Holland Brands SB, LLC v. Board of Appeal of Boston

• Court: Massachusetts Appeals Court
• Decided: February 16, 2024
• Docket: AC 23-P-93
• Status: Published

Opinion

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us

23-P-93 Appeals Court

HOLLAND BRANDS SB, LLC vs. BOARD OF APPEAL OF BOSTON.

No. 23-P-93.

Suffolk. October 12, 2023. – February 16, 2024.

Present: Neyman, Henry, & Ditkoff, JJ.

Practice, Civil, Intervention, Zoning appeal. Zoning, Appeal, Person aggrieved. Boston. Municipal Corporations, Marijuana.

Civil action commenced in the Superior Court Department on August 6, 2021.

A pretrial motion to intervene was heard by Janet L. Sanders, J.; the case was heard by Jackie A. Cowin, J., and a postjudgment motion to intervene also was heard by her.

Matthew Dillon Rogers for Kate Gutierrez & others. Dennis E. McKenna for the plaintiff. Katherine Jones, Assistant Corporation Counsel, for the defendant, was present but did not argue and joined in the brief of the plaintiff.

DITKOFF, J. Holland Brands SB, LLC (Holland Brands) filed

a complaint in Superior Court challenging the denial by the

board of appeal of Boston (board) of two permits it needed to 2

operate a marijuana shop in the South Boston section of Boston.

Holland Brands was ultimately successful, and a judge ordered

the board to issue the permits. The prospective interveners,

Kate Gutierrez, Helen Chan, David Schramm, and Danah Al-Husaini,

appeal from Superior Court orders denying their pretrial and

postjudgment motions to intervene in this action. We conclude

that we lack jurisdiction over their appeal from the denial of

the pretrial motion to intervene because such an appeal must be

taken within thirty days of the denial of the motion; the movant

cannot wait until after final judgment. We discern no abuse of

discretion in the judge's conclusion that the second motion to

intervene was untimely, where its basis became apparent after

the denial of their first motion to intervene but before

judgment, and the prospective interveners could have protected

their rights by appealing the board's issuance of the permits as

ordered by the judgment. Accordingly, we affirm.

1. Background. In November 2019, Holland Brands submitted

an application to the board for conditional use permits to

operate a marijuana shop in South Boston.1 The prospective

interveners opposed the project before the board. On July 21,

2021, the board denied Holland Brands's application. In August

1 Holland Brands obtained the approval of the Boston Cannabis Board and entered into a host community agreement with the city. 3

2021, Holland Brands appealed to the Superior Court pursuant to

the Boston zoning enabling act, St. 1956, c. 665, § 11.

A little more than two months after Holland Brands filed

its complaint, the prospective interveners moved to intervene,

both as of right and permissively, arguing that their "concerns

will not be adequately represented by the [board],"2 and that

they oppose the project "because it places a high-volume

supermarket-style retail shop on an already-congested street in

one of the most congested neighborhoods in America," creating

noise and "dangerous conditions to vehicles and pedestrians."

Holland Brands and the board opposed, arguing that the

prospective interveners were not "persons aggrieved" by the

board's decision to deny the permits, the interests of the

prospective interveners and the board were aligned, and the

prospective interveners failed to submit a proposed pleading as

required pursuant to Mass. R. Civ. P. 24 (c), 365 Mass. 769

(1974). At the hearing, counsel for Holland Brands stated, "At

most your Honor could remand it back to the [board] that the

[board] is going to make a decision if we ever got there, your

Honor." After the hearing, the motion judge denied the motion

"for reasons stated in opposition."

2 The prospective interveners supported this statement with unsubstantiated conflict of interest allegations that are not pertinent to our decision. 4

The board litigated the case in Superior Court. Before the

trial, the board objected to six of Holland Brands's seven

potential witnesses and briefed its position in a pretrial

memorandum. At trial, the board cross-examined all of Holland

Brands's witnesses and called a local resident as a witness to

testify to the prior use of the property at issue.

The trial judge (who was not the motion judge who ruled on

the first motion to intervene) issued a ruling on August 2,

2022. The judge found that the board's decision was legally

untenable because there were no facts provided to support it.

The judge further found that the facts established at trial

showed that Holland Brands's "proposal meets the criteria set

forth for a conditional use permit" because the evidence showed

that the proposed dispensary "will not generate any notable

increase in traffic or crime," has "an adequate security plan in

place . . . which will likely increase safety in the area,"

"will improve the aesthetics," has adequate parking, and "is

surrounded by industrial and commercial uses on three sides."

The trial judge also found that the board's approval of "other

locations that are similarly close to residential neighborhoods,

and/or lack the amenities of the South Boston site" demonstrate

that the board's decision denying these permits was pretextual.

The judge ordered, "FINAL JUDGMENT is to enter in favor of

the plaintiff, ANNULLING the decision of the Board denying its 5

applications for conditional use permits to operate a retail

cannabis facility at the Property, and provide associated

parking. The requested permits shall issue."

On August 19, 2022, the prospective interveners moved to

intervene again, both as of right and permissively, intending to

appeal the judgment. After a hearing, the trial judge denied

the second motion to intervene. Among other reasons, the trial

judge found that the motion was untimely as "[t]here's been no

surprising turn of events here." The prospective interveners

filed a notice of appeal, purporting to appeal the denial of

both motions to intervene. This appeal followed.3

2. First motion to intervene. "An 'interlocutory order

denying intervention as of right under Mass. R. Civ. P. 24 (a),

365 Mass. 769 (1974), is immediately appealable.'" Reznik v.

Garaffo, 466 Mass. 1034, 1035 (2013), quoting Care & Protection

of Richard, 456 Mass. 1002, 1002 (2010). "At least where there

is also an appeal from a denial of a claim of intervention as of

right, we will also consider the denial of a request for

permissive intervention." Commonwealth v. Fremont Inv. & Loan,

459 Mass. 209, 210 n.4 (2011), quoting Massachusetts Fed'n of

3 The board did not appeal the Superior Court judgment. The prospective interveners filed a notice of appeal of the underlying judgment, which was struck solely because the motion to intervene had been denied. 6

Teachers, AFT, AFL-CIO v. School Comm. of Chelsea, 409 Mass.

203, 204-205 (1991). Accord Care & Protection of Rae, 454 Mass.

1019, 1019-1020 (2009) (where motion to intervene argues

permissive intervention and interventions as of right, denial

immediately appealable).4 "Logic dictates this result: the

denial of leave to intervene functions as a final order, because

it eliminates the intervener from the litigation."

Massachusetts Fed'n of Teachers, supra at 205.

"In interpreting this rule, we look for guidance to

decisions of Federal courts concerning Fed. R. Civ. P. 24(a), as

the Massachusetts rule on intervention is nearly identical to

this analogous rule." Beacon Residential Mgt., LP v. R.P., 477

Mass. 749, 753 (2017). Accord Hiyab, Inc. v. Ocean Petroleum,

LLC, 183 Md. App. 1, 11 (2008). Thus informed, we agree with

what appears to be the unanimous view that, "[o]nce the [trial]

court enters the order denying intervention, a party has 30 days

to file a notice of appeal. [The party] 'may not await final

judgment in the underlying action' to do so" (citations

omitted). Sharp Farms v. Speaks, 917 F.3d 276, 289 (4th Cir.

2019). "The appeal cannot be kept in reserve; it must be taken

within thirty days of the entry of the order, or not at all."

4 It is unsettled (perhaps because most motions to intervene request intervention both as of right and permissively) whether the denial of a motion for permissive intervention only would be immediately appealable. 7

Credit Francais Int'l, S.A. v. Bio-Vita, Ltd., 78 F.3d 698, 703

(1st Cir. 1996). Accord Hutchinson v. Pfeil, 211 F.3d 515, 518

(10th Cir.), cert. denied, 531 U.S. 959 (2000); United States v.

Milwaukee, 144 F.3d 524, 528 (7th Cir. 1998); United States

Envtl. Protection Agency v. Green Forest, 921 F.2d 1394, 1401

(8th Cir. 1990), cert. denied sub nom. Work v. Tyson Foods,

Inc., 502 U.S. 956 (1991); Hunter v. Department of Air Force

Agency, 846 F.2d 1314, 1317 (11th Cir. 1988); Hiyab, Inc., supra

at 11-12; In re Barnes Found., 582 Pa. 370, 374 (2005).5

This rule is merely a corollary to the requirement that all

motions to intervene be timely. See Mass. R. Civ. 24 (a), (b),

365 Mass. 769 (1974). It would make little sense to require

prospective interveners to file a motion to intervene in the

trial court in a timely manner and then allow them to sit back

5 One exception applies in the unusual situation where an existing party moves to intervene in a different capacity. The general rule is based on the fact that "[s]uch a proposed intervenor's future involvement in the lawsuit, whether at the trial or appellate level, is foreclosed entirely by the denial of intervention." Carlough v. Amchem Prods., 5 F.3d 707, 712 (3d Cir. 1993). Accordingly, "anyone who is involved in an action sufficiently to have a right of appeal from its final disposition does not have an immediate right of appeal from a denial or partial denial of intervention." Id. at 712, citing Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370, 377-378 (1987). Cf. Sierra Club v. San Antonio, 115 F.3d 311, 314 (5th Cir. 1997) (denial of motion to intervene by one State agency immediately appealable even if other State agencies are allowed to intervene). 8

and watch the proceedings unfold, perhaps for years, without

pursuing their appellate remedy.6

"In a civil case, unless otherwise provided by statute, the

notice of appeal required by Rule 3 shall be filed with the

clerk of the lower court within [thirty] days of the date of the

entry of the judgment, decree, appealable order, or adjudication

appealed from." Mass. R. A. P. 4 (a) (1), as appearing in 481

Mass. 1606 (2019). "A timely notice of appeal is a

jurisdictional prerequisite to our authority to consider any

matter on appeal." Wells Fargo Bank, N.A. v. Sutton, 103 Mass.

App. Ct. 148, 152 (2023), quoting DeLucia v. Kfoury, 93 Mass.

App. Ct. 166, 170 (2018). Here, the notice of appeal

challenging the denial of the motions to intervene was filed

more than nine months after the denial of the first motion to

intervene was docketed, rendering it inoperable as to the first

motion to intervene. Accordingly, we lack jurisdiction to

review the denial of the first motion to intervene.

3. Second motion to intervene. "Upon timely application

anyone shall be permitted to intervene in an action . . . when

the applicant claims an interest relating to the property or

6 Frostar Corp. v. Malloy, 77 Mass. App. Ct. 705 (2010), is not to the contrary. There the motion to intervene was first raised at the start of the trial. Id. at 708-709. Accordingly, as a review of the record in that case reveals, the prospective interveners' notice of appeal, filed after final judgment, was filed within thirty days of the denial of intervention. 9

transaction which is the subject of the action and he is so

situated that the disposition of the action may as a practical

matter impair or impede his ability to protect that interest,

unless the applicant's interest is adequately represented by

existing parties." Mass. R. Civ. P. 24 (a), 365 Mass. 769

(1974). Permissive intervention also requires a timely motion.

See Mass. R. Civ. P. 24 (b), 365 Mass. 769 (1974) ("Upon timely

application anyone may be permitted to intervene in an action

. . . when an applicant's claim or defense and the main action

have a question of law or fact in common" [emphasis added]).7

"The motion [to intervene] shall state the grounds therefor and

shall be accompanied by a pleading setting forth the claim or

defense for which intervention is sought." Mass. R. Civ. P.

24 (c), 365 Mass. 769 (1974). "A judge has discretion in

determining whether an intervening party has demonstrated facts

that entitle him or her to intervention as of right, and we

accordingly review the judge's factual findings for clear

error." Galbi v. Cellco Partnership, 101 Mass. App. Ct. 260,

7 The Boston zoning act grants "[a]ny person aggrieved by a decision" of the board the right to "appeal to the [Suffolk] superior court [or Boston housing court]." St. 1956, c. 665, § 11. The prospective interveners argue that this statute entitles them to intervene in this action because they were "aggrieved" when the board decided not to appeal the Superior Court judgment. A "decision" of the board for the purposes of the Boston zoning act does not include choices made as part of its litigation strategy. 10

262 (2022), quoting Fremont Inv. & Loan, 459 Mass. at 217. "It

is only after the subsidiary facts have been determined that an

appellate court then determines as a matter of law whether the

circumstances are sufficient to meet the requirements of

intervention as of right." Reilly v. Hopedale, 102 Mass. App.

Ct. 367, 384 (2023). Here, the trial judge acted within her

discretion in concluding that the second motion to intervene was

untimely.

A judge considering the timeliness of a motion to intervene

should consider "the totality of the circumstances," but "'the

length of time that the putative intervenor knew or reasonably

should have known that his interest was imperilled before he

deigned to seek intervention' is 'the most important factor.'"

Galbi, 101 Mass. App. Ct. at 264, quoting In re Efron, 746 F.3d

30, 35 (1st Cir. 2014). "[P]ostjudgment motions to intervene,

whether as of right or permissive, are seldom timely." Johnson

Turf & Golf Mgt., Inc. v. Beverly, 60 Mass. App. Ct. 386, 389

(2004), quoting Bolden v. O'Connor Café of Worcester, Inc., 50

Mass. App. Ct. 56, 61 (2000). Nonetheless, they may be timely

where "the underlying action takes an unexpected turn." Johnson

Turf & Golf Mgt., Inc., supra at 390, quoting Butts v Zoning Bd.

of Appeals of Falmouth, 18 Mass. App. Ct. 249, 254 (1984).

As mentioned, a motion to intervene must be "accompanied by

a pleading setting forth the claim or defense for which 11

intervention is sought." Mass. R. Civ. P. 24 (c). Here, the

only accompanying pleading was a notice of appeal. The

prospective interveners, however, do not identify any legal

error in the Superior Court judge's trial judgment that they

intend to raise on appeal. See Bolden, 50 Mass. App. Ct. at 68-

69 (affirming denial of postjudgment intervention as of right

where prospective intervener's "argument is notably vague and

skimpy on the details of the appellate issues it wishes to

pursue, suggesting only that they involve evidentiary errors and

insufficiency of the evidence as to a key element of the tort").

Rather, they request a new trial because, they claim, the board

"proceeded at trial with a lack of diligence." They posit that

they could receive a new trial by intervening and then appealing

the judgment on the ground that they could present a stronger

case at a new trial. Wanting to present stronger evidence at a

new trial, however, is not a ground to challenge a judgment on

appeal.

If the basis for intervention is the board's alleged lack

of diligence, the prospective interveners needed to move to

intervene as soon as it became apparent that the board was not

going to put on a case that met their standards. See Barkan v.

Zoning Bd. of Appeals of Truro, 95 Mass. App. Ct. 378, 387

(2019). The prospective interveners were aware of this well

before judgment, as they were monitoring the litigation, and the 12

board filed a joint pretrial memorandum listing a single

witness. Once the prospective interveners believed or had

reason to believe that the board was not adequately representing

their interests, it was incumbent on them to act promptly,

rather than to hope that the board would prevail nonetheless.

Beyond that, the only justification the prospective

interveners provide for the timing of their motion is the

assertedly unexpected development that the trial judge ordered

the issuance of the permits, rather than remanding to the board

for reconsideration. The prospective interveners, however, did

not need to intervene to protect their interests in this regard,

nor would intervention be helpful. After the board issued the

permits, pursuant to a judicial decree or not, the prospective

interveners had the right to appeal that issuance, assuming they

could establish their status as "aggrieved" persons. See St.

1956, c. 665, § 11 ("Any person aggrieved by a decision of said

board of appeal . . . may appeal to the [Suffolk] superior court

[or Boston housing court] . . . within twenty days after such

decision is filed with the building commissioner"); Prudential

Ins. Co. of Am. v. Board of Appeals of Westwood, 18 Mass. App.

Ct. 632, 635 (1984) (prospective interveners to permit seeker's

appeal of zoning board's decision not entitled to intervene

where action did not impact their rights to bring action

pursuant to G. L. c. 40A, § 17). Cf. Galbi, 101 Mass. App. Ct. 13

at 264-266 (motion to intervene untimely where prospective

intervener could have appealed grant of variance). Unlike

allowing the prospective interveners to appeal the judgment

based on the record presented by the board, this path would have

allowed the prospective interveners the possibility of producing

their own evidence in opposition to the permits.

Contrary to the suggestion in the prospective interveners'

brief, Morganelli v. Building Inspector of Canton, 7 Mass. App.

Ct. 475 (1979), is consistent with this method of challenging

the issuance of a permit. In Morganelli, we held that, where

the building inspector had been ordered to issue permits in a

previous mandamus action, the abutter plaintiffs were precluded

on the ground of res judicata from bringing a mandamus action to

prevent issuance of those same permits because their interests

had been adequately represented by the building inspector in the

first lawsuit. Id. at 476-479, 482, 486. "Morganelli (at 481-

486) applies the doctrine that a private individual whose

interests in the enforcement of zoning laws have been

represented in a previous litigation by a public agency or

official and who does not have rights specifically granted by

statute is thereafter barred from instituting his own

litigation." Butts, 18 Mass. App. Ct. at 254-255. The abutter

plaintiffs there were "not pursuing their limited statutory

right" under G. L. c. 40A, § 17. Morganelli, supra at 485 n.16. 14

See Prudential Ins. Co. of Am., 18 Mass. App. Ct. at 636 ("the

court [in Morganelli] noted that the plaintiffs in the later

action were not pursuing any § 17 rights").8 Morganelli,

therefore, poses no bar to a challenge to the issuance of a

permit raised through G. L. c. 40A, § 17, or the analogous

provision in the Boston zoning act.

4. Conclusion. The appeal of the order entered November

26, 2021, denying the prejudgment motion to intervene is

dismissed for want of jurisdiction. The order entered August

29, 2022, denying the postjudgment motion to intervene is

affirmed.

So ordered.

8 In resolving legal questions posed by the Boston zoning act, "we are guided by cases decided under the analogous provisions of G. L. c. 40A, § 17." 311 W. Broadway LLC v. Board of Appeal of Boston, 90 Mass. App. Ct. 68, 73 (2016).