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SJC-13845
HELEN BANEVICIUS, trustee,1 & others2 vs. TOWN OF BARNSTABLE & another.3
Barnstable. February 4, 2026. – May 20, 2026.
Present: Budd, C.J., Gaziano, Wendlandt, Georges, Dewar, & Wolohojian, JJ.
Real Property, Agricultural or horticultural use, Sale, Right of first refusal. Practice, Civil, Standing, Declaratory proceeding, Action in nature of mandamus, Summary judgment. Declaratory Relief. Mandamus. Notice. Municipal Corporations, Notice to municipality.
1 Of the Banevicius Revocable Living Trust.
2 Ronald F. Knight; Linda H. Knight; Robert A. LaBerge; Ellen T. LaBerge; Keith W. McAteer and Sheila D. McAteer, trustees of the Sheila D. McAteer 2018 Trust; John E. Murphy, Jr., and Nancy E. Murphy, trustees of the 2 Longfellow Drive Realty Trust; Hildegarde B.E. Paris and Andrea M. Goode, trustees of the Hildegarde B.E. Paris & Andrea M. Goode Revocable Trust; Matthew J. Dupuy; Cathleen Foley-Dupuy; Linda J. Powers; Craig Frank Valenti and Barbara Russell Valenti, trustees of the Craig F. and B.R. Valenti Joint Living Trust; Robert L. Ward and Carol M. Ward, trustees of the Robert L. & Carol M. Ward 2016 Living Trust; Amoret B. Zamarro; Paul A. Zamarro; and Friends of the Centerville Cranberry Bog Preservation, Inc.
3 Bog Partners LLC. 2
Civil action commenced in the Superior Court Department on July 13, 2022.
The case was heard by Michael K. Callan, J., and Thomas J. Perrino, J., on motions for summary judgment.
The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.
Charles M. Sabatt (Matthew J. Dupuy & Robert A. LaBerge also present) for the plaintiffs. Allison M. Cogliano, Assistant Town Attorney, for town of Barnstable. Matthew T. McLaughlin (Aaron F. Nadich also present) for Bog Partners LLC.
GAZIANO, J. This case arises from a dispute over the sale
of twenty-one acres of land located in Centerville, known
locally as the "Jenkins Bog" (bog). Susan L. Jenkins, in her
capacity as trustee of the Jenkins Nominee Trust, previously
held title to the bog. Since 1995, the land had been actively
farmed as a cranberry bog -- which the town of Barnstable (town)
recognized as a "horticultural use" for property tax purposes
pursuant to G. L. c. 61A, commonly referred to as the
Agricultural Classification Act. In March 2021, Jenkins
provided the town manager with notice pursuant to G. L. c. 61A,
§ 14, that she intended to sell the bog to Samuel Slater, who
planned to discontinue its horticultural use. However, Jenkins
did not provide notice to several other municipal entities as
required by the statute. See G. L. c. 61A, § 14, eighth par. 3
She sold the bog anyway, and transferred title to the bog to Bog
Partners LLC (Bog Partners), which Slater owns and manages.
After learning of the sale, the individual plaintiffs, who
own property abutting the bog, and a nonprofit corporation
formed to preserve the bog commenced an action in the Superior
Court against the town and Bog Partners.4 The plaintiffs sought
declaratory relief, as well as relief in the nature of mandamus,
arguing that the sale was invalid because Jenkins and Bog
Partners did not comply with G. L. c. 61A's notice requirements.
The town and Bog Partners each filed a motion for summary
judgment, contending that the plaintiffs lacked standing to
pursue their claims. Both motions were allowed, with two
different Superior Court judges concluding that the plaintiffs
lacked standing. The plaintiffs appealed, and we transferred
the appeal to this court on our own motion. We now affirm on
the grounds that the plaintiffs lack standing to seek a
declaratory judgment and that mandamus relief is improper.
Background. 1. Statutory framework. We begin with a
brief overview of the relevant provisions of G. L. c. 61A to
provide context for the factual background of this case. For
4 Jenkins was originally named as a defendant; however, the parties subsequently stipulated to dismissal, without prejudice, of the claim against her. 4
further discussion of G. L. c. 61A, see Sudbury v. Scott, 439
Mass. 288, 293-296 (2003).
General Laws c. 61A establishes property tax benefits for
owners of qualifying land used for agricultural or horticultural
purposes. In exchange for providing these benefits, the
municipality where the land is located receives "a first refusal
option to meet a bona fide offer to purchase the land," G. L.
c. 61A, § 14, twelfth par., if the owner intends to sell the
land for a residential, commercial, or industrial use.
Before selling land subject to G. L. c. 61A, the landowner
is required to provide notice of his or her intent to sell,
which must be sent "to the mayor and city council of a city, or
board of selectmen of a town, and in the case of either a city
or a town, to its board of assessors, to its planning board and
conservation commission, if any, and to the [S]tate forester."
G. L. c. 61A, § 14, eighth par. In the event that the
landowner's notice "does not contain all of the material
described [in G. L. c. 61A, § 14]," the municipality has thirty
days to "notify the landowner in writing that [the] notice is
insufficient and does not comply." G. L. c. 61A, § 14, eleventh
par. Otherwise, upon receiving proper notice, the municipality
has 120 days to exercise its first refusal option. G. L.
c. 61A, § 14, twelfth par. 5
2. Facts. We summarize the undisputed facts from the
summary judgment record, viewed in the light most favorable to
the plaintiffs, against whom summary judgment entered. See 81
Spooner Rd., LLC v. Zoning Bd. of Appeals of Brookline, 461
Mass. 692, 699 (2012).
Beginning in 1995, the trustee of the Jenkins Nominee Trust
held title to the bog, which is comprised of four parcels of
land spanning approximately twenty-one acres. Jenkins began to
serve as trustee of the Jenkins Nominee Trust in 2018. She
maintained and farmed the property as a cranberry bog, which was
deemed a horticultural use for purposes of G. L. c. 61A. The
town assessed taxes on the bog in accordance with its
horticultural use under G. L. c. 61A.
In February 2021, Jenkins entered into a purchase and sale
agreement to sell the bog to Slater. Slater owns and manages
Bog Partners, which he formed to "manage, develop, improve,
maintain, operate, lease, finance and refinance, sell, and
otherwise deal with certain real property and improvements."
On March 9, 2021, Jenkins's counsel sent a certified letter
to the town manager, Mark S. Ells, and town attorney, Karen L.
Nober. Enclosed with the letter was a copy of the purchase and
sale agreement, along with a "Notice of Intention to Sell and
Convert" (notice of intent), which indicated that Jenkins had
entered into the purchase and sale agreement to sell the bog to 6
Slater, who intended to discontinue the bog's horticultural use
and to convert the bog for residential use. The letter did not
state whether notice was also sent to the town council, board of
assessors, planning board, conservation commission (commission),
or State forester. Ells responded to the letter on April 1,
2021, stating that "[a]fter internal discussion and review," the
town had decided not to exercise its first refusal option to
purchase the bog under G. L. c. 61A and approved of the bog's
sale.
On July 14, 2021, Jenkins executed a deed conveying title
to the bog to Bog Partners. Bog Partners then filed a request
for determination of applicability with the commission, asking
whether the erection of a fence on the bog would be subject to
the Wetlands Protection Act, G. L. c. 131, § 40. Notice of this
request was provided to owners of real property located within
one hundred feet of the proposed fence, including many of the
individual plaintiffs. This was the first time the individual
plaintiffs learned that Jenkins had conveyed the bog to Bog
Partners.
Plaintiff Ellen T. LaBerge made a public records request to
the town in August 2021, seeking the notice of intent that
Jenkins should have sent to the commission pursuant to G. L.
c. 61A. The commission responded that it "[did] not have a copy
of the document." Following the commission's response, LaBerge 7
made another public records request to the town, seeking
documents submitted to the town in connection with the proposed
sale of the bog. The town's response included a copy of the
March 9, 2021, letter and notice of intent sent to Ells from
Jenkins's counsel.
Several individual plaintiffs attended two public meetings
with town officials in October 2021 regarding the bog's sale.
At the second meeting, Nober acknowledged that Jenkins had not
strictly complied with G. L. c. 61A's notice provisions. Nober
agreed to inform Jenkins and Bog Partners that the transaction
would need to be renoticed to comply with those provisions.
In November 2021, Nober and Jenkins's counsel exchanged
letters concerning the notice issue. Nober first sent a letter
to Jenkins's counsel, advising that Jenkins had not complied
with "the notice requirements of Chapter 61A" and requesting
that Jenkins comply. Jenkins's counsel responded, noting that
the town had not, within thirty days of receiving the March 9
notice, notified Jenkins in writing that the notice was
insufficient as required by G. L. c. 61A. Therefore, with
Jenkins having completed the sale in reliance on the fact that
the town did not timely object, her counsel contended that the
notice requirements were "of no further consequence or effect."
In her reply, Nober maintained that the thirty-day deadline
under G. L. c. 61A, § 14, eleventh par., was inapplicable, as 8
the issue was not that the content of the March 9 notice was
deficient, but rather that the notice was not sent to town
council, the board of assessors, the planning board, or the
commission. Further, Nober contended that because Jenkins did
not comply with G. L. c. 61A's notice requirement, Bog
Partners's title was "defective and defeasible." Accordingly,
Nober renewed the town's request for Jenkins to "comply with
[G. L. c. 61A's notice] requirements." Jenkins did not issue
any notice to the municipal entities as requested.
In December 2021, some of the individual plaintiffs and
other nonparties formed the nonprofit corporation Friends of the
Centerville Cranberry Bog Preservation, Inc. (Friends
nonprofit). The stated purpose of the Friends nonprofit is to
"preserve, protect, and maintain, . . . the 'Jenkins Bog' . . .
as an accessible, natural open space and resource for public
recreation, education, and enjoyment and for the benefit of
indigenous wildlife and vegetation."
In May 2022, officers of the Friends nonprofit and two of
the individual plaintiffs met with Ells, Nober, and the town's
senior counsel to discuss the sale of the bog. The town's
senior counsel indicated that the town would not support
pursuing the matter further unless the Friends nonprofit could
confirm that sufficient funds were available to purchase the
bog. The following week, the Friends nonprofit and the 9
Barnstable Land Trust, a private nonprofit organization
interested in acquiring the bog for open space protection and
wetland restoration, sent letters assuring the town that
sufficient funds were available to purchase the bog. However,
the town took no further action with respect to the bog.
3. Procedural history. On July 13, 2022, the plaintiffs
commenced an action against the town, Jenkins, and Bog Partners
in the Superior Court. The plaintiffs amended their complaint
on September 1, 2022. In their amended complaint, the
plaintiffs sought a judgment declaring that the sale of the bog
was invalid because Jenkins had failed to comply with G. L.
c. 61A, § 14, and that title to the bog must therefore vest in
Jenkins. Additionally, the plaintiffs sought relief in the
nature of mandamus; specifically, an order directing the town to
require Jenkins and Bog Partners to "compl[y] strictly with the
notice provisions set forth in [G. L. c.] 61A, § 14."
In May 2023, the town moved for summary judgment, arguing
that the plaintiffs lacked standing to pursue their claims and
that, as to the claim for mandamus relief, the town could not be
directed to undertake a different act from what it had already
taken. Two months later, Bog Partners moved for summary
judgment, also on the basis that the plaintiffs lacked standing.
On August 14, 2023, a Superior Court judge allowed the
town's summary judgment motion, reasoning that the plaintiffs 10
lacked standing. For the same reason, a different Superior
Court judge allowed Bog Partners's motion on January 10, 2024.
Judgments were entered in favor of the town and Bog Partners as
to the respective claims against them. The plaintiffs timely
appealed, and we transferred the appeal to this court on our own
motion.
Discussion. We review decisions granting motions for
summary judgment de novo. See 81 Spooner Rd., LLC, 461 Mass. at
699. "Viewing the evidence in the light most favorable to the
party against whom summary judgment entered, [s]ummary judgment
is appropriate where there is no material issue of fact in
dispute and the moving party is entitled to judgment as a matter
of law" (quotations and citations omitted). Metcalf v. BSC
Group, Inc., 492 Mass. 676, 681 (2023). See Mass. R. Civ.
P. 56 (c), as amended, 436 Mass. 1404 (2002).
This appeal raises two issues. Specifically, we must
determine (1) whether the plaintiffs have standing to assert
their claim under the declaratory judgment statute, G. L.
c. 231A, and (2) whether the plaintiffs' claim for relief in the
nature of mandamus under G. L. c. 249, § 5, is proper. We
address each issue in turn.
1. Declaratory judgment. "Although the standing
requirements under G. L. c. 231A should be liberally construed,
there are limits to the matters that can be heard in an action 11
for a declaratory judgment." Enos v. Secretary of Envtl.
Affairs, 432 Mass. 132, 141 (2000). The declaratory judgment
statute "does not provide an independent statutory basis for
standing" (citation omitted). Sudbury v. Massachusetts Bay
Transp. Auth., 485 Mass. 774, 779 (2020). Instead, a plaintiff
has standing under G. L. c. 231A where the defendant has
"violated some duty owed to the plaintiff" (citation omitted),
Enos, supra at 135, and where the plaintiff has alleged an
injury "within the area of concern of the statute or regulatory
scheme under which the injurious action has occurred" (citation
omitted), Sullivan v. Chief Justice for Admin. & Mgt. of the
Trial Court, 448 Mass. 15, 21-22 (2006). See Enos, supra
(plaintiffs' injuries must be within statute's "zone of
interests" [citation omitted]). As we outlined in Enos, whether
a plaintiff's alleged injury falls within a statute's area of
concern depends on a number of factors, including "the language
of the statute [at] issue; the Legislature's intent and purpose
in enacting the statute; the nature of the administrative
scheme; decisions on standing; any adverse effects that might
occur, if standing is recognized; and the availability of other,
more definite, remedies to the plaintiffs." Id. at 135–136.
Here, the plaintiffs allege several injuries.
Specifically, they claim that conversion of the bog for
residential use will have an adverse impact on "the aesthetic 12
views, presence of wildlife, and peace and quiet afforded by the
[b]og." Additionally, they claim conversion will diminish the
plaintiffs' "enjoyment of their own property, as well as its
economic value." For the reasons that follow, we conclude that
these alleged injuries are insufficient to confer standing.
In determining whether the plaintiffs' injuries fall within
G. L. c. 61A's zone of interests, we start with the first factor
articulated in Enos, 432 Mass. at 135: the statute's language.
See Ten Persons of the Commonwealth v. Fellsway Dev. LLC, 460
Mass. 366, 381 (2011). Under G. L. c. 61A, the parties entitled
to receive a notice of intent are expressly limited to certain
municipal officials and entities -- not owners of property
abutting the land at issue or any other private parties claiming
an alleged interest in that land. See G. L. c. 61A, § 14,
eighth par. (requiring notice "to the mayor and city council of
a city, or board of selectmen of a town, and in the case of
either a city or a town, to its board of assessors, to its
planning board and conservation commission, if any, and to the
[S]tate forester"). Cf. Boston v. Rockland Trust Co., 391 Mass.
48, 56-57 (1984) (secured creditor lacked standing to seek
declaratory relief concerning city's seizure of property where
no preseizure notice to secured creditor was required under
statute governing seizure). Further, nowhere does G. L. c. 61A
expressly provide the plaintiffs with a private right of action 13
to challenge alleged violations of the notice requirements under
G. L. c. 61A, § 14.5 Although declaratory relief may be sought
"even if the relevant statute does not provide a private right
of action," a plaintiff may not seek such relief "to effect an
'end run' around the absence of a private right of action where
the Legislature intended to foreclose certain remedies."
Service Employees Int'l Union, Local 509 v. Department of Mental
Health, 469 Mass. 323, 335-336 (2014) (Service Employees).
Beyond the statutory language, we also look to G. L.
c. 61A's history and purpose to discern the statute's area of
concern. See Massachusetts State Auto. Dealers Ass'n v. Tesla
Motors MA, Inc., 469 Mass. 675, 684 n.14 (2014).
As we discussed in Scott, 439 Mass. at 299, because "[t]he
Legislature was concerned with the rapidly decreasing number of
farms in the Commonwealth during the 1940's and 1950's," it
commissioned several studies to "explore ways to reverse this
trend, including the assessment and taxation of agricultural
lands at agricultural value." Each study found that "real
estate taxation contributed to the demise of farms, and that it
5 Not only is an express private right of action absent from the statute, but we also do not infer one "in the absence of some indication from the Legislature supporting such an inference" (citation omitted). Boston Med. Ctr. Corp. v. Secretary of the Executive Office of Health & Human Servs., 463 Mass. 447, 454 (2012). 14
was in the public interest to preserve and protect the
Commonwealth's remaining farmland." Id. at 299-300.
As a result, G. L. c. 61A was enacted in 1973, see
St. 1973, c. 1118, § 1, with the purpose of "preserv[ing] and
protect[ing]" agricultural and horticultural land through
municipal-level tax relief, Scott, 439 Mass. at 301. The
municipal notice required for sale of such land ultimately
serves this same purpose; specifically, it allows the "city or
town" an opportunity to exercise its first refusal option, G. L.
c. 61A, § 14, twelfth par., which in turn is meant to help
"preserve and protect the agricultural [or horticultural] use of
land," Scott, supra. In other words, the notice provision is
designed to protect the interests of the municipality where the
land is located -- not the interests of abutters or other
private parties.
And further, the municipal interest animating this notice
provision is the preservation of agricultural or horticultural
land, not the preservation of abutting property value or
interests. Cf. Standerwick v. Zoning Bd. of Appeals of Andover,
447 Mass. 20, 28-32 (2006) (claimed diminution in abutting
property value was insufficient to confer standing under G. L.
c. 40B, which was designed to promote affordable housing). Nor
does that municipal interest necessarily encompass broader
concerns regarding the nuisances, decreased recreational 15
activities, or environmental threats alleged by the plaintiffs
in this case. Cf. Reilly v. Hopedale, 102 Mass. App. Ct. 367,
379 (2023) (town citizens' generalized interest in "protecting
the environment" was not enough to confer standing under G. L.
c. 61, which was designed to preserve and maintain forest land
through reduced taxation); Hickey v. Conservation Comm'n of
Dennis, 93 Mass. App. Ct. 655, 657-658 (2018) (plaintiffs'
concern that proposed walkway would increase "offensive"
recreational activity did not fall within interests protected by
local wetlands bylaw).
Next, we consider case law on standing. See Enos, 432
Mass. at 135. Although we have not previously addressed the
issue of standing to seek declaratory relief where an alleged
violation of G. L. c. 61A has occurred, the Appeals Court's
decision in Reilly is informative in this case. In Reilly, 102
Mass. App. Ct. at 379, the Appeals Court considered whether
taxpayer plaintiffs had standing to pursue declaratory relief
under a statute analogous to G. L. c. 61A -- G. L. c. 61, which
establishes a "voluntary tax program by which landowners can
agree to preserve and maintain forest land in order to receive
advantageous tax treatment, in exchange for which the town
receives certain rights should the land be transferred." Among
these municipal rights, the town receives a first refusal option
where an owner of forest land seeks to sell it for another use. 16
Id. at 370. The plaintiffs in Reilly sought a declaration that
a town's agreement to waive its first refusal option was
invalid. Id. at 369. After considering the legislative intent
behind G. L. c. 61 -- "promoting and maintaining forest land" --
the Appeals Court determined that the plaintiff taxpayers lacked
standing to pursue such a declaratory judgment. Id. at 379.
While the plaintiffs in Reilly were not identified as
abutters, the Appeals Court's reasoning applies equally here.
That is, just as "[i]ndividual taxpayers whose land is not
subject to G. L. c. 61 have been given no rights under [that]
statutory scheme," Reilly, 102 Mass. App. Ct. at 379, abutters
have similarly been given no rights under G. L. c. 61A.
Accordingly, and particularly given the similarities between the
two statutory schemes, we find Reilly to be persuasive.
Finally, we consider any adverse effects that might occur
if standing is recognized. See Enos, 432 Mass. at 135-136.
This case presents one of the same concerns we expressed in
Enos: a holding that the plaintiffs have standing here could
turn G. L. c. 231A into a "roving entitlement" for abutters to
bring suit, allowing any sale of land under G. L. c. 61A to be
"unnecessarily delayed by lawsuits brought by landowners near
the project seeking redress for injuries not within [G. L.
c. 61A's] ambit." Id. at 141-142. 17
In light of the foregoing, we need not consider the
availability of other remedies to the plaintiffs. See Enos, 432
Mass. at 135-136. Even to the extent that other remedies are
unavailable, we are satisfied that the plaintiffs' claimed
injuries nonetheless fall beyond G. L. c. 61A's zone of
interests. See Revere v. Massachusetts Gaming Comm'n, 476 Mass.
591, 608 (2017) (concluding party lacked standing to pursue
declaratory judgment claims, notwithstanding that party was
effectively left with no avenue to challenge decision).
Accordingly, we conclude that the plaintiffs lack standing to
seek declaratory relief.6
The plaintiffs contend that this conclusion effectively
leaves "no one" with standing to enforce the notice requirements
under G. L. c. 61A.7 They cite Service Employees, 469 Mass. at
6 This is true not only for the individual plaintiffs, but also for the Friends nonprofit. In order to have standing to bring suit on behalf of its members, an association must establish that "its members would otherwise have standing to sue in their own right" (citation omitted). Animal Legal Defense Fund, Inc. v. Fisheries & Wildlife Bd., 416 Mass. 635, 638 n.4 (1993). The Friends nonprofit's members include individual plaintiffs who, as discussed, do not have standing to pursue their claims. The Friends nonprofit does not explain how its nonparty members have standing, nor does it contend that it has direct standing. Contrast Service Employees, 469 Mass. at 337– 338 & n.13 (holding that union had direct standing to pursue declaratory relief while declining to decide whether union had associational standing on behalf of its members).
7 The individual plaintiffs also contend that a rebuttable presumption of standing should exist by virtue of their status as abutters, much like abutters under the Zoning Act, G. L. 18
337-338, where we concluded that a plaintiff had standing to
pursue declaratory relief because, in part, "the Legislature
could not have intended that the [law at issue] effectively be
unenforceable." But that decision relied on considerations not
present here. Service Employees concerned whether an employee
union had standing to pursue a declaratory judgment challenging
an agency's alleged violation of the so-called Pacheco Law,
G. L. c. 7, §§ 52-55. Id. at 324. Examining the Pacheco Law's
text and purpose, id. at 329-330, we found that the statute
conferred "specific, substantive rights on employee
organizations," id. at 330. We accordingly determined that the
plaintiff union had standing to enforce these rights, where the
"absence of declaratory relief would prevent the Pacheco Law
from being administered properly and thus contravene the
Legislature's intent." Id. at 336. By contrast, a
determination that the plaintiffs lack standing here would not
c. 40A. See, e.g., Stone v. Zoning Bd. of Appeals of Northborough, 496 Mass. 366, 374 (2025); Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719, 721 (1996). But the presumption of abutter standing in zoning actions is drawn from the specific text of G. L. c. 40A, § 15, which provides that "parties in interest" must be sent notice of hearings before and decisions by a zoning board of appeals. In turn, G. L. c. 40A, § 11, defines "[p]arties in interest" to include abutters. As we explained in Watros v. Greater Lynn Mental Health & Retardation Ass'n, 421 Mass. 106, 111 (1995), because abutters are therefore entitled to notice under these sections of the Zoning Act, they are presumed to have standing as persons "aggrieved" by a board's decision under G. L. c. 40A, § 17. 19
foreclose G. L. c. 61A from being administered properly -- the
town could still administer the law by requiring compliance with
the notice provisions of G. L. c. 61A, § 14. We therefore
conclude that the plaintiffs lack standing to pursue a
declaratory judgment.
2. Mandamus relief. Next, we consider whether relief in
the nature of mandamus under G. L. c. 249, § 5, is proper.8
General Laws c. 249, § 5, provides, in part, that a party may
bring a civil action in the Superior Court "to obtain relief
formerly available by writ of mandamus." Relief in the nature
of mandamus may be used "to compel a public official to perform
an act which the official has a legal duty to perform" (citation
omitted). Ardon v. Committee for Pub. Counsel Servs., 464 Mass.
1001, 1001 (2012), cert. denied, 571 U.S. 872 (2013). But
mandamus is an "extraordinary remedy," Anzalone v.
Administrative Office of the Trial Court, 457 Mass. 647, 655
(2010), and "is not appropriate where the acts in question are
discretionary rather than ministerial," Boxford v. Massachusetts
Highway Dep't, 458 Mass. 596, 606 (2010).
8 Because we conclude that relief in the nature of mandamus is not available here, we do not reach the plaintiffs' argument that they had standing to bring their claim under the "public right" doctrine. See Bombardieri v. Registrar of Motor Vehicles, 426 Mass. 371, 377 n.11 (1998). 20
Here, the plaintiffs seek a court order directing the town
to require Jenkins to provide proper notice to all municipal
entities listed in G. L. c. 61A, § 14, eighth par. The
plaintiffs argue that mandamus relief is appropriate because the
town had a mandatory, nondiscretionary duty to alert Jenkins of
deficiencies in her March 9, 2021, notice. In support, they
point to G. L. c. 61A, § 14, eleventh par., which provides that
a municipality "shall" provide written notice of such
deficiencies to a landowner.
Assuming, without deciding, that a municipality is
obligated to "notify [a] landowner in writing that notice is
insufficient and does not comply," G. L. c. 61A, § 14, eleventh
par., the town fulfilled that obligation. It is undisputed
that, in November 2021, the town sent Jenkins's counsel two
letters advising that the notice Jenkins provided on March 9,
2021, did not comply with G. L. c. 61A, § 14, and asking Jenkins
to provide proper notice to all municipal entities. Jenkins
received and responded to the town's first letter, but
ultimately did not send any further notice.
Because the town already alerted Jenkins of the deficient
notice, relief in the nature of mandamus would be improper here.9
9 On the issue of mandamus relief, the motion judges granted summary judgment on different grounds, which we do not reach. However, we are free to affirm on this alternate basis. See, 21
"Mandamus is not an appropriate remedy to obtain a review of the
decision of public officers who have acted and to command them
to act in a new and different manner" (citation omitted).
Boston Med. Ctr. Corp. v. Secretary of the Executive Office of
Health & Human Servs., 463 Mass. 447, 470 (2012). See Rines v.
Justices of the Superior Court, 330 Mass. 368, 373 (1953)
("mandamus is a remedy for inaction and not available where
action has already been taken").
The plaintiffs argue that since Jenkins never issued
compliant notice to all municipal entities, the town was
required to take additional steps to ensure Jenkins did so.
However, we see nothing in the statute's language requiring the
town to take steps beyond "notify[ing] the landowner in writing
that notice is insufficient and does not comply." G. L. c. 61A,
§ 14, eleventh par. And we will not impose additional
requirements on the town beyond those written in the statute.
See Sterilite Corp. v. Continental Cas. Co., 397 Mass. 837, 839
n.3 (1986) (court will construe language of statute as written
and will not add statutory provision Legislature did not see fit
to include). Thus, any further steps the town could have taken
e.g., Morton St. LLC v. Sheriff of Suffolk County, 453 Mass. 485, 490 (2009). 22
to require Jenkins to provide compliant notice were
discretionary -- not mandatory. See Boxford, 458 Mass. at 606
("Relief in the nature of mandamus is not appropriate where the
acts in question are discretionary . . ."). Accordingly, relief
in the nature of mandamus does not lie here.
For the foregoing reasons, the defendants' motions for
summary judgment were properly allowed.
Judgments affirmed.