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Ricker v. Araujo

Superior Court of Massachusetts, Suffolk

November 3, 2017

Jessica RICKER et al.[1]
Christine ARAUJO[2] et al.[3]

          Caption Date: November 2, 2017


          Mark A. Hallal, Justice

         The 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[4] 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.


         The 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 (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.

         3353 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.

         In 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.

         Subsequently, 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 welfare."

         On June 15, 2017, the plaintiffs filed the present action for judicial review of the Board’s decision.[5] 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.


         I. 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, 705 (1980).

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 plaintiffs’ 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 ...

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