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311 West Broadway LLC v. Zoning Board of Appeal of Boston

Appeals Court of Massachusetts, Suffolk

August 23, 2016


          Heard: May 13, 2016.

         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.

          Present: Katzmann, Carhart, & Sullivan, JJ.

          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 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.


         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 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 # ALT151390[3] 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.

         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 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]

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 ...

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