Heard: May 13, 2016.
action commenced in the Superior Court Department on June 13,
motion to dismiss was heard by Brian A. Davis, J., and a
motion to file an amended complaint was also heard by him.
J. Lonergan for 311 West Broadway LLC.
Moran Carter for Bromfield Development LLC.
Cederbaum for zoning board of appeal of Boston.
Present: Katzmann, Carhart, & Sullivan, JJ.
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.
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.
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 and case number BZC-32279.
The 2013 decision was filed with the ISD on June 12, 2013.
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.
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.
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
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
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
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 ...