COMMONWEALTH OF MASSACHUSETTS SUFFOLK, SS SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT CIVIL ACTION NO.

12-4544B
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BENJAMIN DAY, IN HIS REPRESENTATIVE CAPACITY, AS CHAIRPERSON OF THE JAMAICA PLAIN NEIGHBORHOOD COUNCIL, Plaintiff, v. BRG 161 SOUTH HUNTINGTON, LLC AND THE CITY OF BOSTON BOARD OF APPEAL

Defendants. ______________________________)

PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION TO DISMISS
1. Introduction.
Defendants have moved pursuant to Mass. R. Civ. P. 12(b)(1) and 12(b)(6) to dismiss Plaintiff's Amended Complaint, which seeks to invalidate the decision of the City of Boston Board of Appeal granting variances for a 196 mostly high-end residential rental unit project proposed by defendant BRG 161 South Huntington, LLC ("BRG"). The site, located at 161 South Huntington Avenue in the Jamaica Plain district of the City of Boston, was occupied by the Home for Little Wanderers. Defendants' principal argument is their claim that this Court lacks subject matter jurisdiction over this matter. Specifically, they contend that the Jamaica Plain Neighborhood Council ("JPNC") is not a "municipal board" within the meaning of the Boston Zoning Code (the "Code"). Defendants make this Argument even though the JPNC's duties and responsibilities concerning zoning matters are set forth in the Code and despite the

fact that for more than 30 years, the JPNC has performed, and continues to perform, a regular and integral role in the City of Boston's zoning appeal process for the Jamaica Plain Neighborhood District. It is these factors that give the JPNC the status of a "municipal board" within the meaning of the Code and standing to bring this action. Defendants' Motion must be denied. 1
2. Statement of Facts.

The Amended Complaint alleges that: This Court has standing to bring this action in that the JPNC is a municipal board with duties to perform in relation to zoning in Jamaica Plain within the meaning of section 11 of the City of Boston Zoning Enabling Act St. 1956, c. 665, as most recently amended by St. 1974, c. 669, s. 1 and St. 1994, c. 461, s. 2. Article 55 of the Boston Zoning Code expressly provides for the JPNC's and its Zoning Committee's authority concerning zoning matters in Jamaica Plain. (Amended Complaint, para. 6.) Plaintiff's allegations in this regard track the language of Section 11 of the City of Boston Zoning Enabling Act (the "Zoning Enabling Act") conferring standing. The Zoning Enabling Act, for standing purposes, draws a distinction between "any person," who must show "aggrieve[ment]" and a "municipal board," which does not. It states, in relevant part, as follows: Any person aggrieved by a decision of said board of appeal, whether or not previously a party to the proceeding, or any municipal board or officer, may appeal to the superior court department of the trial court sitting in equity for the county of Suffolk. .. (City of Boston Enabling Act, Section 11.) (Emphasis Added.) Article 55 of the Zoning Code, enacted by the city's Zoning Commission with the approval of the city's mayor, is the article governing zoning matters in Jamaica Plain. It sets out
At the least, this Court should afford Plaintiff the opportunity for discovery from the Board of Appeal and the Boston Redevelopment Authority regarding the role of the JPNC in the City's zoning process, which would include testimony and documents concerning the actions of the City in requiring applicants for zoning relief to appear before the JPNC Zoning Committee before proceeding to a hearing before the Board of Appeal.
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the duties of the JPNC at Section 55-2, entitled "Recognition of the Jamaica Plain Neighborhood Plan" and at Section 55-6, entitled "Community Participation." Section 55-2 states: Recognition of the Jamaica Plain Neighborhood Plan. In accordance with Section 27J-7 of this Code, which requires production of comprehensive planning policies, development controls, and design guidelines for the Jamaica Plain Neighborhood District, the Commission shall recognize the Jamaica Plain Neighborhood Plan, when adopted by the Boston Redevelopment Authority, following approval by the Jamaica Plain Neighborhood Council, as the general plan for the Jamaica Plain Neighborhood District. The Jamaica Plain Neighborhood Plan, when approved, also shall serve as the portion of the general plan for the City of Boston applicable to the Jamaica Plain Neighborhood District. This Article is an integral part of, and one of the means of implementing, the Jamaica Plain Neighborhood Plan, the preparation of which is pursuant to Section 70 of Chapter 41 of the General Laws, Section 652 of the Acts of 1960, and Section 3 of Chapter 4 ofthe Ordinances of 1952. (Emphasis Added.) Section 55-6 States: Community Participation. This Article has been developed with extensive participation of the Jamaica Plain Neighborhood Council and its Zoning Committee, together with civic and neighborhood associations, business and trade groups, and residents. The role of community participation in determining appropriate land use regulations and zoning is critical to the success of any zoning article or development plan. To continue that role, the Jamaica Plain Neighborhood Council and its Zoning Committee, and the Jamaica Plain civic and neighborhood associations, business and trade groups, and residents, shall continue to play an ongoing role in advising the City on land use planning for Jamaica Plain. (Emphasis Added.) As set out in Section 55-2 above, the zoning regulations for the Jamaica Plain Neighborhood District, promulgated in Article 55 of the Code, were subject to approval by the Jamaica Plain Neighborhood Council. Section 55-6 of the Code recognizes that Article 55 was developed with "extensive participation" of the JPNC. In mandatory language, Section 55-6 states that the JPNC and its Zoning Committee "shall" continue to play an "ongoing role" in advising the City on land use planning for Jamaica Plain.

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When the JPNC was created, in 1985, its 20 members were appointed by the mayor. Affidavit of Michael Reiskind ("Reiskind Aff."), filed herewith, paras. 2,3. 2 Soon after its creation, the mayor delegated the manner of selecting members of the JPNC to the JPNC itself. The members of the JPNC, without objection from the city or the mayor, voted to approve bylaws, which changed membership in the JPNC from a Mayoral appointment process to a neighborhood election to be conducted every two years. Reiskind Aff., para. 3. Over the years, the City of Boston Election Department has assisted in conducting JPNC elections. The Election Department has verified the nominating papers of those seeking election to the JPNC by comparing the signatures to the City of Boston resident list. The Election Department also has provided tables and chairs and wooden ballot boxes for use on JPNC election days. Reiskind Aff., para. 6. One of the four JPNC standing committees is the JPNC Zoning Committee, the role of which from the time the JPNC was created in 1985, has been to hold public hearings in Jamaica Plain and to vote on various zoning issues, including appeals for variances from the Zoning Code to the City's Board of Appeal, changes in the Zoning Code by the City's Zoning Commission, and permitting for activities in Greenbelt Protection Overlay Districts. These hearings take place prior to the review process of the Boston Redevelopment Authority ("BRA"), the hearings by the Board of Appeal and hearings by the Zoning Commission. Reiskind Aff., paras 7, 8. Between 1987 and 1993 in a lengthy and involved public community process to update the zoning code in Jamaica Plain, the City and the BRA delegated to the JPNC the task of conducting the community process to review the then existing zoning code and to draft a new zoning code for Jamaica Plain, which became Article 55 of the Code. Reiskind Aff., paras. 9,10.

As set out in Section 3B below, because Defendants challenge the truth of the allegations ofthe Amended Complaint, Plaintiff may submit additional materials supporting jurisdiction.

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The JPNC made revisions, alterations, additions and edits to the then existing zoning code, a process which involved numerous public hearings and meetings and took more than two years to complete. The city and the BRA provided staff members for administrative and technical assistance and senior BRA personnel on key issues. Reiskind Aff., para. 12. New Article 55, after approval by the BRA board of directors, a vote of the Zoning Commission, and written approval by the mayor, became effective in September 1993. Reiskind Aff., para. 13. As shown by the express language of Article 55, it was the clear intent of the City, the BRA, the JPNC (as the prime author of Article 55), the Zoning Commission and the mayor in the enactment of Article 55, to codify in Section 55-6 their long-standing practice of having the JPNC conduct on their behalf local public hearings to review all zoning appeals in Jamaica Plain prior to consideration of them by the Board of Appeal. 3 Reiskind Aff., para. 14. The role of the JPNC in reviewing and approving or denying zoning appeals, as described above, had been well established by the City, the BRA and the Board of Appeal and has remained fundamentally unchanged since the City established the JPNC in 1985. Reiskind Aff., para. 15. A property owner in Jamaica Plain who seeks a building permit must apply to the City of Boston Inspectional Services Department ("ISD"). ISD determines whether construction of the project would violate the Zoning Code. If, in the determination ofiSD, the project would violate the Zoning Code, ISD denies the permit and issues a letter of denial to the applicant. Id. If, despite the denial, the applicant desires to seek relief from the Zoning Code by way of a variance

Although under the Code, the Board of Appeal is not required to adopt the recommendations of the BRA or those of the JPNC, it is, and has been, the practice of the Board of Appeal not to consider the merits of any appeal for zoning relief for a Jamaica Plain project without the appellant and the JPNC first having participated in the above JPNC public hearing process. Reiskind Aff., para. 27.

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from the Code provisions, the applicant is required to appeal the denial to the Board of Appeal. Reiskind Aff., para. 16 .. If an appeal is made by the applicant, the Chair of the JPNC Zoning Committee receives notice of the filing of the appeal either from the BRA, the Mayor's Office ofNeighborhood Services, or, at infrequent times, directly from the applicant. Reiskind Aff., para. 17. The Zoning Committee conducts public hearings throughout the year, typically on an every two weeks basis. Among the requirements for a presentation to the Zoning Committee at such a hearing is that the appellant provide, on behalf of the Zoning Committee, leaflets giving notice of the date, time, place and subject matter of the Zoning Committee hearing, to residents and any businesses within an approximate two-block perimeter of the project site. The applicant must submit to the Zoning Committee an affidavit attesting that he or she distributed the required leaflets. Reiskind Aff., paras. 18, 19. At the hearing before the Zoning Committee, there is opportunity for any persons who oppose or support the appeal for a variance at issue to be heard. The Zoning Committee has several options at the close of the hearing, among which are an up or down vote to recommend to approve or deny the appeal, or a deferral of a vote with direction to the applicant regarding alterations it must make to its project to gain the support of the Zoning Committee. The Zoning Committee may also require the applicant to return to the neighborhood of the project site and, if there is opposition to the applicant's request, to negotiate with neighbors to gain their support. Reiskind Aff., para. 20. In those situations in which the Zoning Committee votes on the request to recommend to approve or to deny the appeal, the decision of the Zoning Committee is reported to the full JPNC, and the full JPNC votes either to approve or disapprove the Zoning Committee's

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recommendation. Reiskind Aff., para. 21. In the case of a zoning appeal, the Chair of the Zoning Committee, upon a vote of approval by the JPNC, sends a letter summarizing the Committee's decision to the Chairperson of the Board of Appeal and the BRA. Reiskind Aff., para. 22. In the many years since the addition of Article 55 to the Zoning Code in September 1993, the City, the BRA, the Board of Appeal, the JPNC Zoning Committee and the JPNC at all times have followed the practices and procedures outlined above. Reiskind Aff., para. 28. The project of defendant BRG that is at issue in this matter is a case followed the procedures outlined above. BRG proposes to raze the three existing buildings at 161 South Huntington Avenue, Jamaica Plain, owned and used for many years by the New England Home for Little Wanderers (one building since 1914), and to erect in their stead, a four and five story 196, mostly high-end. rental unit building stretching from the property line of the site to the south to the one at the northern end of the site, along South Huntington A venue. Reiskind Aff., para. 23. Because, in the determination ofiSD, the project proposed by BRG would violate the existing zoning regulations for, among other things, allowed height and floor area ratio, BRG was required by the BRA and the city to present its project to the JPNC Zoning Committee at a public hearing held Thursday, October 11, 2012, prior to its hearing before the Board of Appeal. Reiskind Aff., para. 24. After BRG made its presentation at the October 11 hearing, the persons in attendance who supported the project and those present who opposed it were allowed to express their views to the Zoning Committee. Reiskind Aff., para. 25. After discussion of the project by the members, the Zoning Committee voted 13-0-0 to recommend denial of the BRG appeal for

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variances for the project. The JPNC, on October 30, 2012, affirmed the decision of the Zoning Committee. Reiskind Aff., para. 26.

3. Argument. A. The Amended Complaint Sufficiently Alleges that the JPNC Has Standing to Bring this Case.
Plaintiffs Amended Complaint sets out sufficiently the necessary allegations for standing pursuant to Section 11 of the City of Boston Zoning Enabling Act. The Enabling Act, distinguishing between "any person" who must prove that he or she is "aggrieved" and a "municipal board or officer," grants standing to appeal to a "municipal board or officer" from a decision of the Board of Appeal, without the need otherwise to establish "aggrieve[ment]." David v. Board of Appeals of Reading, 333 Mass. 657, 662 (1956) ("It is to be noted that the statute did not require the officer or board to be aggrieved as it did in the case of every other party plaintiff in order to appeal.") Case law interpreting the analogous provision of the state law4 has narrowed those parties who are eligible for standing "to 'municipal officer[ s] or board[ s]' that have duties to perform in relation to the building code or zoning." (Emphasis added.) Planning Board of Marshfield v. Zoning Board of Appeals ofPembroke, 427 Mass 699,701 (1998). The Amended Complaint alleges that "the JPNC is a municipal board with duties to perform in relation to zoning in Jamaica Plain within the meaning of section 11 of the City of Boston Zoning Enabling Act St. 1956, c. 665, as most recently amended by St. 1974, c. 669, s. 1 and St. 1994, c. 461, s. 2. Article 55 ofthe Boston Zoning Code expressly provides for the JPNC's and its Zoning Committee's authority concerning zoning matters in Jamaica Plain."
Although the courts look for guidance to those cases interpreting analogous provisions of the state law, Plaintiff does not concede that such cases are binding with respect to the City of Boston Zoning Code. Indeed, the City of Boston enacted its own code because the City's zoning issues are different from those of the rest of the Commonwealth.
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Amended Complaint, para. 6. As a matter of pleading, the Amended Complaint alleges facts which, if taken as true, as they must be at this stage, [Marram v. Kobrick Offshore Fund, Ltd., 442 Mass. 43, 45 (2004)], are sufficient to confer standing under the Code. Defendants' motion therefore, insofar as it is pursuant to Rule 12(b)(6), must be denied.
B. Because the Defendants' Motion to Dismiss Contends that the JPNC, as a Factual Matter, is Not a "Municipal Board" as Alleged in the Amended Complaint, Plaintiff is Entitled to Submit Affidavits to Support its Allegations.

Defendants' main challenge to the Amended Complaint is not to the sufficiency of pleading, rather they contest matters of fact. As many judicial decisions made clear, a motion under 12(b)(1) may be used to attack two different types of jurisdiction defects. The first is the pleader's failure to comply with the pleading obligation set out in Rule 8(a)(l), which means that the allegations in the complaint are insufficient to show that the [court] has jurisdiction over the subject matter of the case ... .Ifthe complaint does not properly invoke the [court's] jurisdiction, then the complaint is defective .... The other defect that may be challenged under Rule 12(b)(l) .. .is that the [court] actually lacks jurisdiction over the subject matter, a defect that might exist despite the formal sufficiency of the Rule 8(a)(l) allegations in the complaint. See Federal Practice and Procedure, 5B Fed.Prac. & Proc. Civ. sec. 1350 (3d ed.), as cited in Ginther v. Commissioner of Insurance, 427 Mass 319, 325 n. 6 (1998). In other words, Defendants argue that as a matter of fact, the JPNC is not a "municipal board" within the meaning of Section 11 of the Enabling Act. 5 Because Defendants' attack is directed to whether the facts alleged in the Amended Complaint are true, Plaintiff is entitled to submit extraneous materials supporting his allegations supporting jurisdiction. Id., citing 5A, C.A. Wright & A.R. Miller, Federal Practice and Procedure, s 1350 (1990) ("When the movant's purpose is to challenge the substance of the jurisdictional allegations, he may use affidavits and other additional matter to support the motion. Conversely, the pleader may establish the actual
Defendant's Motion contends in this regard that: "The JPNC is a volunteer unincorporated association that is not a municipal board of the City of Boston." (Defendants' Motion, p. 2).
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existence of subject matter jurisdiction through extra-pleading material.) In further support of Plaintiffs jurisdictional allegations, he has submitted the Affidavit of Michael Reiskind, filed herewith.

C. The JPNC is a Municipal Board Within the Meaning of Section 11 of the Zoning Enabling Act and Therefore Has Standing to Bring This Action.

As a matter of fact, the JPN C is a municipal board within the meaning of Section 11 of the Zoning Enabling Act, and therefore has standing to bring this action. The determination whether an entity is a "municipal board" requires a close analysis of all of the circumstances, including any ordinances or other means of delegation of duties by the municipality. District Attorney for the No. Dist. v. Board of Trustees of Leonard Morse Hospital, 389 Mass. 729 (1983) (whether board was "governmental body" required scrutiny of all the facts.); Harvard Square Defense Fund, Inc. v. Planning Board of Cambridge, 27 Mass. App. Ct. 491 (1998) (In the absence of any statutory or other basis in the record evidencing delegation of duties by the municipality, committee was not a municipal board); Attorney General v. Drohan, 169 Mass. 534 (1897) ("public officer" by virtue of exercise of some portion of the sovereign power); Bradley v. Board of Zoning Adjustment, 255 Mass. 160 (1926) (those charged with zoning duties are public officers.) There can be no doubt that the City of Boston has delegated to the JPNC authority for zoning matters in Jamaica Plain. The JPNC for more than 30 years has performed and continues to perform an integral role in Board of Appeal decisions for the Jamaica Plain Neighborhood District. Reiskind Aff., Paras. 3, 8-28. Article 55 of the Zoning Code, which sets out the zoning regulations for the Jamaica Plain Neighborhood District, makes this clear. Sections 55- 2 and 55-6 of Article 55 recognize that the article was "developed with extensive participation of the

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Jamaica Plain Neighborhood Council and its Zoning Committee" and provides in mandatory language for the JPNC's continuing role in advising the city. See Reiskind Aff., paras. 3, 8-28 As set out in the Reiskind affidavit, paras. 15-28, the JPNC performed a significant role in the actual drafting of Article 55, which provided for the codification in Article 55 of the regular practice of the City and the Board of Appeal requiring applicants to appear before the JPNC Zoning Committee prior to seeking relief before the Zoning Board of Appeal. Thus, given its recognition as a matter of law in Article 55 of the Code and the actual practice of the City, the BRA and the Board of Appeal for more than 25 years, the JPNC is, as a matter of fact, a "municipal board" within the meaning of the Zoning Code. Notwithstanding Defendants' contention (unsupported by any citation) that a board must possess both "powers" and "duties," courts considering this issue have not required both powers and duties. The issue simply is whether the municipal board or officer has "duties" to perform, not "powers." For example, in Planning Bd. of Marshfield v. Zoning Bd. of Appeals, 427 Mass 699, 702-03 (1998), the Appeals Court, in considering the analogous state statute, held that standing is reserved to "'municipal officer[s] or board[s]' that have duties to perform in relation to the building code or zoning." (Emphasis added.) In like manner, the Supreme Judicial Court has held that "duties," even those that are "remotely related" to zoning, are sufficient for standing purposes. See David v. Board of Appeals ofReading, 333 Mass. 657 (1956), in which the court held that the town's planning board met the requirements for standing under the analogous state zoning statute, because"[s]ome of the duties of the planning board are at least remotely related with matters fringing on zoning." Id. at 662. (Emphasis added.). Clearly, the JPNC's duties with respect to zoning are integral and not just "remotely related" to zoning matters in Jamaica Plain.

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But, even if Defendants are correct that both duties and powers are necessary, the JPNC, as the prime author of Article 55 performed an essential role in its enactment. The status of the JPNC as a recipient of a delegation of municipal duties and powers is confirmed by the language of Sections 55-2 and 55-6 of Article 55. The status of the JPNC as a recipient of a delegation of municipal power has been confirmed by the multi-year routine practice of the city and the Board of Appeal of requiring those seeking zoning variances to present their projects for review by the JPNC prior to appearing before the Board of Appeal. Such delegation is dispositive of the JPNC's status as a public rather than a private board. In Attorney General v. Drohan, 169 Mass. 534 (1897), the Supreme Judicial Court considered whether officers of the Democratic City Committee of Boston were public officials: Without attempting an exhaustive definition of what constitutes a "public office," we think that it is one whose duties are in their nature public; that is, involving in their performance the exercise of some portion of the sovereign power, whether great or small ... Id. at 535. (Emphasis added). Zoning is quintessentially public in nature. The JPNC's duties and responsibilities for zoning involve "the exercise of some portion of the sovereign power." The JPNC performs an integral role in the exercise of the approval power concerning zoning appeals over a significant portion of the City of Boston. The principle enunciated in Commonwealth v Drohan was later applied in the context of zoning in Bradley v. Board of Zoning Adjustment of City of Boston, 255 Mass. 160 (1926) in which the Court stated the following with respect to those charged with duties and responsibilities for zoning in Boston: The adoption of any such scheme of improvement for one of the oldest cities in the country must recognize to a large extent existing customs ... Changes in the boundaries of districts once established require the exercise

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of a high degree of practical wisdom. The members of any board charged with this important and delicate duty are public officers ... Id. at 166. (Emphasis Added). Due to the "important and delicate duty" entailed by zoning decisions, the Supreme Judicial Court stated: "A statute designed to secure men of eminent sagacity for the performance of these duties is entitled to every presumption in its favor." Id. at 166. (Emphasis Added). Defendants' heavy reliance on Harvard Square Defense Fund, Inc. v. Planning Board of Cambridge, 27 Mass. App. Ct. 491 (1989) is misplaced. In Harvard Square, multiple plaintiffs, including a corporation and 14 individuals, sought relief from a decision of the Planning Board granting special permits for a construction project in Harvard Square. Id. at 497, n. 1. Among the fourteen were two members of the Harvard Square Advisory Committee, an unincorporated association, which had supported the grant of the permits. Dissenting from the committee's position in favor of the permits, the two individuals, by virtue of their membership on the advisory committee, sought standing as "municipal officers," to seek an order of the court invalidating the permits. In holding that the two individuals lacked standing, the Court pointed out expressly that there was "limited information in the record" as to the status of the advisory committee, noting, in particular, that any municipal power the committee may have had pursuant to an ordinance establishing the committee, could not be considered because it was not in the record: Apparently, the advisory committee was established by a city ordinance which presumably enumerates the committee's purposes, duties, and powers, if any. However, the applicable ordinance was not made a part of the record below and we cannot take judicial notice of it now." Id. at 497, n. 11. Thus, there was nothing in the record before the Appeals Court suggesting that the advisory

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board was anything but a private organization. Although the Court in Harvard Square stated in dicta that it was "not convinced that an unincorporated citizens advisory group without traditional governmental powers is a municipal board," the Court concluded that it did not need to decide whether the committee itself was a municipal board because the committee was not a party to the case and, in fact, had voted to approve the subject permits. The Court based its holding that the two individuals lacked standing on the following: Ultimately, regardless of whether the advisory committee is a municipal body, because the two members who are parties to this suit are acting in their individual capacities, their status falls squarely within the Carr analysis stated above. The advisory committee's final report submitted to the planning board 'strongly encourage[d) development of the ... projects as proposed .... The two dissenting members have no independent standing in opposition to the committee vote. Id. at 497. The JPNC, in contrast, has been delegated municipal powers by the City of Boston, as set out in Article 55, and operates as a public entity, including holding public elections for its membership. See District Attorney
forth~

No. Dist. V. Board of Trustees of Leonard Morse

Hospital, 389 Mass. 729 (1983) (election of members is one factor to consider in evaluating whether a body is a governmental body). The JPNC holds public hearings on all zoning appeal matters in Jamaica Plain, and the city and the board of Appeal require those seeking variances to submit their projects to the JPNC's process before presenting them to the Board of Appeal. Unlike the committee and the limited information in the record in Harvard Square the facts before this court in the instant case show that the JPNC is the recipient of a delegation of municipal power sufficient to be granted status as a "municipal board" within the meaning of the Code with standing to litigate this case on the merits.

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D. Pursuant to Rule 23.2, and by Vote of the JPNC, Plaintiff, as Chairperson of the JPNC, is Authorized to Bring This Action On Behalf of the JPNC The Defendants final argument is that Plaintiff cannot bring this action in his representative capacity as Chairperson of the JPNC. Mass. R. Civ. P. 23.2, however, specifically provides for this procedural mechanism in order for an unincorporated association, which cannot be a party to a lawsuit, to assert its rights. The rule states, "An action brought by or against the members of an unincorporated association as representative parties may be maintained only if it appears that the representative party will fairly and adequately protect the interests ofthe association and its members." Clearly, then, the rule specifically provides for the representative role played here by the plaintiff, Chairperson ofthe JPNC. As alleged in the Amended Complaint (Amended Complaint, para. 7), the JPNC prior to initiating this action voted to authorize it, which demonstrates that the "representative party [is] fairly and adequately protect[ing] the interests of the association and its members." See Krueger v. Fraternity of Phi Gamma, 13 Mass.L.Rptr. 665 (Sup. Ct. 2001) (Unpublished decision), relying upon Cheever v. Graves, 32 Mass. App. Ct. 601, 604-605 (1992). There is no merit to Defendants' position.

4. Conclusion. For the foregoing reasons, Defendants' Motion to Dismiss should be denied.

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BENJAMIN DAY, in his representative capacity as Chairperson of the Jamaica Plain Neighborhood Council, plaintiff, By his attorney,
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Jeffrey Wiesn BBO No. 655814 Stem, Shapiro, Weissberg, Garin, LLP 90 Canal Street Boston, MA 02114 (617) 742-5800 jwiesner@sswg.com Dated: January 22, 2013

Certificate of Service I hereby certify that a true copy of the above document was served upon the attorney of record for each other party by hand on January 22,2013.

Jef ey

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wsn

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