Superior Court of Massachusetts, Suffolk, Business Litigation Session
Gustave H. Murby et al. 
Children's Hospital Corporation dba Boston Children's Hospital et al.  No. 135611
December 5, 2016
MEMORANDUM AND ORDER ALLOWING FURTHER MOTION BY
CHILDREN'S HOSPITAL CORPORATION TO DISMISS THIS
Kenneth W. Salinger, Justice of the Superior Court.
brought suit in an effort to stop Boston Children's
Hospital from erecting a new clinical building on the site of
the Prouty Garden, which they and many others value as a
quiet sanctuary for Hospital patients and their families. In
their amended complaint Plaintiffs allege that the Hospital
illegally began site preparation and other construction work
required for its proposed Boston Children's Clinical
Building (the " BCCB") without first obtaining
approval from the Department of Public Health ("
DPH") under the determination of need (" DoN")
law, G.L.c. 111, § § 25B-25G. Plaintiffs also
allege that the Hospital's DoN application for the BCCB
project improperly excluded the costs of certain renovation
projects that the Hospital has already started or completed
at its main campus in the Longwood medical area of Boston,
and of a planned expansion of the Hospital's Waltham
Court previously ordered that all claims against defendants
Suffolk Construction Company, Inc., Turner Construction
Company, and the Commissioner of the Massachusetts Department
of Public Health be dismissed without prejudice because they
are not proper or necessary parties.
Hospital now moves to dismiss the rest of the case on the
grounds that it became moot when DPH approved the
Hospital's DoN application. The Court will ALLOW that
motion, and dismiss this case without prejudice, because it
agrees that the claims asserted in this action are now moot.
It will also declare the rights of the parties with respect
to one of the legal issues raised in the amended complaint.
The Court takes judicial notice of the two DPH letter
decisions that are attached to the Hospital's memorandum
of law: the October 27, 2016, letter decision in which DPH
approved the Hospital's DoN application, and the June 3,
2016, letter decision in which DPH rejected claims that
certain ongoing or now completed renovations at the Longwood
campus were part of the BCCB project and thus required DoN
amended complaint asserts three general categories of claims,
all of which are now either moot, must be pursued as part of
the c. 30A appeal from the final decision by DPH, or raise a
pure question of law that can be resolved at this time.
First, the main thrust of Plaintiffs' amended
complaint is their claim that it would be unlawful for the
Hospital to destroy the Prouty Garden and use that land as
part of the footprint for a new clinical building without
first obtaining DoN approval for that BCCB project. Now that
DPH has granted the very approval that Plaintiffs say was
required, that part of the complaint is moot. Cf., Tusino
v. Zoning Bd. of Appeals of Douglas, 90 Mass.App.Ct. 89,
92, 56 N.E.3d 863 (2016) (action seeking to compel building
commissioner to order that house be removed became moot once
local board of appeal ordered removal of house). A group of
individuals that includes most of the Plaintiffs in this case
recently filed a new lawsuit challenging DPH's approval
of the Hospital's DoN application under G.L.c. 30A,
§ 14. Since that second lawsuit is the proper place to
litigate any claims that the DoN approval was unlawful for
some reason, this action " is properly dismissed as
moot." See, Olmstead v. Dep't of Telecomms. &
Cable, 466 Mass. 582, 592-93, 999 N.E.2d 125 (2013).
Second, Plaintiffs seek a declaration that the
Hospital acted illegally by spending money to prepare to
demolish the Wolbach Building, in order to make way for the
planned new clinical building, before the Hospital obtained
DoN approval for the project as a whole. Plaintiffs also seek
monetary penalties against the Hospital for this alleged
violation under G.L.c. 111, § 25G. As explained in prior
decisions in this case, DPH expressly authorized the Hospital
to begin working on the demolition of the Wolbach Building
before obtaining DoN approval for the larger BCCB project,
subject to the condition that the cost of that work must be
included in the " maximum capital expenditure"
addressed by the Hospital's DoN application for the
larger project. DPH did so because it found that the Hospital
would have to take down the Wolbach Building whether or not
it used that site for a project subject to DoN approval.
claim that DPH lacked statutory authority to allow the
Hospital to incur certain site preparation costs before
obtaining DoN approval, subject to the condition that the
site could not be used for a new clinical building unless
those expenses received retroactive DoN review and
approval--and that the Hospital therefore acted illegally
when it incurred those costs without prior DoN
approval--raises a pure question of law that can be resolved
on a motion to dismiss. See, e.g., Massachusetts
Federation of Teachers, AFT, AFL-CIO v. Board of Educ.,
436 Mass. 763, 767 N.E.2d 549 (2002). Since Plaintiffs have
standing and there is an actual controversy between the
remaining parties regarding whether the Hospital acted
lawfully in spending money to prepare to demolish the Wolbach
Building before obtaining DoN approval to build a new
clinical facility, the Court is obligated to declare the
rights of the parties as to this issue. See, e.g.,
Attorney General v. Kenco Optics, Inc., 369 Mass.
412, 418, 340 N.E.2d 868 (1976); Gennari v. City of
Revere, 23 Mass.App.Ct. 979, 503 N.E.2d 1331 (1987)
has ample authority and discretion to allow a DoN applicant
to proceed in this manner, under circumstances like these,
even though the DoN statute does not expressly contemplate
that DoN approval may be granted after a limited amount of
site preparation work on a construction project has already
been completed. " In enacting the determination of need
statute, the Legislature intended the department to have a
major role in 'defining the contours of the statute, and
in considering its applicability on an ad hoc basis to
projects that did not fit traditional norms.'"
Shoolman v. Health Facilities Appeals Bd., 404 Mass.
33, 37, 533 N.E.2d 632 (1989), quoting Brookline v.
Medical Area Serv. Corp., 8 Mass.App.Ct. 243, 254, 392
N.E.2d 1070 (1979). The DoN statute only requires DPH review
and approval for any " substantial capital
expenditure" to construct any health care facility. See
G.L.c. 111, § 25C. It is undisputed that the minimum
capital expenditure by hospitals requiring DoN approval from
October 1, 2015, through September 30, 2016, was $17, 826,
988. See Amended Complaint ¶ ¶ 13-14. The amended
complaint does not allege any facts plausibly suggesting that
the Hospital incurred project-related costs in excess of
$17.8 million before obtaining DoN approval.
result, Plaintiffs have not stated a viable claim that the
Hospital acted unlawfully in spending some money to prepare
to demolish the Wolbach Building without first obtaining DoN
approval, subject to retroactive DoN review and approval
before using that site to construct a new clinical
facility--all as expressly authorized by DPH. CL Lopez v.
Commonwealth, 463 Mass. 696, 701, 978 N.E.2d 67 (2012)
(to survive motion to dismiss under Mass.R.Civ.P. 12(b)(6),
complaint must allege facts that, if true, would "
plausibly suggest [ ] . . . an entitlement to relief.")
(quoting Iannacchino v. Ford Motor Co., 451 Mass.
623, 636, 888 N.E.2d 879 (2008), and Bell A. Corp. v.
Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d
Where, as here, the scope of agency authority is at issue, [a
court] must determine whether the agency is acting within
'the powers and duties expressly conferred upon it by
statute and such as are reasonably necessary to carry out its
mission.'" Entergy Nuclear Generation Co. v.
Department of Envtl. Prot., 459 Mass. 319, 331, 944
N.E.2d 1027 (2011), quoting Morey v. Martha's
Vineyard Comm'n, 409 Mass. 813, 818, 569 N.E.2d 826
(1991). Powers granted by the Legislature to an
administrative agency like DPH " include those
necessarily or reasonably implied" by the statute as a
whole. Alliance to Protect Nantucket Sound, Inc. v.
Department of Pub. Utils., 461 Mass. 166, 187, 959
N.E.2d 413 (2011), quoting Grocery Mfrs. of Am., Inc. v.
Department of Pub. Health, 379 Mass. 70, 75, 393 N.E.2d
881 (1979). Thus, the DoN statute, like any statute that
expressly authorizes an administrative agency to make
particular decisions or take other actions, " carries
with it by implication all incidental authority required for
the full and efficient exercise of the power conferred. The
Legislature need not enumerate nor specify, definitely and
precisely, each and every ancillary act that may be involved
in the discharge of an official duty." New England
Med. Ctr., Inc. v. Rate Setting Comm'n, 384 Mass.
46, 52-53, 423 N.E.2d 786 (1981), quoting Scannel v.
State Ballot Law Com., 324 Mass. 494, 501, 87 N.E.2d 16
(1949). For example, statutory authority for a state agency
to take some action implicitly includes the power to issue a
nunc pro tunc order that takes effect at an earlier time, to
prevent a miscarriage of justice or for other good cause.
Almeida Bus Lines, Inc. v. Department of Pub.
Utils., 348 Mass. 331, 339, 203 N.E.2d 556 (1965).
Similarly, DPH has the implicit statutory authority to allow
a hospital to incur initial capital expenditures that do not
exceed the " expenditure minimum" that triggers DoN
review, and then retroactively review and approve those
initial expenditures as part of its review of a larger
Third, Plaintiffs allege that the Hospital's DoN
application was incomplete because it failed to include all
of the costs of demolishing the Wolbach building, costs of
renovation projects at the Longwood campus that Plaintiffs
allege were undertaken in order to prepare for the BCCB
construction, or costs associated with construction planned
at the Hospital's Waltham campus. To the extent that the
amended complaint sought injunctive relief requiring the
Hospital to amend its DoN application to add those costs,
that claim is now moot because DPH has taken final action on
that application. To the extent that Plaintiffs instead
allege that DPH could not lawfully approve the DoN
application without considering additional costs that the
Hospital failed to disclose, that claim must be raised in the
separate lawsuit brought under c. 30A to challenge DPH's
decision. Plaintiffs are not entitled to seek declaratory
relief in this action to assert a claim of error that must be
raised in an action brought under c. 30A. Before the DPH
issued its final decision, there was not yet any "
actual controversy" regarding this claim that was
capable of resolution under G.L.c. 231A, the declaratory
judgment statute. See Town of Hingham v. Department of
Housing and Community Development, 451 Mass. 501,
505-06, 887 N.E.2d 231 (2008). Now that DPH has taken final
action, its decision may only be challenged under c. 30A in
the other pending action, not through a claim for declaratory
relief under G.L.c. 231A in this case. " [O]ne who is
prosecuting in one court an appeal under the administrative
procedure act may not of right circumvent that appeal by
filing [or pursuing] a separate proceeding for declaratory
relief[.]" Cennami v. Department of Pub.
Welfare, 5 Mass.App.Ct. 403, 408, 363 N.E.2d 539 (1977).
since this action is now moot Plaintiffs' claims must be
dismissed without prejudice, except as to the one issue on
which the Court must declare the rights of the parties. See,
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