Opinion
15-P-864
01-06-2016
SHREWSBURY MAPLE, LLC, & another v. BOARD OF SELECTMEN OF SHREWSBURY & others.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiffs, Shrewsbury Maple, LLC, and Spagtacular, LLC, appeal from a Superior Court judgment dismissing their claims pursuant to Mass.R.Civ.P. 12(b)(1), 365 Mass. 755 (1974). On appeal, the plaintiffs claim the judge improperly determined they lacked standing without holding an evidentiary hearing on the matter. The plaintiffs argue they satisfy the requirements for standing under multiple theories. We affirm.
1. Evidentiary hearing. Among the multiple theories the plaintiffs assert in order to demonstrate standing, they first claim the judge erred by precluding an evidentiary hearing to challenge the motion to dismiss. We disagree. The plaintiffs never requested an evidentiary hearing, and the judge was not required to conduct one. See Kleinerman v. Morse, 26 Mass. App. Ct. 819, 821 n.4 (1989).
2. Public rights doctrine. For the first time on appeal, the plaintiffs claim that they have standing under the public rights doctrine. Because the plaintiffs did not raise this argument below, we treat it as waived. See National Lumber Co. v. United Cas. & Sur. Ins. Co., 440 Mass. 723, 729 n.10 (2004). Despite appellate counsel's claims to the contrary, neither the plaintiffs' complaint nor their opposition to the defendants' motion to dismiss raises any public rights argument.
Had the plaintiffs claimed standing based on this theory, their argument would, nevertheless, fail. The public rights doctrine extends only to citizens and is thus inapplicable to the corporate plaintiffs. See Tuckerman v. Moynihan, 282 Mass. 562, 569 (1933) ("a private person may move without showing that he has any legal or special interest in the result beyond his interest as a citizen"). For the first time at oral argument, the plaintiffs suggested that Citizens United v. Federal Election Commn., 558 U.S. 310 (2010), which extended First Amendment protection to corporations, supports treating the plaintiffs as citizens. Because this was not raised in the memorandum or argument before the motion judge, or in the brief before us on appeal, it does not rise to the level of appellate argument as required by Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
3. Injury. The plaintiffs claim that the defendants' actions have caused them some "adverse impact" such that they have proper standing to challenge them. This claim lacks merit for a few reasons. In challenging "local legislation that adopts or amends a zoning ordinance or by-law," as done here, the plaintiffs must establish that they "will suffer an adverse impact from the legislative zoning action, without establishing, in addition, that their injury is special and different from the concerns of the rest of the community." Van Renselaar v. Springfield, 58 Mass. App. Ct. 104, 107 (2003). In order to challenge such routine, legislative decisions, a party may pursue actions either in the nature of certiorari pursuant to G. L. c. 249, § 4, or declaratory judgment pursuant to G. L. c. 231A, § 2.
The plaintiffs' conclusory allegations that they will suffer a "negative impact" from the defendants' actions do not sufficiently demonstrate the harm necessary to confer standing under any of these theories. An action in the nature of certiorari cannot be maintained where, as here, "allegations are speculative and the damage alleged is generalized." Fiske v. Board of Selectmen of Hopkinton, 354 Mass. 269, 271 (1968). Similarly, a declaratory judgment action requires that a party "allege an injury within the area of concern of the statute or regulatory scheme under which the injurious action has occurred." Professional Fire Fighters of Mass. v. Commonwealth, 72 Mass. App. Ct. 66, 74 (2008), quoting from Massachusetts Assn. of Indep. Ins. Agents & Brokers, Inc. v. Commission of Ins., 373 Mass. 290, 293 (1977). The adverse impact the plaintiffs claim from the defects in the defendants' procedure is "speculative, remote, and indirect" and "insufficient to confer standing." Professional Fire Fighters of Mass., supra at 75. In fact, at oral argument, the plaintiffs' appellate counsel admitted to the absence of any adverse impact related to the defendants' actions.
The plaintiffs further assert that G. L. c. 40A, § 5, confers standing specifically in the zoning context and argue that § 5 gives the defendants the right to challenge the defendants' actions. This too lacks merit. The plaintiffs claim that the "person aggrieved" language contained in other sections of G. L. c. 40A, and absent from § 5, suggests that § 5 details a citizen's general right to have his municipality enforce applicable law. However, nothing in § 5 provides an independent basis for standing. The plaintiffs have cited no authority that holds otherwise. Because the plaintiffs are not "persons aggrieved" under G. L. c. 40A, they cannot prove any adverse impact, and because they are not citizens for the purpose of the public rights doctrine, the motion judge properly dismissed their complaint.
Costs and fees. We allow the defendants' request for attorney's fees and double costs under Mass.R.A.P. 25, as amended, 378 Mass. 925 (1979). An appeal is frivolous when the underlying law is settled and there is no reasonable expectation of a reversal. Avery v. Steele, 414 Mass. 450, 455 (1993). Pierce v. Clark, 66 Mass. App. Ct. 912, 915 (2006). The plaintiffs could not have reasonably anticipated a reversal in this appeal. In accordance with the procedure described in Fabre v. Walton, 441 Mass. 9, 10-11 (2004), within fourteen days of the date of the rescript, the defendants shall file with this court and serve on the plaintiffs a motion for determination of the amount of their appellate fees and costs, supported by affidavit and any additional supporting materials. Within fourteen days thereafter, the plaintiffs may file with this court and serve on the defendants an opposition.
The plaintiffs' request for attorney's fees and costs is denied.
Judgment affirmed.
By the Court (Green, Vuono & Meade, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: January 6, 2016.