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15-P-1227 Appeals Court
311 WEST BROADWAY LLC vs. ZONING BOARD OF APPEAL OF BOSTON &
others.1
No. 15-P-1227.
Suffolk. May 13, 2016. - August 23, 2016.
Present: Katzmann, Carhart, & Sullivan, JJ.
Zoning, Variance, Appeal, Jurisdiction. Jurisdiction, Superior
Court, Zoning. Superior Court, Jurisdiction.
Civil action commenced in the Superior Court Department on
June 13, 2013.
A motion to dismiss was heard by Brian A. Davis, J., and a
motion to file an amended complaint was also heard by him.
Edward J. Lonergan for 311 West Broadway LLC.
Kate Moran Carter for Bromfield Development LLC.
Adam Cederbaum for zoning board of appeal of Boston.
KATZMANN, J. The plaintiff, 311 West Broadway, LLC (311
West Broadway), appeals from a judgment of the Superior Court
dismissing its pending appeal pursuant to the Boston zoning
1
Bromfield Development, LLC, and Timothy Johnson.
2
enabling act, St. 1956, c. 665, § 11, as amended through St.
1993, c. 461, § 5 (zoning act), from a decision of the defendant
zoning board of appeal of Boston (board) in favor of the
defendant Bromfield Development, LLC (Bromfield), in the wake of
a new decision issued by the board after an assented-to,
judicially-ordered remand. The Superior Court had gained
jurisdiction when an appeal was filed from the initial decision
of the board, the parties agreed after the filing of that appeal
to a judicial remand, the order of remand created no scheduling
deadlines for the parties, and the parties provided status
reports to a judge regarding the proceedings before the board
and the further Superior Court litigation that they contemplated
following the board's new decision. 311 West Broadway did not
file an appeal from the new decision of the board, and the
question is whether the court was deprived of jurisdiction
because a new appeal was required. We conclude that, in the
circumstances here, a new appeal was not required and the court
was not divested of jurisdiction. We reverse.
Background.2 311 West Broadway owns property at 311-313
West Broadway in the South Boston section of Boston that abuts
property owned by Bromfield at 315-319 West Broadway. Starting
in 2012, Bromfield sought approval to change the occupancy of
2
Because this appeal presents a procedural question, we
focus extensively on the procedural background necessary to
understand the case in its current posture.
3
its property from a fitness center and private club to a fitness
center, offices, and residential units, and to build a new four-
story vertical addition over its existing one-story building
along with new front, side, and rear decks and additional off-
street parking.
In a zoning code refusal dated July 20, 2012, the
inspectional services department of Boston (ISD) denied
Bromfield's application, which was designated # ALT151390.
Bromfield appealed to the board, which issued a decision in
Bromfield's favor on May 21, 2013 (the 2013 decision),
referencing application # ALT1513903 and case number BZC-32279.
The 2013 decision was filed with the ISD on June 12, 2013.
On June 13, 2013, 311 West Broadway appealed to the
Superior Court pursuant to § 11 of the zoning act, which
provides that "[a]ny person aggrieved by a decision of said
board of appeal . . . may appeal to the superior court
department of the trial court sitting in equity for the county
of Suffolk . . . provided, however, that such appeal is filed
. . . within twenty days after such decision is filed with the
building commissioner." Bromfield answered the complaint on
August 30, 2013. 311 West Broadway served a motion for summary
judgment on Bromfield and the board in May, 2014.
3
Some pages of the 2013 decision list the application
number as "ALT15390." This appears to be a typographical error.
4
On June 25, 2014, Bromfield filed what it labeled as an
"(Assented To) Emergency Motion to Remand," asserting that 311
West Broadway's "claims of improper procedures and challenges to
the Zoning Relief [could] be redressed" with a new public
hearing. The only party that had assented to the remand at that
point, however, was the board. Bromfield's asserted emergency
was that the deadline for its opposition to 311 West Broadway's
motion for summary judgment (already previously extended twice)
and the date for its deposition of 311 West Broadway were fast
approaching.
311 West Broadway opposed the remand motion. It claimed,
inter alia, that the motion was a dilatory maneuver by Bromfield
and that, if any remand was allowed over its opposition, it
should not be permitted to derail the Superior Court process.
Specifically, 311 West Broadway requested that any remand be
considered as a "stay" for a limited duration not to exceed four
months, that the Superior Court retain jurisdiction, and that
its motion for summary judgment not be deemed waived.
Apparently the parties then further discussed the
possibility of remand. By June 27, all parties had signed off
on Bromfield's "Re-Filed (Assented To) Motion to Remand."
Whereas the proposed order attached to Bromfield's first remand
motion had expressly provided that "[a]ny party aggrieved by the
Board's decision after remand shall have 20 days to file an
5
amended complaint challenging the newly issued decision of the
Board," the new proposed order eliminated that proviso, among
others. 311 West Broadway contended below that the removal of
this provision was the specific result of negotiation. A judge
allowed the motion to remand on July 2, 2014, although the
accompanying proposed order was never endorsed. Prior to the
remand hearing before the board, Bromfield submitted an amended
set of plans for its proposed development project but not a new
permit application, and it did not submit the revised plans to
the ISD.
The board conducted its hearing on remand on September 23,
2014, and voted in favor of Bromfield at the hearing. However,
the board did not immediately issue a new written decision.
Consequently, when the parties were before a Superior Court
judge (status judge) for a status conference on December 1,
2014, it was clear that 311 West Broadway was going to remain
aggrieved, but the written decision had yet to be issued.4
4
The following exchange during the December 1 status
conference between the status judge and counsel for 311 West
Broadway is instructive:
The court: "[If the Board's decision] turns out in a
fashion not favorable to the abutter, . . . we do round
two."
Counsel: "Yes, Your Honor. And we know how it's going to
turn out, because they took their vote."
6
The question of the postremand procedures that 311 West
Broadway would need to pursue was discussed obliquely at this
conference. Counsel for the board and the status judge engaged
in the following exchange:
Counsel: "[The board's filing of its decision with
the commissioner of ISD] ordinarily triggers a 20-day
period in which to appeal. So that would -- If it's
the first time around, that's when the plaintiff would
come in. I believe this Court has retained
jurisdiction."
The court: "Yeah."
Counsel: "I don't know if the —-"
The court: "Yeah."
Counsel: "So it would be filed with the Commissioner
of Inspectional Services. I don't know if we would
say that that 20 days necessarily runs here and we
know what the plaintiff is going to do."
The court: "Yeah."
Counsel for 311 West Broadway explained to the status judge that
he would not need time to assess the board's new decision and
digest it because "we know exactly what's going to happen."
At the December 1 status conference, 311 West Broadway
attempted to secure judicial assent to its plan to resume
litigation immediately by taking up the summary judgment motion
it had filed prior to remand. When the status judge suggested
that the board's original decision -- on which 311 West Broadway
was seeking summary judgment -- was now moot, 311 West Broadway
responded that the decision had been modified but not
7
substantially and that it was the "same case." After some
additional back and forth, the status judge told 311 West
Broadway that he "can't accelerate and push a summary judgment
to something for which there hasn't been a decision filed yet,
so I really think we need to wait. I'm inclined to put it on
the end of January. If you feel aggrieved that there should be
some sort of an accelerated schedule of something, then you
raise it at that time." Counsel for Bromfield, who was present,
did not comment on any of the above.
The parties then agreed to a further status conference date
of January 27, 2015. The status judge advised them to try to
reach agreement on how to proceed before then but, if not, said
they could raise any issue at the next date. The board issued
its new decision on January 6, 2015 (2015 decision), referencing
application # ALT151390, case no. BZC-32279, as well as the
previous zoning code refusal on BZC-32279 that it annuls. The
2015 decision lists the differences between Bromfield's "initial
proposal" or "initially approved proposal" and its "new
development proposal" or "altered Project" in some detail. The
differences include a decrease in the size of the vertical
addition and removal of some proposed decking, a reduction in
the number of residential units, and increased off-street
parking.
8
The 2015 decision was filed with the ISD on January 7,
2015. The January 27 status conference date would therefore
have fallen right at the tail end of the twenty-day period
following that filing. However, Bromfield moved to postpone
that status conference, and it was rescheduled to February 25,
2015.5 On February 24, Bromfield filed an assented-to motion for
a further postponement of the status conference to March 24,
2015.
Before the parties ever made it back into court, on March
15, 2015, Bromfield moved to dismiss for lack of subject matter
jurisdiction pursuant to Mass.R.Civ.P. 12(b)(1), 365 Mass. 754
(1974), contending that 311 West Broadway had failed to appeal
the 2015 decision on what Bromfield characterized as a "new
project" within the twenty-day statutory time frame. Bromfield
contended that the 2015 decision was "unrelated" to the 2013
decision, which related to a "different project." The board
joined Bromfield's motion to dismiss. On or around March 25,
2015, 311 West Broadway moved pursuant to Mass.R.Civ.P. 15, 365
Mass. 761 (1974), for permission to file an amended and verified
complaint to update the record to reflect proceedings since
remand.
5
The basis for that postponement is not clear from the
record.
9
Bromfield's motion to dismiss and 311 West Broadway's
motion to amend the complaint came before a different judge
(motion judge) from both the judge who ordered the remand and
the judge who presided over the December status conference. In
an order dated May 12, 2015, the motion judge granted
Bromfield's motion to dismiss on the ground that "in light of
the plaintiff's failure to file a timely appeal after the
board's decision on remand . . . the Superior Court lacked
jurisdiction to entertain the plaintiff's appeal."6,7
Discussion. We review the allowance of a motion to dismiss
for lack of subject matter jurisdiction under rule 12(b)(1) de
novo. Opare's Case, 77 Mass. App. Ct. 539, 541 (2010). Because
the question of subject matter jurisdiction goes to the power of
the court to hear and decide the matter, we consider matters in
the record outside the face of the complaint. Ginther v.
Commissioner of Ins., 427 Mass. 319, 322 n.6 (1998). Although
this matter arises under the Boston zoning act, in seeking to
resolve the legal question posed, we are guided by cases decided
6
The quotation is from an unpublished memorandum and order
of this court issued pursuant to our rule 1:28. Zitzkat v.
Zoning Bd. of Appeals of Truro, 77 Mass. App. Ct. 1103 (2010).
While an unpublished summary decision may be consulted for
persuasive value, it is not binding precedent. Chace v. Curran,
71 Mass. App. Ct. 258, 260 n.4 (2008). The reasoning of the
summary decision relied on by the motion judge does not control
here.
7
In that order, the judge also "simultaneously denied as
moot" 311 West Broadway's motion to amend the complaint.
10
under the analogous provisions of G. L. c. 40A, § 17. See
Lapidus v. Board of Appeal of Boston, 51 Mass. App. Ct. 723, 727
(2001); Steamboat Realty, LLC v. Zoning Bd. of Appeal of Boston,
70 Mass. App. Ct. 601, 604 n.6 (2007).
The sole question for our consideration is whether the 2015
decision deprived the Superior Court of jurisdiction over the
ongoing dispute between the parties such that 311 West Broadway
was required to file a fresh appeal within twenty days of the
filing of that decision with the ISD to maintain its litigation
in that court. We conclude that, under the circumstances
present here, the Superior Court's jurisdiction did not expire
automatically by virtue of the issuance of the 2015 decision.
Consequently, the motion judge was not required to dismiss the
action as a matter of law and was, instead, free to consider 311
West Broadway's motion to amend its complaint in its previous
timely-filed appeal.
Bromfield and the board (collectively, defendants) assert
that the twenty-day framework in § 11 is jurisdictional and that
311 West Broadway's failure to comply deprived the Superior
Court of subject matter jurisdiction. Specifically, the
defendants contend that 311 West Broadway had to either file a
new appeal in Superior Court or move to amend its complaint
within twenty days of the filing of the 2015 decision with the
ISD. However, implicit in the concession that an amended
11
complaint would have satisfied § 11's jurisdictional requirement
is a recognition that the original lawsuit was not rendered a
nullity by the 2015 decision.
This is consistent with case law concerning amendments to
complaints underlying zoning decision appeals, even in cases
where amendment would allow otherwise time-barred action. "That
the action before such an amendment was flawed does not
necessarily preclude a curative amendment though the flaw is
described as 'jurisdictional.' . . . [Our] cases evince a
policy of broad powers of amendment -- more liberal than
elsewhere -- which has characterized our practice. Particularly
relevant is the familiar law that an amendment may be allowed
which would bring in a party who, when added, would have been
barred by a statute of limitations from commencing an
independent action and, indeed, that this is a reason to permit
the amendment." Rafferty v. Sancta Maria Hosp., 5 Mass. App.
Ct. 624, 627 (1977) (quotations omitted). See McLaughlin v.
Rockland Zoning Bd. of Appeals, 351 Mass. 678, 683 (1967)
(concluding that former version of G. L. c. 40A "does not
deprive the court of amending power in respect of timely
appeals" and allowing plaintiff to amend complaint to add
original applicant as defendant beyond statutory time frame for
service); Shaughnessy v. Board of Appeals of Lexington, 357
Mass. 9, 12-14 (1970).
12
There is nothing in the plain text of the zoning act that
is inconsistent with the conclusion that the Superior Court
retained the subject matter jurisdiction conferred by the
previously filed timely appeal. The zoning act requires only
that the "appeal" be filed within twenty days. It does not
explicitly address the procedures that must be followed when
that appeal results in a judicially-ordered remand pursuant to
which the board issues a new decision. We cannot discern any
statutory purpose that would be meaningfully served by requiring
the filing of multiple lawsuits by and against the same parties
concerning what is, at bottom, the same project, albeit with
some modifications.8 See Cappuccio v. Zoning Bd. of Appeals of
Spencer, 398 Mass. 304, 309 (1986) (construing statutory
language to avoid "absurd result"). The defendants essentially
concede as much in allowing that the zoning act would have been
satisfied by an amended complaint as opposed to a brand new
action.
If all that was required was for 311 West Broadway to seek
leave to amend its initial complaint, we are satisfied that § 11
did not deprive the court of jurisdiction to entertain such
8
In its brief on appeal, Bromfield relied on a decision of
the Land Court. See Chatfield-Taylor v. Nantucket Planning Bd.,
13 Land Ct. Rep. 595, 596-597 (Land Court No. 301672 Dec. 7,
2005) (Piper, J.). In reaching our conclusion, we are informed
by the guidance provided by the judge in that case, who faced a
similar question.
13
request beyond the twenty-day statutory period. The previously
timely filed appeal concerning Bromfield's underlying permit
application was still pending when the 2015 decision issued and
a review of the record -- and specifically the December, 2014,
status conference -- indicates that all parties and the status
judge were essentially in agreement that the Superior Court
litigation would resume in some form after the new decision
issued, although there was clearly confusion on all sides about
the form such resumption would take.9 Despite the fact that the
board had already voted in Bromfield's favor by the time of the
December status conference, at no point did Bromfield assert
that the court would be deprived of jurisdiction by virtue of
the new decision. It then twice postponed status conferences
after that decision issued, eliminating an opportunity for all
parties to revisit the issue on the record within the twenty-day
time frame.
We recognize the existence of cases strictly enforcing
statutory zoning appeal requirements even in situations where
the result might appear harsh. See, e.g., Cappuccio, 398 Mass.
at 311-312 (zoning appeal filed one day after twenty-day
9
In pointing to the shared understanding of the parties, we
are not suggesting that the parties created subject matter
jurisdiction by agreement where it would have otherwise been
lacking. That being said, nothing in the parties' actions
suggested a view that as a matter of law, subject matter
jurisdiction would be defeated by virtue of the new decision
after remand.
14
deadline of G. L. c. 40A, § 17, left court "without jurisdiction
to entertain the appeal"). Although courts police zoning appeal
jurisdictional requirements "in the strongest way," Pierce v.
Board of Appeals of Carver, 369 Mass. 804, 808 (1976), as noted,
the underlying appeal that set the Superior Court litigation in
motion here was timely filed. A delay in moving for leave to
amend the complaint does not vitiate the timeliness of the
previously filed appeal. Consequently, any delay in seeking
leave to amend did not "nullify the essential acts . . . to
deprive the court of the jurisdiction which it has acquired."
Shaughnessy, 357 Mass. at 13 (concluding that statutory language
ostensibly mandating dismissal of appeal for late-filed
affidavit does not actually require dismissal unless failure to
file affidavit within prescribed time was prejudicial).
Other than those initial requirements that put parties on
notice of the challenge to a zoning board's decision, statutory
zoning appeal requirements "have been dealt with leniently"
because "there is a different approach to the carrying out of
the later steps of an action which has been timely commenced."
Pierce, 369 Mass. at 808, 809. See Halko v. Board of Appeals of
Billerica, 349 Mass. 465, 467-468 (1965). With respect to
"slips in the procedure for judicial review" that are not
"destructive" of the purposes of the procedural scheme, we
consider "how far they have interfered with the accomplishment
15
of the purposes implicit in the statutory scheme and to what
extent the other side can justifiably claim prejudice." Pierce,
369 Mass. at 805, quoting from Schulte v. Director of the Div.
of Employment Security, 369 Mass. 74, 79-80 (1975).
In light of this case law concerning the later steps of a
timely commenced action and the silence of the zoning act with
respect to amending complaints after the board issues a new
decision on remand, we consider whether dismissal was consistent
with the statutory purposes or necessary to protect Bromfield
from prejudice. See Water Dept. of Fairhaven v. Department of
Envtl. Protection, 455 Mass. 740, 744 (2010) ("Our primary duty
in interpreting a statute is to effectuate the intent of the
Legislature in enacting it. . . . Where the meaning of a
statute is not plain from its language, we consider the cause of
its enactment, the mischief or imperfection to be remedied and
the main object to be accomplished, to the end that the purpose
of its framers may be effectuated" [quotations omitted]).
The strict statutes of limitation for judicial review
reflect the legislative intent that "affected parties should be
able to rely on the decisions of boards of appeals and special
permit granting authorities which have not been challenged
within a limited period." Iodice v. Newton, 397 Mass. 329, 334
(1986). See Kramer v. Zoning Bd. of Appeals of Somerville, 65
Mass. App. Ct. 186, 192-193 (2005) ("The statutes of limitation
16
for judicial review of special permit decisions -- whether
twenty days, or ninety days where there has been a defect in
notice -- exist to promote finality and to preclude attacks
indefinitely on decisions which have already been tested in the
hearing process"). Here, however, Bromfield cannot credibly
contend that it was unaware of 311 West Broadway's continuing
challenge to its project, and the pendency of previously filed
litigation with an imminent court date set for a status
conference eliminates all concerns about finality or attacks in
the indefinite future. The underlying legislative purposes are
therefore not vindicated by the dismissal here.
Nor has Bromfield even suggested that any inaction by 311
West Broadway caused a "material delay in prosecuting the
appeal," McLaughlin, 351 Mass. at 683, that prejudicially
disadvantaged Bromfield. Especially given that the parties had
ongoing court dates scheduled at all relevant times and that it
was Bromfield that moved to postpone those court dates after the
2015 decision issued, this would be a difficult proposition to
sustain. Instead, Bromfield has rested its argument entirely on
a reading of the statutory scheme that would require dismissal
of even meritorious appeals of zoning decisions that had been
timely filed and remained pending during remand. We do not
agree that the statutory scheme requires that a party that has
already appealed a decision of the board in litigation that
17
remains pending, and that continues to be aggrieved by a
decision of the board after remand ordered as part of that
litigation, must move to amend its complaint within twenty days
after the postremand decision is filed. Cf. DiGiovanni v. Board
of Appeals of Rockport, 19 Mass. App. Ct. 339, 343 (1985) ("If a
somewhat ambiguously worded document is understood by all
concerned to be a request for a specific form of relief, the
notice requirements of G. L. c. 40A, § 15, are satisfied. We do
not exalt form over substance in such a case"); Musto v.
Planning Bd. of Medfield, 54 Mass. App. Ct. 831, 837 (2002)
(unreasonable elevation of form over substance for planning
board to deny extension of time for applicant to obtain formal
approval from board of health when informal approval had already
been granted). The remand here was at the unanimous request of
the parties and the proceedings below reflect that the parties
were to report back to the court after the board took action.
That this remand was not understood to have simply annulled the
2013 decision and 311 West Broadway's appeal therefrom is
evidenced by the fact that the remand order was not contained in
a judgment terminating the appeal and ordering a new hearing on
an entirely new application.
Bromfield's contention that the board's decision on remand
related to an entirely different or new project is belied by the
facts that Bromfield did not actually begin the process again by
18
filing a new application10 with the ISD (and so no new refusal
letter issued) and that the board's new decision continued to
reference the same underlying application (# ALT151390) and case
number (BZC-32279). The court already had jurisdiction over
that application and that zoning board case, and the new
decision did nothing to vitiate that. This is not merely a
point about form without regard to substance. Anyone interested
in the status of that application would know that the original
board decision had been timely appealed and could tell from the
Superior Court docket that the appeal was still underway. Cf.
Pierce, 369 Mass. at 808 (importance of furnishing constructive
notice to interested persons that board's decision has been
challenged and may be overturned). Again, Bromfield cannot
possibly claim to have been unaware that 311 West Broadway was
continuing to press its challenge to the project. In light of
these considerations, we do not consider the claimed materiality
of the changes to the project dispositive here.
It is important to emphasize that our holding here is a
narrow one based on the facts of this case. Our reasoning would
not perforce apply to all cases in which the board issued a new
decision after a judicially-ordered remand. See McLaughlin, 351
10
We do not suggest that whether a new application has been
filed is necessarily dispositive to determining whether a new
appeal is required from a resulting board decision. We simply
note that in this case, it is relevant to an assessment of the
ongoing understanding of the parties.
19
Mass. at 683 ("Of course, where there is substantial delay or
inaction . . . the aim and the language of the statute make
emphatic the propriety of dismissal of the appeal"). Given 311
West Broadway's diligent efforts to assert its rights here and
the complicated procedural maneuvering involved, there is no
justification in the statute or in equity for imposing a
"gotcha" forfeiture of its rights. Cf. id. at 682 ("We think
the Legislature, with an intent of expedition, did not intend to
create a series of procedural barriers reminiscent of an earlier
age of the law").
Conclusion. Because it appears that the motion judge
believed that he was required by statute to dismiss the
complaint in the wake of the board's new decision on remand, we
reverse the judgment of dismissal. The case is remanded for
further consideration consistent with this opinion, including
reconsideration of the motion to amend the complaint. On
remand, the judge is free to consider the extent of any proposed
amendments, whether good reason exists therefor, and any delay
in pursuing amendment. See Cappuccio, 398 Mass. at 314
("Although rule 15[a] provides that leave to amend 'shall be
freely given when justice so requires,' Mass.R.Civ.P. 15[a], 365
Mass. 761 [1974], broad discretion remains with the judge"). To
the extent a judge determines that there was any undue delay in
311 West Broadway's efforts to assert its challenge, we "leave
20
the sanction to the discretion of the judge rather than
mechanically to destroy the action." Pierce, 369 Mass. at 809.11
So ordered.
11
Given the conclusion we reach, we need not address 311
West Broadway's contentions that the 2015 decision was drafted
by Bromfield for the board and that it contains misstatements
and distortions concerning the remand process. To the extent
still relevant, these issues can be addressed on remand.