Pishev v. City of Somerville

Decision Date26 July 2019
Docket NumberNo. 18-P-467,18-P-467
Citation131 N.E.3d 852,95 Mass.App.Ct. 678
Parties Aliki PISHEV & others v. CITY OF SOMERVILLE & others.
CourtAppeals Court of Massachusetts

Philip H. Cahalin for the plaintiffs.

Thaddeus A. Heuer (Jeremy W. Meisinger also present) for the defendants.

Present: Milkey, Sullivan, & McDonough, JJ.


In 2012, the defendant city of Somerville (city) and the Massachusetts Department of Housing and Community Development (department) approved the Union Square Revitalization Plan (2012 plan or plan), a twenty-year urban renewal program to redevelop land in Union Square in Somerville (the site). In 2015, a Somerville landowner, plaintiff Aliki Pishev, and the plaintiff taxpayer group (taxpayer group) (collectively, plaintiffs) filed an action in the Superior Court, contesting the plan. By their three-count amended complaint, the plaintiffs alleged that the city, the defendant Somerville Redevelopment Authority (authority), and the planning board of Somerville (collectively, defendants), did not comply with various requirements of the Massachusetts urban renewal law, G. L. c. 121B, §§ 1 - 60, in approving the 2012 plan. The plaintiffs sought an order declaring the plan invalid and a preliminary injunction restraining the defendants from taking further action to implement it.3 The defendants filed motions to dismiss, which the judge allowed, ruling that (a) Pishev, whose property is to be taken by eminent domain at an indeterminate date in the future, and who, as such, had standing to seek judicial review of the 2012 plan, had nonetheless failed to timely commence her action within sixty days of the date of final plan approval in 2012, a procedural failing requiring dismissal of her count I claims; and (b) the taxpayer group did not have standing to seek review and were precluded from maintaining their claims under count II of the amended complaint.4 The plaintiffs appealed from the judgment. We affirm.

Facts. The facts material to the legal questions before us are as follows.

1. The 2012 plan. On August 15, 2012, the authority approved a resolution declaring the site a "[d]ecadent" area as defined by G. L. c. 121B, § 1.5 The defendant planning board of Somerville then determined that the 2012 plan was properly based on a local survey and was consistent with a comprehensive plan for the city. Subsequently, the city's board of aldermen held a public hearing regarding the plan on September 19, 2012.6 The individuals who attended the hearing had an opportunity to comment on the plan. At a special meeting on October 2, 2012, the board of aldermen voted (seven to three) to approve the plan; the mayor of Somerville, on October 4, 2012, also approved the plan. Next, at a special meeting on October 9, 2012, the authority approved the plan and submitted it to the department for its independent review and approval.7 The 2012 plan, comprised of nearly 160 pages, is a public document created for the public's review, to facilitate public comment and debate during the lengthy approval process before the city and the responsible State agency.

On November 19, 2012, the department approved the plan.8 Over the nearly three-year period from plan approval to commencement of the Superior Court action, the authority took definite steps to advance the approved urban renewal program, including, among other things, expending more than $8 million in municipal bond funds (a) to acquire by eminent domain certain designated parcels, (b) to relocate owners, and (c) to conduct preparation activities on the site. The city will utilize State and Federal grant funds for implementing the plan.

The 2012 plan concerns approximately 117 acres of land and its public purpose is to stimulate and to facilitate redevelopment of deteriorated and obsolescent conditions, to alleviate traffic congestion, and to eliminate inadequate and incompatible land uses. The plan aims to achieve its goals by acquisition of decadent parcels, spot clearance, conservation, and redevelopment. The plan addresses three types of areas: conservation areas, enhancement areas, and transformation areas. Conservation and enhancement areas will undergo no, or no significant, physical change. It is in the transformation areas where large-scale renewal will occur in phases over time, by redeveloping parcels geared toward automotive and industrial uses into a mix of business and residential uses, such as "office and research [and] development, with retail shops, establishments, and restaurants"; the plan also "calls for additional housing," including affordable units.

2. The plaintiffs. As of 2015, Pishev owned the land and building at 47 Webster Avenue, Somerville (Webster Avenue property). Her property is located in a transformation area and is slated to be taken by the authority under its eminent domain power, for clearance and redevelopment under the plan. No order of taking had issued for her property as of the filing of this lawsuit. The taxpayer group claims they are taxpayer inhabitants of the city.

The plaintiffs contest the 2012 plan, the authority's findings, and its decisions declaring that the site in question is decadent and that the affected land parcels are eligible to be acquired for urban renewal purposes.9 The taxpayer group alleges that the defendants are about to raise or to expend money, binding the city, for an unlawful purpose: the implementation of the 2012 plan. The plaintiffs assert that the 2012 plan violates the urban renewal law, G. L. c. 121B, and the regulations promulgated thereunder.

Procedural history. Pursuant to Mass. R. Civ. P. 12(b)(1) and (6), 365 Mass. 754 (1974), the defendants filed a motion to dismiss the action, on the basis that the plaintiffs lacked standing.10 With the motion, the defendants filed two supporting affidavits,11 which had the effect of placing the burden on the plaintiffs to establish jurisdiction-related facts entitling them to bring an action under G. L. c. 121B. See Callahan v. First Congregational Church of Haverhill, 441 Mass. 699, 710, 808 N.E.2d 301 (2004) ; General Convention of the New Jerusalem in the United States of Am., Inc. v. MacKenzie, 66 Mass. App. Ct. 836, 837 n.5, 851 N.E.2d 455 (2006), S.C., 449 Mass. 832, 874 N.E.2d 1084 (2007) ; Brown v. Tobyne, 9 Mass. App. Ct. 897, 898, 402 N.E.2d 1097 (1980).

When deciding a rule 12(b)(1) motion, a judge may consider documents and materials that are outside the pleadings but attached to an affidavit. Callahan, 441 Mass. at 710, 808 N.E.2d 301. "[A] 'factual challenge' to subject matter jurisdiction gives no presumptive weight to the averments in the plaintiff[s'] complaint, and requires the court to address the merits of the jurisdictional claim by resolving the factual disputes between the plaintiff[s] and the defendants." Id. at 711, 808 N.E.2d 301. Opposing the motion, the plaintiffs filed counter affidavits, largely to answer a central issue whether Pishev was then the owner of the Webster Avenue property.

On the materials presented, the judge found that Pishev was the landowner, had standing to contest the 2012 plan and, therefore, declined to dismiss Pishev's claims under count I of the amended complaint for lack of standing. As to the taxpayer group, the judge ruled, as a matter of law, that the taxpayer group lacked standing to challenge the 2012 plan and, thus, dismissed count II of the amended complaint.

Subsequently, the defendants filed a second motion to dismiss, pursuant to rule 12(b)(1) and (6), requesting that the judge dismiss what remained of Pishev's count I claims on the basis that said claims were time barred as a matter of law. The judge allowed the defendants' second motion to dismiss for the reason stated by the defendants.

Standard of review. We review the judge's legal rulings as to the plaintiffs' standing de novo. See Indeck Me. Energy, LLC v. Commissioner of Energy Resources, 454 Mass. 511, 516, 911 N.E.2d 149 (2009) ( Indeck ). In a declaratory judgment action, under G. L. c. 231A, § 1, which is a component of the present lawsuit, a plaintiff must establish both an actual controversy and legal standing before the complaint may be heard. See Indeck, supra at 516-517, 911 N.E.2d 149.12 Analysis. 1. Plaintiffs' standing. Standing is an issue that may be tested by a rule 12(b)(1) motion to dismiss. See Indeck, supra at 516, 911 N.E.2d 149. Standing is an "elastic concept[ ]" whose meaning depends on the particular circumstances. Enos v. Secretary of Envtl. Affairs, 432 Mass. 132, 135, 731 N.E.2d 525 (2000). See Service Employees Int'l Union, Local 509 v. Department of Mental Health, 469 Mass. 323, 329, 14 N.E.3d 216 (2014). A court lacks subject matter jurisdiction over an action, and is without power "to decide the merits of a dispute or claim," if a plaintiff does not have standing to file the lawsuit. HSBC Bank USA, N.A. v. Matt, 464 Mass. 193, 199, 981 N.E.2d 710 (2013).13 Standing to bring an action contesting an approved urban renewal plan under G. L. c. 121B "must be determined with reference to the context and subject matter of the statute." Beard Motors, Inc. v. Toyota Motor Distribs., Inc., 395 Mass. 428, 431, 480 N.E.2d 303 (1985). The court, in determining the intent of the Legislature, looks to both the language and the purposes of the particular act. Id. at 431-432, 480 N.E.2d 303. Unless the Legislature has clearly indicated that it intends a broader grant of standing, the Supreme Judicial Court has "generally looked to whether the party claiming to have standing has alleged an injury 'within the area of concern of the statute or regulatory scheme under which the injurious action has occurred.'" Id. at 432, 480 N.E.2d 303. The judge correctly ruled that the taxpayer group failed to make this jurisdictional showing under G. L. c. 121B, based on controlling Massachusetts case law.

a. Chapter 121B's area of concern. The Legislature enacted G. L. c. 121B for the public purpose of...

To continue reading

Request your trial
2 cases
  • Nordberg v. Forbes
    • United States
    • Appeals Court of Massachusetts
    • May 13, 2022
    ... ... review the judge's legal rulings as to the ... plaintiff['s] standing de novo." Pishev v ... Somerville, 95 Mass.App.Ct. 678, 682 (2019) ... "It ... is settled that G. L. c ... ...
  • Katsiane v. Bos. Redevelopment Auth.
    • United States
    • Appeals Court of Massachusetts
    • July 23, 2021
    ...injunction is Denied and the complaint is dismissed."Discussion. Our review of the judge's ruling is de novo. Pishev v. Somerville, 95 Mass. App. Ct. 678, 682 (2019). Katsiane argues that the "controlling legal issue" here is "whether the BRA can terminate the two binding land use [a]greeme......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT