Jessica Ricker et al. 
Christine Araujo  et al. 
November 3, 2017
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT 3353
WASHINGTON, LLC'S, MOTION TO DISMISS PURSUANT TO M.R.C.P.
12(b)(1) and 12(b)(6)
A. Hallal, Justice
plaintiffs filed this action seeking judicial review of a
decision of the City of Boston Zoning Board of Appeals (the
" Board" ) granting defendant 3353 Washington, LLC
(" 3353 Washington" ) eight variances to erect a
new six-story mixed-use building in Jamaica Plain. The
defendants now move to dismiss the
plaintiffs' Complaint pursuant to Mass.R.Civ.P. 12(b)(1)
and 12(b)(6) arguing that the plaintiffs do not have standing
to bring the zoning appeal and thus, the court lacks subject
matter jurisdiction. For the following reasons, the
defendants' Motion to Dismiss is ALLOWED.
following facts are taken from the plaintiffs' Complaint
and documents filed by the parties in connection with the
defendants' Motion to Dismiss under Mass.R.Civ.P.
12(b)(1). See Audoire v. Clients' Sec. Bd., 450
Mass. 388, 390 n.4, 879 N.E.2d 52 (2008) ( " A judge,
and logically a reviewing court, may consider documents and
other materials outside the pleadings when ruling a rule
12(b)(1) motion" ). Some facts are reserved for
Washington is the owner of a property located at 211 Green
Street in Jamaica Plain (the " Property" ). The
Property is a corner lot abutted by Green Street and
Washington Street in a district zoned as " Local
Industrial" under the Boston Zoning Code ("
Code" ). At all relevant times it was improved with a
detached retail space.
December 2016, 3353 Washington submitted an application to
the Boston Inspectional Services Department (" ISD"
) seeking a permit to construct a six-story building with
forty-five residential units, ground floor retail space, and
twenty-four off-street parking spaces on approximately 15,000
square feet of land comprised of the Property and four
parcels adjacent thereto (the " Project" ). In
January 2017, ISD denied 3353 Washington's request based
on its findings that the Project violated the Code's
restrictions on building height and area, and portions of the
Code concerning, inter alia, off-street parking,
useable open space, rear yard, and off-street loading area
requirements. 3353 Washington timely appealed ISD's
decision to the Board.
a public hearing was held on May 9, 2017 by the Board,
wherein 3353 Washington sought variances. Following the
public hearing, the Board issued a decision allowing 3353
Washington's appeal on May 23, 2017. Pursuant to that
decision, the Board granted 3353 Washington eight variances
that it needed to move forward with the Project. The
Board's decision stated that the variances were "
necessary for the reasonable use of the land," and that
the Project was " the result of extensive community
outreach" and would " not be injurious to the
neighborhood or otherwise detrimental to the public
15, 2017, the plaintiffs filed the present action for
judicial review of the Board's decision. The
plaintiffs are tenants of residential buildings located at
180 and 190 Green Street. The plaintiffs' residences are
on lots situated on the opposite side of Green Street. The
residences are not directly across the street from the
Property, but are located within 300 feet of it. The
plaintiffs' residences are adjacent to the west side of
Greenley Place, which is a side street that intersects with
Green Street. The Property is across the street from the
easternmost of the three lots that are situated in between
the east side of Greenley Place and Washington Street. All
four plaintiffs have lived in the Green Street neighborhood
for a minimum of ten years. All but one of the plaintiffs
have worked in the neighborhood for at least twelve years.
Standard of Review
We treat standing as an issue of subject matter
jurisdiction." Ginther v. Commissioner of Ins.,
427 Mass. 319, 322, 693 N.E.2d 153 (1998). Because subject
matter jurisdiction concerns to the power of the court to
hear and decide the matter, establishing standing is a
jurisdictional prerequisite to judicial review. See
Ginther, 4427 Mass. at 322 n.6. Therefore, standing
may be a proper basis for dismissal under Mass.R.Civ.P.
12(b)(1), " even though it could also be a basis for
dismissal under Rule 12(b)(6) for failure to state a claim
upon which relief can be granted." Doe v.
Governor, 381 Mass. 702, 705, 412 N.E.2d 325 (1980).
reviewing a motion to dismiss for lack of subject matter
jurisdiction, the court will consider the factual allegations
of the Complaint as well as " documents and other
materials outside of the pleadings" that the parties
have submitted to address the merits of the plaintiffs'
jurisdictional claim. See Callahan v. First
Congregational Church of Haverhill, 441 Mass. 699,
710-11, 808 N.E.2d 301 (2004) (documents submitted in
connection with Rule 12(b)(1) motion mount challenge to
" the accuracy (rather than the sufficiency) of the
jurisdictional facts pleaded by the plaintiff" ). The
plaintiff carries the burden of proof. Standerwick v.
Zoning Bd. of Appeals, 447 Mass. 20, n.20, 849 N.E.2d