NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-574
BACK BEACH NEIGHBORS COMMITTEE
vs.
DEPARTMENT OF TRANSPORTATION.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, the Back Beach Neighbors Committee (BBNC),
appeals from the dismissal by a Superior Court judge of its
complaint that sought to require the defendant, the
Massachusetts Department of Transportation (MassDOT), to block
vehicular access between Granite Street and Beach Street in the
town of Rockport (town). As a matter of law, the authority to
grant the BBNC the relief it seeks does not lie with MassDOT;
further, if MassDOT did have that authority, it could not be
compelled to grant that relief. Accordingly, we affirm.
Background. We set forth the facts in the light most
favorable to the BBNC as gleaned from the complaint and from the BBNC's petition to MassDOT, which was incorporated within the
complaint.
The BBNC is an unincorporated association of neighbors and
abutters who own property on Beach Street or near Back Beach.
The BBNC is concerned that Beach Street is unsafe because of
issues including traffic. At its northern terminus, Beach
Street intersects with Granite Street. The BBNC's complaint
alleged, in the alternative, that Granite Street is either a
county road or a State highway.
The BBNC submitted to MassDOT a petition requesting that,
to limit traffic on Beach Street, MassDOT erect a barrier
blocking vehicular access between Beach Street and Granite
Street. The BBNC sought a hearing on its petition "either under
G. L. c. 82 or G. L. c. 30A." MassDOT took no official action
on the petition. A MassDOT official informed the BBNC by
telephone that MassDOT lacked statutory and regulatory authority
over Beach Street.
The BBNC filed the Superior Court complaint, alleging that
MassDOT had violated G. L. c. 30A, § 14 (7), by failing to act
on the BBNC's petition; violated G. L. c. 30A, § 4, by failing
to promulgate regulations prescribing the process of
petitioning; and violated its responsibility under G. L. c. 82,
§ 2, and G. L. c. 34B, § 6 (d), statutes pertaining to county
2 roads. The relief sought included that the Superior Court
should rule de novo on the BBNC's petition and order that
vehicular access be blocked between Beach Street and Granite
Street.1
MassDOT moved to dismiss the complaint pursuant to Mass.
R. Civ. P. 12 (b) (6). After a hearing, the judge allowed the
motion to dismiss. Noting that the BBNC's complaint alleged in
the alternative that Granite Street is either a county road or a
State highway, the judge concluded that, if it is a county road,
its title was transferred to the town by G. L. c. 34B, § 6 (d),
as amended by St. 2006, c. 336, § 4, which abolished county
government and transferred authority over county roads to local
towns. The judge further concluded that if Granite Street is a
State highway, and MassDOT has authority over the intersection
of Granite and Beach Streets, the Superior Court could not order
MassDOT to take the discretionary action of blocking that
1 The complaint also stated that the Superior Court "is legally empowered" to grant relief "[up to] and including" ordering revisions to the parking layout on Beach Street and ordering the town to better maintain Beach Street. However, the BBNC's petition to MassDOT did not seek changes to the parking or maintenance of Beach Street. The judge concluded that "the only remedial action [the BBNC] expressly sought was to discontinue the vehicular connection between Beach Street and Granite Street." The BBNC does not argue on appeal that the judge should have reached the issues of parking or maintenance on Beach Street, and so we do not consider those issues.
3 intersection, which would be an impermissible exercise of
mandamus power. Judgment entered, and this appeal followed.
Discussion. 1. G. L. c. 30A, § 4 relief. The BBNC argues
that the judge erred in ruling that the complaint failed to
state a claim upon which relief can be granted, Mass. R. Civ. P.
12 (b) (6). The BBNC contends that its complaint stated such a
claim with the allegation that MassDOT had violated G. L.
c. 30A, § 4, by failing to hold a hearing or take formal action
on the BBNC's petition.2
Section 4 permits "[a]ny interested person" to "petition an
agency requesting the adoption, amendment or repeal of any
regulation." G. L. c. 30A, § 4. The statute defines
"regulation" to "include[] . . . every rule, regulation,
standard or other requirement of general application . . .
adopted by an agency to implement or interpret the law enforced
or administered by it" (emphasis added). G. L. c. 30A, § 1 (5).
MassDOT's regulation promulgated to enforce § 4 requires that
the petition "must contain . . . the complete text of the
2 In a separate count of the complaint, the BBNC alleged that MassDOT violated G. L. c. 30A, § 4, by failing to promulgate a regulation prescribing the process for petitioning. As the BBNC acknowledges on appeal, however, MassDOT has in fact promulgated such a regulation at 700 Code Mass. Regs. § 2.02(4)(c) (2020).
4 proposed new regulation." 700 Code Mass. Regs. § 2.02(4)(c)
(2020).
The BBNC argues that its petition amounted to a request for
promulgation of regulations pursuant to § 4 because the petition
sought "a forum in which to be heard on [the BBNC's] arguments
about the need for changes to the intersection." We are not
persuaded. The change that the BBNC sought here -- the blocking
of a single intersection -- would not be a rule of general
application. See Construction Indus. of Massachusetts v.
Commissioner of Labor & Indus., 406 Mass. 162, 170-171 (1989)
(setting rate on each job project separately not rule of general
application, thus not regulation); Department of Pub. Health v.
Cumberland Cattle Co., 361 Mass. 817, 828 (1972) (agency's order
to remove cattle from dairy in response to particular violation
not regulation).
Further, the judge concluded that "neither BBNC's petition
nor its complaint advances any suggested regulatory enactment or
change." After careful review of both pleadings, we agree. The
BBNC never provided MassDOT with the text of any proposed
regulation. Contrary to the BBNC's argument, the request in its
petition to MassDOT for "a hearing . . . under . . . G. L.
c. 30A" did not suffice. That single reference to c. 30A,
5 without mention of § 4 or the text of any proposed regulation,
was not a request for the adoption of a regulation.
2.
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-574
BACK BEACH NEIGHBORS COMMITTEE
vs.
DEPARTMENT OF TRANSPORTATION.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, the Back Beach Neighbors Committee (BBNC),
appeals from the dismissal by a Superior Court judge of its
complaint that sought to require the defendant, the
Massachusetts Department of Transportation (MassDOT), to block
vehicular access between Granite Street and Beach Street in the
town of Rockport (town). As a matter of law, the authority to
grant the BBNC the relief it seeks does not lie with MassDOT;
further, if MassDOT did have that authority, it could not be
compelled to grant that relief. Accordingly, we affirm.
Background. We set forth the facts in the light most
favorable to the BBNC as gleaned from the complaint and from the BBNC's petition to MassDOT, which was incorporated within the
complaint.
The BBNC is an unincorporated association of neighbors and
abutters who own property on Beach Street or near Back Beach.
The BBNC is concerned that Beach Street is unsafe because of
issues including traffic. At its northern terminus, Beach
Street intersects with Granite Street. The BBNC's complaint
alleged, in the alternative, that Granite Street is either a
county road or a State highway.
The BBNC submitted to MassDOT a petition requesting that,
to limit traffic on Beach Street, MassDOT erect a barrier
blocking vehicular access between Beach Street and Granite
Street. The BBNC sought a hearing on its petition "either under
G. L. c. 82 or G. L. c. 30A." MassDOT took no official action
on the petition. A MassDOT official informed the BBNC by
telephone that MassDOT lacked statutory and regulatory authority
over Beach Street.
The BBNC filed the Superior Court complaint, alleging that
MassDOT had violated G. L. c. 30A, § 14 (7), by failing to act
on the BBNC's petition; violated G. L. c. 30A, § 4, by failing
to promulgate regulations prescribing the process of
petitioning; and violated its responsibility under G. L. c. 82,
§ 2, and G. L. c. 34B, § 6 (d), statutes pertaining to county
2 roads. The relief sought included that the Superior Court
should rule de novo on the BBNC's petition and order that
vehicular access be blocked between Beach Street and Granite
Street.1
MassDOT moved to dismiss the complaint pursuant to Mass.
R. Civ. P. 12 (b) (6). After a hearing, the judge allowed the
motion to dismiss. Noting that the BBNC's complaint alleged in
the alternative that Granite Street is either a county road or a
State highway, the judge concluded that, if it is a county road,
its title was transferred to the town by G. L. c. 34B, § 6 (d),
as amended by St. 2006, c. 336, § 4, which abolished county
government and transferred authority over county roads to local
towns. The judge further concluded that if Granite Street is a
State highway, and MassDOT has authority over the intersection
of Granite and Beach Streets, the Superior Court could not order
MassDOT to take the discretionary action of blocking that
1 The complaint also stated that the Superior Court "is legally empowered" to grant relief "[up to] and including" ordering revisions to the parking layout on Beach Street and ordering the town to better maintain Beach Street. However, the BBNC's petition to MassDOT did not seek changes to the parking or maintenance of Beach Street. The judge concluded that "the only remedial action [the BBNC] expressly sought was to discontinue the vehicular connection between Beach Street and Granite Street." The BBNC does not argue on appeal that the judge should have reached the issues of parking or maintenance on Beach Street, and so we do not consider those issues.
3 intersection, which would be an impermissible exercise of
mandamus power. Judgment entered, and this appeal followed.
Discussion. 1. G. L. c. 30A, § 4 relief. The BBNC argues
that the judge erred in ruling that the complaint failed to
state a claim upon which relief can be granted, Mass. R. Civ. P.
12 (b) (6). The BBNC contends that its complaint stated such a
claim with the allegation that MassDOT had violated G. L.
c. 30A, § 4, by failing to hold a hearing or take formal action
on the BBNC's petition.2
Section 4 permits "[a]ny interested person" to "petition an
agency requesting the adoption, amendment or repeal of any
regulation." G. L. c. 30A, § 4. The statute defines
"regulation" to "include[] . . . every rule, regulation,
standard or other requirement of general application . . .
adopted by an agency to implement or interpret the law enforced
or administered by it" (emphasis added). G. L. c. 30A, § 1 (5).
MassDOT's regulation promulgated to enforce § 4 requires that
the petition "must contain . . . the complete text of the
2 In a separate count of the complaint, the BBNC alleged that MassDOT violated G. L. c. 30A, § 4, by failing to promulgate a regulation prescribing the process for petitioning. As the BBNC acknowledges on appeal, however, MassDOT has in fact promulgated such a regulation at 700 Code Mass. Regs. § 2.02(4)(c) (2020).
4 proposed new regulation." 700 Code Mass. Regs. § 2.02(4)(c)
(2020).
The BBNC argues that its petition amounted to a request for
promulgation of regulations pursuant to § 4 because the petition
sought "a forum in which to be heard on [the BBNC's] arguments
about the need for changes to the intersection." We are not
persuaded. The change that the BBNC sought here -- the blocking
of a single intersection -- would not be a rule of general
application. See Construction Indus. of Massachusetts v.
Commissioner of Labor & Indus., 406 Mass. 162, 170-171 (1989)
(setting rate on each job project separately not rule of general
application, thus not regulation); Department of Pub. Health v.
Cumberland Cattle Co., 361 Mass. 817, 828 (1972) (agency's order
to remove cattle from dairy in response to particular violation
not regulation).
Further, the judge concluded that "neither BBNC's petition
nor its complaint advances any suggested regulatory enactment or
change." After careful review of both pleadings, we agree. The
BBNC never provided MassDOT with the text of any proposed
regulation. Contrary to the BBNC's argument, the request in its
petition to MassDOT for "a hearing . . . under . . . G. L.
c. 30A" did not suffice. That single reference to c. 30A,
5 without mention of § 4 or the text of any proposed regulation,
was not a request for the adoption of a regulation.
2. Mandamus relief. The BBNC argues that its complaint
also stated a claim for relief pursuant to G. L. c. 30A,
§ 14 (7), by seeking an order compelling MassDOT to block
vehicular access between Beach Street and Granite Street. We
agree with the judge that, assuming that MassDOT has authority
over Granite Street, an order compelling it to take the
discretionary action of blocking that intersection would be an
inappropriate exercise of mandamus power.
Section 14 provides that "[e]xcept so far as any provision
of law expressly precludes judicial review, any person . . .
aggrieved by a final decision of any agency in an adjudicatory
proceeding" may seek judicial review in the Superior Court,
which may grant relief including remanding the matter to the
agency for further proceedings "or compel[ling] any action
unlawfully withheld or unreasonably delayed." G. L. c. 30A,
§ 14 (7). The judge concluded that the BBNC's complaint had not
stated a claim under G. L. c. 30A, § 14, because authority over
Granite Street had been transferred to the town by G. L. c. 34B,
§ 6 (d), which included the authority previously vested in the
county under G. L. c. 82, § 2. Further, the judge reasoned,
even if MassDOT did have authority over Granite Street, the
6 BBNC's claim was essentially seeking mandamus relief, and
whether to block the intersection at Beach Street would be a
discretionary decision by the agency not enforceable by
mandamus.3
The BBNC argues that mandamus relief would be appropriate
here. We disagree. Mandamus relief "is not appropriate to
compel an official to perform a discretionary act." Padmanabhan
v. Executive Director of the Bd. of Registration in Med., 491
Mass. 1031, 1032-1033 (2023), citing Boston Med. Ctr. Corp. v.
Secretary of Executive Office of Health & Human Servs., 463
Mass. 447, 470 (2012). Rather, mandamus relief is appropriate
to require "a government official to perform a clear cut duty'"
(citation omitted). Mederi, Inc. v. Salem, 488 Mass. 60, 65
(2021). Mandamus relief "is extraordinary and may not be
granted except to prevent a failure of justice . . . where there
is no other adequate remedy" (quotation and citation omitted).
Padmanabhan, supra at 1032.
We agree with the judge that the BBNC's request for MassDOT
to block vehicular access between Beach Street and Granite
Street sought a "one-time exercise of MassDOT's discretionary
3 We do not reach the question whether Granite Street is a county road or a State highway, as it is unnecessary to our analysis.
7 authority." Mandamus relief would not be appropriate where
MassDOT either does not have the necessary authority to grant
relief or cannot be compelled to grant the specific relief
sought by the BBNC.
Judgment affirmed.
By the Court (Shin, Grant & Hershfang, JJ.4),
Clerk
Entered: December 15, 2025.
4 The panelists are listed in order of seniority.