Caption Date: November 2, 2017
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT 3353
WASHINGTON, LLCâS, 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 plaintiffsâ
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 defendantsâ
Motion to Dismiss is ALLOWED.
following facts are taken from the plaintiffsâ Complaint and
documents filed by the parties in connection with the
defendantsâ Motion to Dismiss under Mass.R.Civ.P. 12(b)(1).
See Audoire v. Clients â Sec. Bd., 450 Mass. 388,
390 n.4 (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 discussion below.
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 Washingtonâs request based on
its findings that the Project violated the Codeâs
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 ISDâs 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
Washingtonâs 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 Boardâs
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 welfare."
15, 2017, the plaintiffs filed the present action for
judicial review of the Boardâs decision. The plaintiffs are
tenants of residential buildings located at 180 and 190 Green
Street. The plaintiffsâ 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 plaintiffsâ 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 (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,
In 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 plaintiffsâ
jurisdictional claim. See Callahan v. FirstCongregational Church of Haverhill, 441 Mass. 699,
710-11 (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 ...