necessary for the court's analysis here. 9

in the words of the great Justice Louis D. Brandeis, "sunlight is said to be the best of disinfectants."

The court acknowledges that the issue of whether a Neighborhood Council must comply with the OML is 9 the subject of ongoing litigation between the Charlestown Neighborhood Council and its residents in Suffolk County Superior Court Civil Actions No. 13-0461H and No. 13-00538. However, this court need not address this issue in order to arrive at its conclusion regarding JPNC's status as a municipal board. 12

III. Standing Under Rule 23.2 The plaintiff attempts to circumvent the requirements for standing under Section 11 of the Enabling Act by reliance on Mass. R. Civ. P. 23.2 as an alternative basis to assert the JPNC's rights. Rule 23.2 states that "an action brought by or against the members of an unincorporated association as a class by naming certain members as representative parties may be maintained only if it appears that the representative parties will fairly and adequately protect the interests of the association and its members." Mass. R. Civ. P. 23.2. The plaintiff summarily argues that, because the JPNC voted to authorize Day to represent the JPNC in this action, the "representative party [is] fairly and adequately protecting] the interests of the association and its members." See JPNC's Opp. to Defs' Motion to Dismiss, p. 15. The plaintiff misapprehends Rule 23.2. In order to avail himself of the rule, Day must protect the valid interests of the JPNC and its members. Application of this standard in the context of a zoning challenge requires the plaintiff to allege that the claimed injury or loss is personal to the plaintiff and cannot simply represent general, speculative concerns of the community. Denney v. Zoning Bd. ofAppeals of Seekonk, 59 Mass. App. Ct. 208, 211 (2003); see also Cheever v. Graves, 32 Mass App. Ct. 601, 604-605 (1992) (standing as representative members of an unincorporated association is appropriate where the plaintiffs were the officers of the association and claimed a shared property right of access to, and use of, the property at issue in the litigation). Day has not alleged that he owns any property abutting 161 South Huntington Avenue, nor has he alleged that the Board's decision causes him special or personal harm to his own private property or legal rights. While it is true that prior to initiating this action, the JPNC voted to authorize Day to represent the JPNC as a whole, Day cannot be an adequate representative of the

potential class because he has no individual standing as a person aggrieved. Therefore, this action cannot be maintained as a class action; and reliance on Rule 23.2 for standing is misplaced.

For all the foregoing reasons, it is hereby ORDERED AND ADJUDGED that the defendants' joint motion to dismiss for lack of subject matter jurisdiction be ALLOWED and that the complaint be DISMISSED.

Linda E. Giles, Justice of the Superior Court

Dated: May 16, 2013

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