Opinion
16-P-797
03-13-2017
Darol D. DUCA v. ZONING BOARD OF APPEALS OF SAUGUS.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Darol D. Duca, appeals from a judgment in favor of the zoning board of appeals (board) of Saugus (town) requiring Duca to seek a special permit to expand his existing veterinary practice to include pet kenneling, pet grooming, and pet day care services, and from an order denying his motion to amend the judgment. We affirm.
Background . The origins of this case date to May of 1992, when Duca sought to operate a veterinary clinic as a matter of right on property located in a limited use area. The board required him to apply for a special permit. Duca appealed pursuant to G. L. c. 40A, § 17. In June of 1999, the board and Duca entered into an agreement for judgment that provided "[Duca's] veterinary practice falls within the ‘Agriculture’ section of the Table Of Use And Parking Regulations under the Saugus Zoning By-law." The agreement stated that "[w]hen a definition is not specifically set forth in the Saugus Zoning By-law, Saugus, as a matter of interpretation of its Zoning By-law, uses the definition as set forth in the Standard Industrial Classification Manual [ (SIC manual) ] published by the U.S. Bureau of Census." Judgment for Duca entered the same day, permitting him to establish his veterinary practice as a matter of right.
According to the judge's findings, it is undisputed that "[t]he Property is zoned B-1 (Business 1) for a depth of one hundred (100) feet from Essex Street; the remainder of the property is zoned R-2 (Residential 2)."
Ten years later, in July of 2009, Duca applied to the town planning board to expand his facility to include a space for pet kenneling, grooming, and pet day care. The town building commissioner/zoning officer denied his application, stating that Duca needed a special permit for "Pet Care" under Section 4 within the "Retail Service—Commercial" portion of the table of uses (Section 4) of the zoning by-law, and a special permit to operate dog kennels under art. 12.5 of the by-law.
Duca subsequently appealed to the board. The board held a hearing and affirmed the building commissioner's decision. The board found that the 1999 agreement for judgment did not "lessen any requirements under the current zoning concerning a building being built on a lot with mixed zoning." The board concluded that the building commissioner was correct in requiring Duca to apply for a special permit under Section 4 and art. 12.5 and denied his appeal.
The board also found that the extent of Duca's proposed expansion was unclear because it had insufficient information to determine the "full intent of the projected use or the size of the planned expansion."
The by-law's Table of Uses lists agricultural use as a use for which no permit is required.
Duca appealed to the Superior Court pursuant to G. L. c. 40A, § 17, and moved for summary judgment. The motion judge concluded that the 1999 agreement for judgment precluded all challenges to Duca's right to conduct a veterinary practice on the property, and entered judgment for Duca as to his veterinary practice. However, the judge also concluded that pet kenneling, grooming, and pet day care were not "agriculture" within the meaning of G. L. c. 40A, § 3, or the zoning by-law. Moreover, the motion judge found that art. 12.5 of the zoning by-law required Duca to obtain a special permit to operate a pet kenneling, day care, and grooming business on the property.
The parties' joint statement of undisputed facts states that the by-law contains such a provision, in which agriculture is undefined, and that the by-law remained unchanged in all material respects.
Discussion . "[T]he reviewing court examines the allowance of summary judgment de novo." Albahari v. Zoning Bd. of Appeals of Brewster , 76 Mass. App. Ct. 245, 248 (2010), quoting from Poon v. Massachusetts Inst. of Technology , 74 Mass. App. Ct. 185, 194 (2009). "[A] judge who decides the case on motions for summary judgment engages in no fact finding at all. Instead, the judge looks at the record to determine whether there is any genuine issue of material fact and, if not, whether the evidence, viewed in the light most favorable to the nonmoving party, shows that the moving party is entitled to judgment as a matter of law" (footnote omitted). Albahari , supra , at 248-249.
Issue preclusion . Duca contends that the judge erred because he did not give full force and effect to the 1999 agreement for judgment which defined veterinary practice as an agricultural use, and required the board to look to the SIC manual to define terms not included in the town zoning by-law.
"The term res judicata describes doctrines by which a judgment has a binding effect in future actions. It comprises both claim preclusion (also known as merger and bar) and issue preclusion (also known as collateral estoppel)." Petrillo v. Zoning Bd. of Appeals of Cohasset , 65 Mass. App. Ct. 453, 456-457 (2006) (quotation omitted). See Jarosz v. Palmer , 436 Mass. 526, 530-531 n.3 (2002). Here we deal with issue preclusion.
In his brief Duca makes brief reference to merger and bar, but argues collateral estoppel, presumably because the new use postdates the prior judgment and could not have been merged into the prior judgment. See Larson v. Larson , 30 Mass. App. Ct. 418, 426 (1991).
"[I]ssue preclusion ‘prevents relitigation of an issue determined in an earlier action where the same issue arises in a later action, based on a different claim, between the same parties or their privies.’ " Petrillo , supra at 457, quoting from Heacock v. Heacock , 402 Mass. 21, 23 n.2 (1988). Issue preclusion applies when "(1) there was a final judgment on the merits in the prior adjudication; (2) the party against whom preclusion is asserted was a party (or in privity with a party) to the prior adjudication; and (3) the issue in the prior adjudication was identical to the issue in the current adjudication." Petrillo , supra , quoting from Tuper v. North Adams Ambulance Serv., Inc ., 428 Mass. 132, 134 (1998). "Additionally, the issue decided in the prior adjudication must have been essential to the earlier judgment[, and i]ssue preclusion can be used only to prevent relitigation of issues actually litigated in the prior action." Petrillo , supra at 458, quoting from Kobrin v. Board of Reg. in Med ., 444 Mass. 837, 844 (2005).
Duca has not met his burden of establishing the elements of issue preclusion. See Petrillo , supra . The issue in the 1992 action was whether Duca needed a special permit to conduct his veterinary practice in a business and residential zone. The issue here is whether Duca needs a special permit to provide pet kenneling, grooming, and day care services on a lot with mixed zoning. These are two distinct issues. There is nothing in the record to suggest that Duca litigated his right to provide pet kenneling, grooming, and pet day care as part of his veterinary services on his property in the 1992 action. Duca failed to show that "the issue in the prior adjudication was identical to the issue in the current adjudication." Id . at 457. Issue preclusion is inapplicable.
Special permit . Duca next contends that the newly-proposed uses are agricultural uses and that he is entitled to build as a matter of right. "We will uphold a zoning board's decision and that of the reviewing Superior Court ‘if a rational basis for the [decision] exists which is supported by the record.’ " Eastern Point, LLC v. Zoning Bd. of Appeals of Gloucester , 74 Mass. App. Ct. 481, 486 (2009), quoting from Davis v. Zoning Bd. of Chatham , 52 Mass. App. Ct. 349, 356 (2001). "Reviewing courts will interpret zoning by-laws ‘in accordance with ordinary principles of statutory construction, with some measure of deference given to the board's interpretation.’ " Eastern Point, LLC , supra , quoting from APT Asset Mgmt., Inc . v. Board of Appeals of Melrose , 50 Mass. App. Ct. 133, 138 (2000). See Petrillo , 65 Mass. App. Ct. at 460. "However, a measure of rational deference still requires meaningful review." Eastern Point, LLC , supra .
Duca maintains that pet kenneling, grooming, and pet day care are agricultural uses within the meaning of the zoning by-law. We agree as to pet kenneling and grooming. The town zoning by-law does not define agriculture, but states in art. 3.1 that "[u]ses listed in the Table of Use Regulations under the classes Retail Service—Comm. and Wholesale Transportation and Industrial shall be further defined by [the SIC manual] published by the U.S. Bureau of the Census." The SIC manual defines "agriculture" to include boarding, kenneling, and grooming.
The parties argued that pet care is not defined in the by-law or the SIC manual. The judge construed the term "pet care" or pet day care according to the rules of statutory construction, and concluded that it was not agriculture. We need not separately decide how to treat pet care under the by-law because, even if pet care is an agricultural use under the by-law, it is not, for the reasons stated below, an agricultural use exempted from special permit requirements by G. L. c. 40A, § 3.
The analysis does not end there, however. Although the by-law treats an agricultural use as a use of right, art. 12.5 of the by-law requires a special permit for dog kennels and private stables, among other things. We construe a by-law as we would a statute. See Eastern Point, LLC , 74 Mass. App. Ct. at 486. "[T]o the extent a conflict between two statutes exists, the more specific statute controls over the more general one." Planning Bd. of Hingham v. Hingham Campus, LLC , 438 Mass. 364, 367 (2003) (quotation omitted). Here, art. 12.5, the more specific by-law, controls.
Duca argues, by implication, that this result is impermissible because G. L. c. 40A, § 3, which provides in relevant part that no zoning ordinance or by-law shall "unreasonably regulate, or require a special permit for the use of land for the primary purpose of commercial agriculture," prohibits requiring a special permit for an agricultural use. The definition of agricultural use under the statute and the by-law are not the same, however. Commercial dog kenneling, pet day care, and grooming are not agriculture uses within the meaning of G. L. c. 40A, § 3. See Tanner v. Board of Appeals of Boxford , 61 Mass. App. Ct. 647, 652 (2004). "[T]he boarding, grooming, and training of dogs not owned or kept as breeding stock by the defendant are not agricultural uses, because these activities are not an integral part of the breeding or raising of dogs." Sturbridge v. McDowell , 35 Mass. App. Ct. 924, 926 (1993). Therefore, while pet kenneling and grooming may be considered "agriculture" for purposes of the by-law, they are not considered agriculture for purposes of G. L. c. 40A, § 3. The special permit requirement under art. 12.5 of the by-law is therefore valid and enforceable.
Duca filed a motion to amend seeking reconsideration "pursuant to Mass.R.Civ.P. 52(b), 59(e), and Superior Court Rule 9E." For the same reasons, the judge did not err in denying the motion to amend.
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Judgment affirmed .
Order denying motion to amend judgment affirmed .