Heard: March 7, 2018.
action commenced in the Land Court Department on December 3,
motion to dismiss was heard by Gordon H. Piper, J.
Michael S. Rabieh for the plaintiff.
J. Lonergan for Esh Circus Arts, LLC, & others.
Present: Meade, Rubin, & Neyman, JJ.
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.
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.
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
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) .
Rebuttable presumption of aggrievement.
claims that the judge erred in finding that Murrow lacked a
rebuttable presumption of aggrievement as a "party in