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Murrow v. ESH Circus Arts, LLC

Appeals Court of Massachusetts, Suffolk

May 17, 2018

CLAUDIA MURROW
v.
ESH CIRCUS ARTS, LLC, & others. [1]

          Heard: March 7, 2018.

         Civil action commenced in the Land Court Department on December 3, 2015.

         A motion to dismiss was heard by Gordon H. Piper, J.

          Michael S. Rabieh for the plaintiff.

          Edward J. Lonergan for Esh Circus Arts, LLC, & others.

          Present: Meade, Rubin, & Neyman, JJ.

          MEADE, J.

         Following the approval by the zoning board of appeals of Somerville (ZBA) of a modification of a special permit submitted by Esh Circus Arts, LLC, Ellen Waylonis, and Belam II, LLC, the property owner (collectively Esh unless otherwise noted), Claudia Murrow appealed the approval to the Land Court, where a judge dismissed Murrow's complaint due to her lack of standing. Judgment entered and Murrow appeals. We affirm.

         1. Background.

         Esh operates a "for-profit [circus] school for instruction in arts, skills, or vocational training" in Somerville. Esh held a special permit that the ZBA previously granted in an earlier case. On September 30, 2015, Esh applied for what appears to be a modification to that special permit from the ZBA, seeking to increase the floor area and alter the site plan. Notice of the application and the public hearing "was given to persons affected and was published and posted, all as required by G. L. c. 40A, § 11, and the Somerville Zoning Ordinance, " as noted in the ZBA decision. After a public hearing, on November 4, 2015, the ZBA unanimously voted to approve Esh's application. The decision was filed with the city clerk on November 13, 2015.

         Murrow received notice of the ZBA decision and filed a complaint in the Land Court on December 3, 2015. She alleged, among other things, that Esh's proposed changes would cause a detrimental health, safety, and welfare effect on Murrow and Esh's surrounding neighbors. Waylonis filed a motion to dismiss Murrow's complaint on July 8, 2016, arguing that Murrow was not an aggrieved party and therefore lacked standing. The parties filed an excerpt of the Somerville Zoning Code and a list of abutters for the judge's consideration. Following a hearing, the judge allowed the motion to dismiss on August 26, 2016, finding that Murrow was not a party in interest entitled to a rebuttable presumption of aggrievement, and that her complaint failed to state facts that would establish her standing to appeal the ZBA's decision.

         2. Discussion.

         We review the allowance of a motion to dismiss de novo, accepting the allegations in the complaint as true and drawing all reasonable inferences in favor of the plaintiff. See Curtis v. Herb Chambers 1-95, Inc., 458 Mass. 674, 676 (2011). In order to withstand a motion to dismiss, the complaint must include factual allegations sufficient "to raise a right to relief above the speculative level." Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), quoting from Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) .

         a. Rebuttable presumption of aggrievement.

         Murrow claims that the judge erred in finding that Murrow lacked a rebuttable presumption of aggrievement as a "party in interest" ...


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