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15-P-1227                                             Appeals Court


  311 WEST BROADWAY LLC      vs. ZONING BOARD OF APPEAL OF BOSTON &
                                 others.1



                             No. 15-P-1227.

            Suffolk.      May 13, 2016. - August 23, 2016.

            Present:    Katzmann, Carhart, & Sullivan, JJ.


Zoning, Variance, Appeal, Jurisdiction. Jurisdiction, Superior
     Court, Zoning. Superior Court, Jurisdiction.



     Civil action commenced in the Superior Court Department on
June 13, 2013.

     A motion to dismiss was heard by Brian A. Davis, J., and a
motion to file an amended complaint was also heard by him.

    Edward J. Lonergan for 311 West Broadway LLC.
    Kate Moran Carter for Bromfield Development LLC.
    Adam Cederbaum for zoning board of appeal of Boston.


    KATZMANN, J.       The plaintiff, 311 West Broadway, LLC (311

West Broadway), appeals from a judgment of the Superior Court

dismissing its pending appeal pursuant to the Boston zoning


    1
        Bromfield Development, LLC, and Timothy Johnson.
                                                                    2


enabling act, St. 1956, c. 665, § 11, as amended through St.

1993, c. 461, § 5 (zoning act), from a decision of the defendant

zoning board of appeal of Boston (board) in favor of the

defendant Bromfield Development, LLC (Bromfield), in the wake of

a new decision issued by the board after an assented-to,

judicially-ordered remand.   The Superior Court had gained

jurisdiction when an appeal was filed from the initial decision

of the board, the parties agreed after the filing of that appeal

to a judicial remand, the order of remand created no scheduling

deadlines for the parties, and the parties provided status

reports to a judge regarding the proceedings before the board

and the further Superior Court litigation that they contemplated

following the board's new decision.     311 West Broadway did not

file an appeal from the new decision of the board, and the

question is whether the court was deprived of jurisdiction

because a new appeal was required.    We conclude that, in the

circumstances here, a new appeal was not required and the court

was not divested of jurisdiction.     We reverse.

     Background.2   311 West Broadway owns property at 311-313

West Broadway in the South Boston section of Boston that abuts

property owned by Bromfield at 315-319 West Broadway.    Starting

in 2012, Bromfield sought approval to change the occupancy of

     2
       Because this appeal presents a procedural question, we
focus extensively on the procedural background necessary to
understand the case in its current posture.
                                                                   3


its property from a fitness center and private club to a fitness

center, offices, and residential units, and to build a new four-

story vertical addition over its existing one-story building

along with new front, side, and rear decks and additional off-

street parking.

     In a zoning code refusal dated July 20, 2012, the

inspectional services department of Boston (ISD) denied

Bromfield's application, which was designated # ALT151390.

Bromfield appealed to the board, which issued a decision in

Bromfield's favor on May 21, 2013 (the 2013 decision),

referencing application # ALT1513903 and case number BZC-32279.

The 2013 decision was filed with the ISD on June 12, 2013.

     On June 13, 2013, 311 West Broadway appealed to the

Superior Court pursuant to § 11 of the zoning act, which

provides that "[a]ny person aggrieved by a decision of said

board of appeal . . . may appeal to the superior court

department of the trial court sitting in equity for the county

of Suffolk . . . provided, however, that such appeal is filed

. . . within twenty days after such decision is filed with the

building commissioner."   Bromfield answered the complaint on

August 30, 2013.   311 West Broadway served a motion for summary

judgment on Bromfield and the board in May, 2014.


     3
       Some pages of the 2013 decision list the application
number as "ALT15390." This appears to be a typographical error.
                                                                    4


    On June 25, 2014, Bromfield filed what it labeled as an

"(Assented To) Emergency Motion to Remand," asserting that 311

West Broadway's "claims of improper procedures and challenges to

the Zoning Relief [could] be redressed" with a new public

hearing.   The only party that had assented to the remand at that

point, however, was the board.   Bromfield's asserted emergency

was that the deadline for its opposition to 311 West Broadway's

motion for summary judgment (already previously extended twice)

and the date for its deposition of 311 West Broadway were fast

approaching.

    311 West Broadway opposed the remand motion.   It claimed,

inter alia, that the motion was a dilatory maneuver by Bromfield

and that, if any remand was allowed over its opposition, it

should not be permitted to derail the Superior Court process.

Specifically, 311 West Broadway requested that any remand be

considered as a "stay" for a limited duration not to exceed four

months, that the Superior Court retain jurisdiction, and that

its motion for summary judgment not be deemed waived.

    Apparently the parties then further discussed the

possibility of remand.   By June 27, all parties had signed off

on Bromfield's "Re-Filed (Assented To) Motion to Remand."

Whereas the proposed order attached to Bromfield's first remand

motion had expressly provided that "[a]ny party aggrieved by the

Board's decision after remand shall have 20 days to file an
                                                                    5


amended complaint challenging the newly issued decision of the

Board," the new proposed order eliminated that proviso, among

others.    311 West Broadway contended below that the removal of

this provision was the specific result of negotiation.   A judge

allowed the motion to remand on July 2, 2014, although the

accompanying proposed order was never endorsed.    Prior to the

remand hearing before the board, Bromfield submitted an amended

set of plans for its proposed development project but not a new

permit application, and it did not submit the revised plans to

the ISD.

     The board conducted its hearing on remand on September 23,

2014, and voted in favor of Bromfield at the hearing.    However,

the board did not immediately issue a new written decision.

Consequently, when the parties were before a Superior Court

judge (status judge) for a status conference on December 1,

2014, it was clear that 311 West Broadway was going to remain

aggrieved, but the written decision had yet to be issued.4




     4
       The following exchange during the December 1 status
conference between the status judge and counsel for 311 West
Broadway is instructive:

     The court: "[If the Board's decision] turns out in a
     fashion not favorable to the abutter, . . . we do round
     two."

     Counsel: "Yes, Your Honor. And we know how it's going to
     turn out, because they took their vote."
                                                                    6


    The question of the postremand procedures that 311 West

Broadway would need to pursue was discussed obliquely at this

conference.    Counsel for the board and the status judge engaged

in the following exchange:

    Counsel: "[The board's filing of its decision with
    the commissioner of ISD] ordinarily triggers a 20-day
    period in which to appeal. So that would -- If it's
    the first time around, that's when the plaintiff would
    come in. I believe this Court has retained
    jurisdiction."

    The court:    "Yeah."

    Counsel:    "I don't know if the —-"

    The court:    "Yeah."

    Counsel: "So it would be filed with the Commissioner
    of Inspectional Services. I don't know if we would
    say that that 20 days necessarily runs here and we
    know what the plaintiff is going to do."

    The court:    "Yeah."

Counsel for 311 West Broadway explained to the status judge that

he would not need time to assess the board's new decision and

digest it because "we know exactly what's going to happen."

    At the December 1 status conference, 311 West Broadway

attempted to secure judicial assent to its plan to resume

litigation immediately by taking up the summary judgment motion

it had filed prior to remand.   When the status judge suggested

that the board's original decision -- on which 311 West Broadway

was seeking summary judgment -- was now moot, 311 West Broadway

responded that the decision had been modified but not
                                                                       7


substantially and that it was the "same case."     After some

additional back and forth, the status judge told 311 West

Broadway that he "can't accelerate and push a summary judgment

to something for which there hasn't been a decision filed yet,

so I really think we need to wait.     I'm inclined to put it on

the end of January.    If you feel aggrieved that there should be

some sort of an accelerated schedule of something, then you

raise it at that time."   Counsel for Bromfield, who was present,

did not comment on any of the above.

    The parties then agreed to a further status conference date

of January 27, 2015.   The status judge advised them to try to

reach agreement on how to proceed before then but, if not, said

they could raise any issue at the next date.     The board issued

its new decision on January 6, 2015 (2015 decision), referencing

application # ALT151390, case no. BZC-32279, as well as the

previous zoning code refusal on BZC-32279 that it annuls.       The

2015 decision lists the differences between Bromfield's "initial

proposal" or "initially approved proposal" and its "new

development proposal" or "altered Project" in some detail.       The

differences include a decrease in the size of the vertical

addition and removal of some proposed decking, a reduction in

the number of residential units, and increased off-street

parking.
                                                                    8


     The 2015 decision was filed with the ISD on January 7,

2015.    The January 27 status conference date would therefore

have fallen right at the tail end of the twenty-day period

following that filing.    However, Bromfield moved to postpone

that status conference, and it was rescheduled to February 25,

2015.5    On February 24, Bromfield filed an assented-to motion for

a further postponement of the status conference to March 24,

2015.

     Before the parties ever made it back into court, on March

15, 2015, Bromfield moved to dismiss for lack of subject matter

jurisdiction pursuant to Mass.R.Civ.P. 12(b)(1), 365 Mass. 754

(1974), contending that 311 West Broadway had failed to appeal

the 2015 decision on what Bromfield characterized as a "new

project" within the twenty-day statutory time frame.    Bromfield

contended that the 2015 decision was "unrelated" to the 2013

decision, which related to a "different project."    The board

joined Bromfield's motion to dismiss.    On or around March 25,

2015, 311 West Broadway moved pursuant to Mass.R.Civ.P. 15, 365

Mass. 761 (1974), for permission to file an amended and verified

complaint to update the record to reflect proceedings since

remand.




     5
       The basis for that postponement is not clear from the
record.
                                                                      9


     Bromfield's motion to dismiss and 311 West Broadway's

motion to amend the complaint came before a different judge

(motion judge) from both the judge who ordered the remand and

the judge who presided over the December status conference.     In

an order dated May 12, 2015, the motion judge granted

Bromfield's motion to dismiss on the ground that "in light of

the plaintiff's failure to file a timely appeal after the

board's decision on remand . . . the Superior Court lacked

jurisdiction to entertain the plaintiff's appeal."6,7

     Discussion.   We review the allowance of a motion to dismiss

for lack of subject matter jurisdiction under rule 12(b)(1) de

novo.    Opare's Case, 77 Mass. App. Ct. 539, 541 (2010).   Because

the question of subject matter jurisdiction goes to the power of

the court to hear and decide the matter, we consider matters in

the record outside the face of the complaint.    Ginther v.

Commissioner of Ins., 427 Mass. 319, 322 n.6 (1998).    Although

this matter arises under the Boston zoning act, in seeking to

resolve the legal question posed, we are guided by cases decided

     6
       The quotation is from an unpublished memorandum and order
of this court issued pursuant to our rule 1:28. Zitzkat v.
Zoning Bd. of Appeals of Truro, 77 Mass. App. Ct. 1103 (2010).
While an unpublished summary decision may be consulted for
persuasive value, it is not binding precedent. Chace v. Curran,
71 Mass. App. Ct. 258, 260 n.4 (2008). The reasoning of the
summary decision relied on by the motion judge does not control
here.
     7
       In that order, the judge also "simultaneously denied as
moot" 311 West Broadway's motion to amend the complaint.
                                                                   10


under the analogous provisions of G. L. c. 40A, § 17.    See

Lapidus v. Board of Appeal of Boston, 51 Mass. App. Ct. 723, 727

(2001); Steamboat Realty, LLC v. Zoning Bd. of Appeal of Boston,

70 Mass. App. Ct. 601, 604 n.6 (2007).

       The sole question for our consideration is whether the 2015

decision deprived the Superior Court of jurisdiction over the

ongoing dispute between the parties such that 311 West Broadway

was required to file a fresh appeal within twenty days of the

filing of that decision with the ISD to maintain its litigation

in that court.    We conclude that, under the circumstances

present here, the Superior Court's jurisdiction did not expire

automatically by virtue of the issuance of the 2015 decision.

Consequently, the motion judge was not required to dismiss the

action as a matter of law and was, instead, free to consider 311

West Broadway's motion to amend its complaint in its previous

timely-filed appeal.

       Bromfield and the board (collectively, defendants) assert

that the twenty-day framework in § 11 is jurisdictional and that

311 West Broadway's failure to comply deprived the Superior

Court of subject matter jurisdiction.    Specifically, the

defendants contend that 311 West Broadway had to either file a

new appeal in Superior Court or move to amend its complaint

within twenty days of the filing of the 2015 decision with the

ISD.    However, implicit in the concession that an amended
                                                                  11


complaint would have satisfied § 11's jurisdictional requirement

is a recognition that the original lawsuit was not rendered a

nullity by the 2015 decision.

    This is consistent with case law concerning amendments to

complaints underlying zoning decision appeals, even in cases

where amendment would allow otherwise time-barred action.     "That

the action before such an amendment was flawed does not

necessarily preclude a curative amendment though the flaw is

described as 'jurisdictional.' . . .   [Our] cases evince a

policy of broad powers of amendment -- more liberal than

elsewhere -- which has characterized our practice.   Particularly

relevant is the familiar law that an amendment may be allowed

which would bring in a party who, when added, would have been

barred by a statute of limitations from commencing an

independent action and, indeed, that this is a reason to permit

the amendment."   Rafferty v. Sancta Maria Hosp., 5 Mass. App.

Ct. 624, 627 (1977) (quotations omitted).   See McLaughlin v.

Rockland Zoning Bd. of Appeals, 351 Mass. 678, 683 (1967)

(concluding that former version of G. L. c. 40A "does not

deprive the court of amending power in respect of timely

appeals" and allowing plaintiff to amend complaint to add

original applicant as defendant beyond statutory time frame for

service); Shaughnessy v. Board of Appeals of Lexington, 357

Mass. 9, 12-14 (1970).
                                                                   12


     There is nothing in the plain text of the zoning act that

is inconsistent with the conclusion that the Superior Court

retained the subject matter jurisdiction conferred by the

previously filed timely appeal.   The zoning act requires only

that the "appeal" be filed within twenty days.   It does not

explicitly address the procedures that must be followed when

that appeal results in a judicially-ordered remand pursuant to

which the board issues a new decision.   We cannot discern any

statutory purpose that would be meaningfully served by requiring

the filing of multiple lawsuits by and against the same parties

concerning what is, at bottom, the same project, albeit with

some modifications.8   See Cappuccio v. Zoning Bd. of Appeals of

Spencer, 398 Mass. 304, 309 (1986) (construing statutory

language to avoid "absurd result").   The defendants essentially

concede as much in allowing that the zoning act would have been

satisfied by an amended complaint as opposed to a brand new

action.

     If all that was required was for 311 West Broadway to seek

leave to amend its initial complaint, we are satisfied that § 11

did not deprive the court of jurisdiction to entertain such


     8
       In its brief on appeal, Bromfield relied on a decision of
the Land Court. See Chatfield-Taylor v. Nantucket Planning Bd.,
13 Land Ct. Rep. 595, 596-597 (Land Court No. 301672 Dec. 7,
2005) (Piper, J.). In reaching our conclusion, we are informed
by the guidance provided by the judge in that case, who faced a
similar question.
                                                                   13


request beyond the twenty-day statutory period.   The previously

timely filed appeal concerning Bromfield's underlying permit

application was still pending when the 2015 decision issued and

a review of the record -- and specifically the December, 2014,

status conference -- indicates that all parties and the status

judge were essentially in agreement that the Superior Court

litigation would resume in some form after the new decision

issued, although there was clearly confusion on all sides about

the form such resumption would take.9   Despite the fact that the

board had already voted in Bromfield's favor by the time of the

December status conference, at no point did Bromfield assert

that the court would be deprived of jurisdiction by virtue of

the new decision.   It then twice postponed status conferences

after that decision issued, eliminating an opportunity for all

parties to revisit the issue on the record within the twenty-day

time frame.

     We recognize the existence of cases strictly enforcing

statutory zoning appeal requirements even in situations where

the result might appear harsh.   See, e.g., Cappuccio, 398 Mass.

at 311-312 (zoning appeal filed one day after twenty-day

     9
       In pointing to the shared understanding of the parties, we
are not suggesting that the parties created subject matter
jurisdiction by agreement where it would have otherwise been
lacking. That being said, nothing in the parties' actions
suggested a view that as a matter of law, subject matter
jurisdiction would be defeated by virtue of the new decision
after remand.
                                                                  14


deadline of G. L. c. 40A, § 17, left court "without jurisdiction

to entertain the appeal").   Although courts police zoning appeal

jurisdictional requirements "in the strongest way," Pierce v.

Board of Appeals of Carver, 369 Mass. 804, 808 (1976), as noted,

the underlying appeal that set the Superior Court litigation in

motion here was timely filed.    A delay in moving for leave to

amend the complaint does not vitiate the timeliness of the

previously filed appeal.   Consequently, any delay in seeking

leave to amend did not "nullify the essential acts . . . to

deprive the court of the jurisdiction which it has acquired."

Shaughnessy, 357 Mass. at 13 (concluding that statutory language

ostensibly mandating dismissal of appeal for late-filed

affidavit does not actually require dismissal unless failure to

file affidavit within prescribed time was prejudicial).

    Other than those initial requirements that put parties on

notice of the challenge to a zoning board's decision, statutory

zoning appeal requirements "have been dealt with leniently"

because "there is a different approach to the carrying out of

the later steps of an action which has been timely commenced."

Pierce, 369 Mass. at 808, 809.    See Halko v. Board of Appeals of

Billerica, 349 Mass. 465, 467-468 (1965).    With respect to

"slips in the procedure for judicial review" that are not

"destructive" of the purposes of the procedural scheme, we

consider "how far they have interfered with the accomplishment
                                                                   15


of the purposes implicit in the statutory scheme and to what

extent the other side can justifiably claim prejudice."      Pierce,

369 Mass. at 805, quoting from Schulte v. Director of the Div.

of Employment Security, 369 Mass. 74, 79-80 (1975).

    In light of this case law concerning the later steps of a

timely commenced action and the silence of the zoning act with

respect to amending complaints after the board issues a new

decision on remand, we consider whether dismissal was consistent

with the statutory purposes or necessary to protect Bromfield

from prejudice.   See Water Dept. of Fairhaven v. Department of

Envtl. Protection, 455 Mass. 740, 744 (2010) ("Our primary duty

in interpreting a statute is to effectuate the intent of the

Legislature in enacting it. . . .   Where the meaning of a

statute is not plain from its language, we consider the cause of

its enactment, the mischief or imperfection to be remedied and

the main object to be accomplished, to the end that the purpose

of its framers may be effectuated" [quotations omitted]).

    The strict statutes of limitation for judicial review

reflect the legislative intent that "affected parties should be

able to rely on the decisions of boards of appeals and special

permit granting authorities which have not been challenged

within a limited period."   Iodice v. Newton, 397 Mass. 329, 334

(1986).   See Kramer v. Zoning Bd. of Appeals of Somerville, 65

Mass. App. Ct. 186, 192-193 (2005) ("The statutes of limitation
                                                                   16


for judicial review of special permit decisions -- whether

twenty days, or ninety days where there has been a defect in

notice -- exist to promote finality and to preclude attacks

indefinitely on decisions which have already been tested in the

hearing process").   Here, however, Bromfield cannot credibly

contend that it was unaware of 311 West Broadway's continuing

challenge to its project, and the pendency of previously filed

litigation with an imminent court date set for a status

conference eliminates all concerns about finality or attacks in

the indefinite future.   The underlying legislative purposes are

therefore not vindicated by the dismissal here.

    Nor has Bromfield even suggested that any inaction by 311

West Broadway caused a "material delay in prosecuting the

appeal," McLaughlin, 351 Mass. at 683, that prejudicially

disadvantaged Bromfield.   Especially given that the parties had

ongoing court dates scheduled at all relevant times and that it

was Bromfield that moved to postpone those court dates after the

2015 decision issued, this would be a difficult proposition to

sustain.   Instead, Bromfield has rested its argument entirely on

a reading of the statutory scheme that would require dismissal

of even meritorious appeals of zoning decisions that had been

timely filed and remained pending during remand.   We do not

agree that the statutory scheme requires that a party that has

already appealed a decision of the board in litigation that
                                                                   17


remains pending, and that continues to be aggrieved by a

decision of the board after remand ordered as part of that

litigation, must move to amend its complaint within twenty days

after the postremand decision is filed.   Cf. DiGiovanni v. Board

of Appeals of Rockport, 19 Mass. App. Ct. 339, 343 (1985) ("If a

somewhat ambiguously worded document is understood by all

concerned to be a request for a specific form of relief, the

notice requirements of G. L. c. 40A, § 15, are satisfied.     We do

not exalt form over substance in such a case"); Musto v.

Planning Bd. of Medfield, 54 Mass. App. Ct. 831, 837 (2002)

(unreasonable elevation of form over substance for planning

board to deny extension of time for applicant to obtain formal

approval from board of health when informal approval had already

been granted).   The remand here was at the unanimous request of

the parties and the proceedings below reflect that the parties

were to report back to the court after the board took action.

That this remand was not understood to have simply annulled the

2013 decision and 311 West Broadway's appeal therefrom is

evidenced by the fact that the remand order was not contained in

a judgment terminating the appeal and ordering a new hearing on

an entirely new application.

    Bromfield's contention that the board's decision on remand

related to an entirely different or new project is belied by the

facts that Bromfield did not actually begin the process again by
                                                                     18


filing a new application10 with the ISD (and so no new refusal

letter issued) and that the board's new decision continued to

reference the same underlying application (# ALT151390) and case

number (BZC-32279).   The court already had jurisdiction over

that application and that zoning board case, and the new

decision did nothing to vitiate that.   This is not merely a

point about form without regard to substance.    Anyone interested

in the status of that application would know that the original

board decision had been timely appealed and could tell from the

Superior Court docket that the appeal was still underway.      Cf.

Pierce, 369 Mass. at 808 (importance of furnishing constructive

notice to interested persons that board's decision has been

challenged and may be overturned).   Again, Bromfield cannot

possibly claim to have been unaware that 311 West Broadway was

continuing to press its challenge to the project.    In light of

these considerations, we do not consider the claimed materiality

of the changes to the project dispositive here.

     It is important to emphasize that our holding here is a

narrow one based on the facts of this case.   Our reasoning would

not perforce apply to all cases in which the board issued a new

decision after a judicially-ordered remand.     See McLaughlin, 351

     10
       We do not suggest that whether a new application   has been
filed is necessarily dispositive to determining whether   a new
appeal is required from a resulting board decision. We    simply
note that in this case, it is relevant to an assessment   of the
ongoing understanding of the parties.
                                                                    19


Mass. at 683 ("Of course, where there is substantial delay or

inaction . . . the aim and the language of the statute make

emphatic the propriety of dismissal of the appeal").    Given 311

West Broadway's diligent efforts to assert its rights here and

the complicated procedural maneuvering involved, there is no

justification in the statute or in equity for imposing a

"gotcha" forfeiture of its rights.    Cf. id. at 682 ("We think

the Legislature, with an intent of expedition, did not intend to

create a series of procedural barriers reminiscent of an earlier

age of the law").

    Conclusion.     Because it appears that the motion judge

believed that he was required by statute to dismiss the

complaint in the wake of the board's new decision on remand, we

reverse the judgment of dismissal.    The case is remanded for

further consideration consistent with this opinion, including

reconsideration of the motion to amend the complaint.       On

remand, the judge is free to consider the extent of any proposed

amendments, whether good reason exists therefor, and any delay

in pursuing amendment.    See Cappuccio, 398 Mass. at 314

("Although rule 15[a] provides that leave to amend 'shall be

freely given when justice so requires,' Mass.R.Civ.P. 15[a], 365

Mass. 761 [1974], broad discretion remains with the judge").      To

the extent a judge determines that there was any undue delay in

311 West Broadway's efforts to assert its challenge, we "leave
                                                                 20


the sanction to the discretion of the judge rather than

mechanically to destroy the action."   Pierce, 369 Mass. at 809.11

                                   So ordered.




    11
       Given the conclusion we reach, we need not address 311
West Broadway's contentions that the 2015 decision was drafted
by Bromfield for the board and that it contains misstatements
and distortions concerning the remand process. To the extent
still relevant, these issues can be addressed on remand.
