Opinion
09-P-484
04-06-2012
KERRY CALDON & others v. ZONING BOARD OF APPEALS OF OAK BLUFFS & others.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This appeal arises from a lengthy and vituperative zoning dispute in the town of Oak Bluffs (town). While the process has been convoluted, the issue on appeal is simple -- whether a judge of the Superior Court can hold a zoning board of appeals in contempt for violating an order. We answer in the affirmative and uphold the judgment.
Background. The plaintiffs (Caldons) obtained a permit to build a detached garage on their property. Their neighbors and direct abutters (Roldes) intervened, and requested that the town building inspector take enforcement action against the Caldons on the basis that the garage was improperly configured for residential use. The building inspector declined to take enforcement action. Multiple hearings before the town's zoning board of appeals (ZBA) and before the town's planning board, all of which concluded with results favorable to the Caldons, ensued. The Roldes sought review by filing an action in the Superior Court, which led to a stipulated order that the ZBA hold a noticed hearing on the merits of the Roldes' appeal within sixty days. It is uncontested that the ZBA failed to do so. The Roldes subsequently filed a complaint for contempt, and the judge held the ZBA in contempt. The ZBA now appeals.
As it turned out, the town's zoning board of appeals ultimately concluded that construction of the garage was violative of the Martha's Vineyard coastal district regulations.
Discussion. The ZBA argues that contempt was not the proper avenue of redress both because G. L. c. 40A, § 15, provides for the alternative and exclusive remedy of a constructive grant under these circumstances, and because the Roldes eventually won their case for enforcement. We disagree with both contentions, and affirm the judgment.
The availability of a constructive grant. The ZBA is correct in asserting that G. L. c. 40A, § 15, provides for a constructive grant should the ZBA not act within one hundred days from the date of the filing of an appeal. A constructive grant is normally operative when a licensing or permitting authority fails to act on an application. While it can also apply in a situation such as this case, where the failure to act relates to an objection to a permit, it does not supplant the inherent power of a court to compel enforcement of its orders through civil contempt. See New England Novelty Co. v. Sandberg, 315 Mass. 739, cert. denied, 323 U.S. 740, 746 (1944) (stating court has inherent contempt power to secure justice). A constructive grant, where applicable, does not require the additional issuance of a court order. Here both the expiration of the time period required for a constructive grant and the failure to comply with an order were arguably present; remedies for each breach were thus available.
Unlike a constructive grant authorizing property owners to act according to their wishes, invoking a constructive grant against a board which has previously refused to take enforcement action is essentially equivalent to a mandatory injunction created by a statute and entered by default.
In this context the ZBA has also argued that the Roldes' proper remedy was another appeal, and not a complaint for contempt. The basis for this argument seems to be that the Roldes complained of contempt after a ZBA decision that was subsequent to the sixty day order. However, the court rendering the original order does not lose its inherent contempt power simply because a party may also later seek judicial review of a subsequent ZBA decision.
Compensatory remedy for civil contempt. The ZBA also argues that the judge erred in holding it in contempt because the Roldes were subsequently granted the relief they sought. It is permissible for a court to utilize contempt as a compensatory mechanism. See Allen v. School Comm. of Boston, 400 Mass. 193, 195 (1987). See also Manchester v. Department of Envtl. Quality Engr., 381 Mass. 208, 213 (1980). In the present case, the Roldes' submitted documentation and affidavits relating to the legal fees they incurred as a result of the ZBA's contempt, and the judge, after analyzing the evidence, adjusted the requested amount and awarded compensation. There was no error.
Conclusion. '[I]n order to find a defendant in civil contempt there must be a clear and unequivocal command and an equally clear and undoubted disobedience.' Larson v. Larson, 28 Mass. App. Ct. 338, 340 (1990). The sixty day order was a clear and unequivocal command and the judge did not abuse his discretion in holding the ZBA in contempt for its failure to comply. Judge Rotenberg Educ. Center, Inc. v. Commissioner of the Dept. of Mental Retardation, 424 Mass. 430, 443 (1997) ('[T]he judge's ultimate conclusion on the contempt finding is reviewed under the abuse of discretion standard').
The Roldes may submit a petition for appellate attorney's fees to this court in the manner prescribed in Fabre v. Walton, 441 Mass. 9, 10-11 (2004), within twenty days of the date of the rescript. The ZBA may respond to the petition within twenty days of said filing.
Judgment affirmed.
By the Court (Vuono, Grainger & Carhart, JJ.),