Maiocco v. Leggs

32 Mass. L. Rptr. 228
CourtMassachusetts Superior Court
DecidedJuly 16, 2014
DocketNo. SUCV201303976C
StatusPublished

This text of 32 Mass. L. Rptr. 228 (Maiocco v. Leggs) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Maiocco v. Leggs, 32 Mass. L. Rptr. 228 (Mass. Ct. App. 2014).

Opinion

Gordon, Robert B., J.

Presented for decision is the Defendant’s Motion to Dismiss, premised on the contention that the Plaintiffs challenge to the decision of the Beacon Hill Architectural Commission (approving issuance of a Certificate of Appropriateness, subject to certain provisos, for a construction project at 40 Beacon Street in Boston) is untimely. Disposition of this motion calls upon the Court to construe the procedural framework for applying for construction proposals within the Historic Beacon Hill District, as set forth in Chapter 616 of the Massachusetts Acts of 1955, as amended (the “Act”). For the reasons which follow, the Court concludes that the Verified Complaint is timely under the statute, that jurisdiction has properly vested in this Court to address Plaintiffs challenge to the decision of the Commission, and that the Defendant’s Rule 12(b)(1) Motion to Dismiss must be DENIED.

I. BACKGROUND

Plaintiff CEM Realty Trust owns 39 Beacon Street in Boston, Massachusetts, a properly located within the Historic Beacon Hill District (the “Historic District”). The 39 Beacon Street property directly abuts 40 Beacon Street, a piece of real estate that includes condominium units owned by Defendant DIV Forty Beacon Property Trust (“DIV Trust”). DIV Trust is the proponent of a construction project that would entail several modifications to the exterior architectural features of 40 Beacon Street.

The Act established both the Historic District and the Beacon Hill Architectural Commission (the “Commission”). This legislation empowers the Commission to review (among other things) proposed changes to the exteriors of buildings in the Historic District, and to make determinations as to the appropriateness of such changes in light of the declared historical preservation purposes of the Act. The procedural mechanisms in the Act by which the Commission reviews and either approves or rejects proposed architectural changes within the Historic District — and by which aggrieved parties may appeal the same — mark the fault lines of the present dispute.

Sections 7 and 10 of the Act set forth the framework governing the Commission’s review and disposition of applications seeking a “Certificate of Appropriateness” (“COA”), the statutory designation representing approval of proposed projects within the Historic District. A COA from the Commission is a sine qua non for all proposed construction projects within the District. A review of the multi-step process by which approvals and denials of requested COAs are issued to property owners follows.

[229]*229A.Application for a COA

Under Section 7, Paragraph 1 of the Act, a proponent of a construction project within the Historic District activates the Commission’s review by filing an application for a COA. The statute provides:

Certificate of Appropriateness. — No person shall construct any exterior architectural feature in the historic Beacon Hill district. . . until such person shall have filed with the secretary of the commission an application for a [COA] . . . and a [COA] shall have been issued as hereinafter provided in this section.
B.Notice of Public Hearing on COA Application

Section 7, Paragraph 2 of the Act provides that, within eight days after the filing of an application for COA, the Commission must notify all estates deemed to be “materially affected” by the proposed project of a public hearing to be held on the application. The statute provides:

Within eight days after the filing of an application for a [COA], Saturdays, Sundays and legal holidays excluded, the commission shall determine the estates deemed by it to be materially affected by such application and, unless a public hearing on such application is waived in writing by all persons entitled to notice thereof, shall forthwith cause its secretary to give by mail, postage prepaid, to the applicant, to the owners of all such estates as they appear on the then most recent real estate tax list, and to any person filing written, request for notice of hearings, such request to be renewed yearly in December, reasonable notice of a public hearing before the commission on such application.
C.Commission Action on COA Application

Section 7, Paragraph 3 of the Act provides that, after the public hearing, the Commission shall make a determination as to whether the proposed construction project is “appropriate” given the desired preservation of the Historic District. The statute thus provides:

As soon as conveniently may be after such public hearing or the waiver thereof, but in all events within thirty days, Saturdays, Sundays and legal holidays excluded, after the filing of the application for the [COA], or within such further time as the applicant may in writing allow, the commission shall determine whether the proposed construction [project] will be appropriate to the preservation of the historic Beacon Hill district for the purposes of this act. . .

Section 7, Paragraph 4 of the Act, densely drafted, then sets forth four possible scenarios by which the Commission may give effect to its determination of appropriateness. The first three result in the issuance of a COA, and the fourth entails a denial of the application for COA. The statute provides as follows:

[1] If the commission determines that the proposed construction [project] . . . will be appropriate or,
[2] although inappropriate, owing to conditions [especially affecting the structure involved, but not affecting the historic Beacon Hill district generally], failure to issue a [COA] will involve a substantial hardship to the applicant and issuance thereof may be made without substantial detriment [to the public welfare] or derogation [from the intent and purposes of this act], or
[3] if the commission fails to make a determination within the time hereinbefore prescribed, [then]
the secretary of the commission shall forthwith issue to the applicant a [COA].
If the commission determines that a [COA] should not issue, the commission shall forthwith spread upon its records the reasons for such determination and may include recommendations respecting the proposed construction [project] . . .

D.Commission Notice of Determination to Applicant and Other Interested Parties Requesting Such Notice

Promptly following the making of its determination regarding issuance or non-issuance of a COA, the Act requires the Commission to give notice of such determination — and, in the case of a denial, a statement of the reasons for the denial and any recommendations related to the same — to the applicant and to any other persons who filed a written request to receive notices from the Commission regarding the project application. Section 7, Paragraph 4 of the statute thus provides in its final sentence as follows:

Thereupon the secretary of the commission shall forthwith by mail, postage prepaid, give notice of such determination to the applicant and to every person filing written request for such notice, transmitting therewith an attested copy of the reasons and recommendations, if any, spread upon the records of the commission.

E.Aggrieved Person’s Notice and Filing of Appeal

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Related

Parker v. Beacon Hill Architectural Commission
536 N.E.2d 1108 (Massachusetts Appeals Court, 1989)
Bankers Life & Casualty Co. v. Commissioner of Insurance
691 N.E.2d 929 (Massachusetts Supreme Judicial Court, 1998)
Marr v. Back Bay Architectural Commission
505 N.E.2d 534 (Massachusetts Appeals Court, 1987)

Cite This Page — Counsel Stack

Bluebook (online)
32 Mass. L. Rptr. 228, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maiocco-v-leggs-masssuperct-2014.