United States v. Town of Lincoln Zoning Bd. of Appeals

• Decision Date: 28 February 2013
• Docket Number: Civil Action No. 12–10179–DJC.
• Citation: 928 F.Supp.2d 272
• Parties: UNITED STATES of America v. TOWN OF LINCOLN ZONING BOARD OF APPEALS, and Steve Daigle, Joel Freedman, John Kimball, Jefferson Macklin, Megan Stride, David Summer, and Margaret Olson, Members of the Town of Lincoln Zoning Board of Appeals, and Town of Lincoln Affordable Housing Trust, and NuPath, Inc., Defendants.
• Court: U.S. District Court — District of Massachusetts

928 F.Supp.2d 272

UNITED STATES of America

v.TOWN OF LINCOLN ZONING BOARD OF APPEALS, and Steve Daigle, Joel Freedman, John Kimball, Jefferson Macklin, Megan Stride, David Summer, and Margaret Olson, Members of the Town of Lincoln Zoning Board of Appeals, and Town of Lincoln Affordable Housing Trust, and NuPath, Inc., Defendants.

Civil Action No. 12–10179–DJC.

United States District Court,

D. Massachusetts.

Feb. 28, 2013.

Anita Johnson, United States Attorney's Office, Boston, MA, for United States of America.

Joel B. Bard, Katharine Isabel Doyle, Kopelman & Paige, PC, Kenneth J. Mickiewicz, Davis, Malm & D'Agostine, P., Boston, MA, for Defendants.

MEMORANDUM AND ORDER

CASPER, District Judge.

I. Introduction

The United States has filed an action seeking to challenge the grant of a Special Permit issued by Defendant Town of Lincoln Zoning Board of Appeals (“Board” or “ZBA”) to Defendant NuPath, Inc. (“NuPath”) allowing construction of a structure on a property owned by Defendant Town of Lincoln Affordable Housing Trust (“Trust”) located in Lincoln, Massachusetts. D. 1. Defendant Trust has moved to dismiss “those parts of the Complaint seeking an appeal under [Mass. Gen. L.] c. 40A, § 17” on the grounds that this Court “lacks jurisdiction on the subject matter of those claims.” D. 26 at 2. For the reasons stated in this memorandum, the Court GRANTS that motion since the United States has failed to meet a compulsory requirement to maintain its lawsuit and thus the complaint fails to state a claim upon which relief can be granted.

II. Background

On January 31, 2012, the United States filed this action and a nearly identical action in the Land Court department of the Trial Court in the Commonwealth of Massachusetts. D. 1; D. 24 Exh. 1; D. 25 Exh. 1 at 2. In both actions, the United States appeals from a decision in which Defendant Board granted a special permit to Defendant NuPath to construct a house on property located at 12 Airport Road in Lincoln, Massachusetts (“the Property”). D. 1 ¶ 1.¹ The Property is owned by Defendant Trust and is located entirely within the legislated boundary of the Minute Man National Historical Park (“the Park”). D. 1 ¶ 1. The Property is surrounded on all sides by land owned by the United States. D. 1 ¶ 1. On August 3, 2012, a Land Court judge stayed the state action in favor of this federal action. D. 25 Exh. 1 at 3.

The United States has asserted two causes of action, namely that the ZBA exceeded its authority in issuing the Special Permit to NuPath and that the Defendants have trespassed and are likely to trespass again on land owned by the United States. The United States asserts that jurisdiction is proper in this Court based on 28 U.S.C. §§ 1345, 1331 (“federal question”), “and the federal common law.” ² D. 1 ¶ 2. The Town of Lincoln Affordable Housing Trust (“Trust”) has filed a motion challenging the subject matter jurisdiction of this Court to hear “those parts of the Complaint seeking an appeal under Mass. Gen. L. c. 40A, § 17,” which is the state statute that permits judicial review of a decision by a state zoning board of appeals. ³ D. 26 at 2. Here, the United States does not dispute that it has failed to satisfy the requirements stated in Mass. Gen. L. c. 40A, § 17, that “[n]otice of the action with a copy of the complaint shall be given to such city or town clerk so as to be received within such twenty days.” See Pl. Opp., D. 28 at 4–5 & n. 1 (arguing that “[t]here is no requirement in the Federal Rules, nor in any federal statute or regulation, that separate notice be provided to the Town Clerk in this action”); see also Aff. of Town Clerk of Lincoln, D. 27 ¶¶ 4–5 (stating that “no notice of appeal had been filed for a judicial appeal to or in the U.S. District Court”). The Court does note that the United States has satisfied the filing requirement of Mass. Gen. L. c. 40A § 17 for the action it has filed in Land Court. D. 28 at 4 n. 1.

The Trust asserts that the filing requirement stated in Mass. Gen. L. c. 40A, § 17 is jurisdictional. The United States responds that the Trust's motion “is founded on a procedural requirements [sic] of a Commonwealth of Massachusetts statute that is inapplicable to this federal action, and should be denied.” Pl. Opp., D. 28 at 2. The United States argues that because this Court has original jurisdiction over all claims based on 28 U.S.C. § 1345, and “because proper service has been effected on all Defendants in accordance with the Federal Rules of Civil Procedure, and because no federal law requires that separate notice of this federal action be served upon the Town Clerk, the Trust's motion is without merit, and should be denied.” D. 28 at 2.

III. Discussion

The United States characterizes the Trust's motion to dismiss as a challenge to proper service and asserts that the Trust's motion was “untimely” in raising the issue and that the Trust lacked standing to bring claims “regarding insufficient service upon another entity.” Pl. Opp., D. 28 at 2. But the Trust's contention is not that the United States failed to serve process on the town clerk, who is not a party in this lawsuit and is not subject to service requirements set out by Fed.R.Civ.P. 4(c), but that the United States failed to meet a filing deadline with the town clerk's office. The Trust's motion is facially a challenge to this Court's subject matter jurisdiction, and even were that not so, the Court would still be required to address sua sponte its jurisdiction once it became aware of an alleged defect. Fed.R.Civ.P. 12(h)(3).

A party's challenge to the Court's subject matter jurisdiction may be raised at any time, and if the Court agrees that it lacks subject matter jurisdiction, the Court “must” dismiss the action. Fed.R.Civ.P. 12(h)(3). The United States correctly asserts that in general it may bring suit in this Court as a plaintiff under 28 U.S.C. § 1345. The question, however, is whether noncompliance with the state rule here (1) divests this Court of jurisdiction that it might otherwise hold, or (2) does not affect this Court's jurisdiction, but is nonetheless a compulsory procedural requirement ⁴ or (3) has no effect on this federal suit. This Court concludes that the second view is correct, and that the notice and filing step mandated by Mass. Gen. L. c. 40A, § 17 is a compulsory procedural requirement and does not divest this Court of jurisdiction.

A. The Filing Requirement in Mass. Gen. L. c. 40A, § 17 Does Not Divest This Court of Subject Matter Jurisdiction

The Trust relies on Town of Uxbridge v. Griff, 68 Mass.App.Ct. 174, 860 N.E.2d 972 (2007) and Bingham v. City Council of Fitchburg, 52 Mass.App.Ct. 566, 754 N.E.2d 1078 (2001) for the proposition that the failure to file notice is a jurisdictional defect. D. 26 at 2. The Trust appears to be correct that in state court the failure to file the “[n]otice of action with a copy of the complaint” has been described as a jurisdictional failure that precludes review. In Town of Uxbridge, the appealing party failed to file a notice of the action with the town clerk. The court held that “[f]ailure to comply with this jurisdictional requirement means that the Superior Court lacked jurisdiction over the zoning appeal.” Town of Uxbridge, 68 Mass.App.Ct. at 175 n. 3, 860 N.E.2d 972;see also Konover Mgmt. Corp. v. Planning Bd. of Auburn, 32 Mass.App.Ct. 319, 322–23, 588 N.E.2d 1365 (1992) (recognizing that “receipt of notice by the town clerk is a jurisdictional requisite for an action under G.L. c. 40A, § 17”); Garfield v. Bd. of Appeals of Rockport, 356 Mass. 37, 39, 247 N.E.2d 720 (1969) (noting that “[i]f the required notice was not received within twenty days, the appeal should have been dismissed for lack of jurisdiction”). Other cases have described the filing requirement not in jurisdictional terms, but as a necessary step to bring suit. See, e.g., Bingham, 52 Mass.App. at 568, 754 N.E.2d 1078 (observing that “[r]eceipt of notice by a city clerk is a prerequisite for an action under G.L. c. 40A, § 17, which the courts have policed in the strongest way and given strict enforcement”) (internal quotation marks omitted).

For the purposes of this motion, the Court accepts the view that G.L. c. 40A, § 17 grants subject matter jurisdiction to certain specifically named Massachusetts state courts to review a “decision of the board of appeals,” and that the failure by a party to meet the statutory filing requirement with the town clerk divests those state courts of said jurisdiction. But the United States has not asserted that this court has jurisdiction under Mass. Gen. L. c. 40A, § 17. That statute, for obvious reasons, cannot and does not establish jurisdiction of zoning appeals in the federal courts. The United States instead asserts that this Court has jurisdiction through 28 U.S.C. § 1345.

The United States finds support in Laborers' Pension Fund v. Pavement Maint., Inc., 542 F.3d 189, 193–94 (7th Cir.2008). In that case, an appellant argued that “the district court ‘lost’ its subject-matter jurisdiction” where the appellee failed to comply with the requirements of an Illinois Supreme Court rule providing for “ ‘automatic termination’ of [a proceeding] after six months unless the trial court grants an extension.” Id. at 193. That court noted that it could not find “a single instance in which a state rule of procedure has been permitted to divest a federal court of subject-matter jurisdiction” and held that “[s]tate rules of procedure cannot negate subject-matter jurisdiction arising from a federal statute and federal question.” Id. at 194. Analogous are cases involving challenges to federal removal jurisdiction based on alleged defects that may have divested state courts of jurisdiction over the removed matters. In Castleberry v. Goldome Credit Corp., 408 F.3d 773, 783–84 (11th Cir.2005), a plaintiff objected to removal of an action under 12 U.S.C. § 1819(b)(2)(B) “because [a cross-claim] was filed...