Opinion
14-P-481
03-02-2015
MARIO A. IANNUCCILLO, JR., trustee v. ZONING BOARD OF APPEALS OF SALISBURY & others.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008). MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff is the trustee of the trust that currently owns the lot at issue, a rectangular parcel of oceanfront land in Salisbury that totals some 7,500 square feet in size (approximately one-sixth of an acre). Similar to the other oceanfront parcels in the area, the lot is thin in shape (some fifty feet wide and 150 feet deep), with the long dimension running from Atlantic Avenue to the ocean. Despite the size and shape of the parcel, historically, there were two structures there: a larger structure that included three dwelling units on the ocean side of the property, and a smaller structure (known as the "Sunday cottage") on the street side.
In October of 1991, the storm that since has become known as "the Perfect Storm" caused damage to both structures, especially to the one on the ocean side. In 1993, the town of Salisbury (town) zoning board of appeals (ZBA) granted the plaintiff (owner) permission to replace the larger structure with a new one. The new structure would include three units, as before, albeit in a different configuration. In addition, the new structure would be built on pilings and it would include two stories instead of one.
The ZBA's approval spawned four separate pieces of litigation. The current appeal has to do with the town's building inspector's 1997 decision to revoke the building permit for the project based on alleged misrepresentations that the owner had made with respect to the availability of on-site parking. In the owner's challenge to the ZBA's affirming the building inspector's action, a Superior Court judge issued a split ruling after trial reinstating the building permit, while declaring that the owner simultaneously had to provide a level of on-site parking, which all parties appear to agree the owner cannot meet. On cross appeals from the amended judgment by the owner and defendants-intervenors Michael Kobos and Donald Egan (southern abutters), we determine that the revocation of the building permit must be upheld.
The owner appealed the declaration that he had to comply with the parking requirement, while the southern abutters appealed the reinstatement of the building permit. Although the ZBA essentially agrees with the southern abutters' position that the building permit was properly revoked, it did not file its own appeal because it recognized that the judgment's requiring the owner to comply with the parking requirements effectively prevented the owner from going forward with the approved project (in the words of the ZBA, the judge "arrived at the same destination as the Board did, though by a different route").
Background. The 1992 variance application. The lot was apparently at all times zoned for high density residential use. Under that classification, on-site parking was required at a rate of two parking spaces per residential unit. Historically, occupants of the four units would park in the area lying between the two structures. After the 1991 storm, the owner initially sought a variance for his project pursuant to G. L. c. 40A, § 10, and the corresponding provision in the town by-law. Under that application, filed in 1992, parking for six cars was shown in two locations: four designated spaces underneath the deck of the new larger structure, and two spaces between the Sunday cottage and the abutting property to the north. After the abutters to the north raised strenuous objections to the variance application, the owner withdrew it.
The factual recitation is drawn from the judge's findings (none of which any party has demonstrated to be clearly erroneous), supplemented by the documentary record. See Estate of Moretti, 69 Mass. App. Ct. 642, 645 (2007).
The 1993 application. In 1993, the owner refiled for permission under a different provision of c. 40A and the zoning by-law. Specifically, the owner sought a finding pursuant to G. L. c. 40A, § 6, that his project extending or altering a preexisting nonconforming structure "is not substantially more detrimental than the existing nonconforming structure to the neighborhood." The plans submitted with the 1993 application did not specifically show where there would be on-site parking. However, as the trial judge found, at a hearing held on the owner's application, the son of the owner "specifically stated that the project would include parking 'underneath for two cars per unit.'" The ZBA issued the requested finding and approval on July 8, 1993.
The minutes were produced from tape recordings of the hearings. We disagree with the owner's argument that Building Inspector of Chatham v. Kendrick, 17 Mass. App. Ct. 928, 931 (1983), precluded the trial judge from crediting that the statements set forth in the minutes were made. We also note that the owner's son, who testified at trial, acknowledged that parking was discussed at the 1993 hearing, while denying that he made the specific statement attributed to him. The judge did not credit that denial.
T he 1995 agreement for judgment. On August 3, 1993, the abutters to the north brought a Superior Court action challenging the ZBA's approval. The ZBA was a party to that litigation, but chose not to play an active role in it (instead largely deferring to the owner to defend its approval). On October 27, 1995, that litigation was settled through the filing of an agreement for judgment signed by the owner and the northern abutters. The most significant changes to the project resulting from the agreement were: (1) that the height of the pilings would be reduced to six feet (and the overall height of the new structure reduced), and (2) that the edge of the new structure would be pulled back from the northern property boundary. The ZBA was not a signatory to the agreement for judgment, but the town building inspector (who formerly was the chairman of the ZBA) participated in the negotiations and reviewed whether the agreed-to changes to the project were consistent with the zoning by-law. He represented to the judge to whom the agreement for judgment was presented that the mandated changes did not violate the by-law. At that time, the building inspector understood that the reduction of the height of the pilings would prevent parking under the new structure.
The DEP approval. Unbeknownst to the building inspector at the time he blessed the agreement for judgment, there had been a separate development just two weeks earlier that created independent limitations on parking at the site. On October 13, 1995, the State Department of Environmental Protection (DEP), acting pursuant to G. L. c. 131, § 40, issued a final superseding order of conditions regarding the owner's project. In addition to prohibiting any parking underneath the new structure, the DEP order prohibited paved parking areas anywhere at the site, and it prohibited any parking on the "primary coastal dune" there. The order appears to contemplate some on-site parking in a "hard pack" area of the site, because it required the owner to construct a certain kind of fence "[f]or purposes of delineating the parking area" there.
The town conservation commission had issued an order of conditions for the project and the northern abutters had appealed to DEP. The final order of conditions issued by DEP was consented to by both the owner and the northern abutters.
Initial refusal to revoke. The owner revised his plans to reflect the changes made in the agreement for judgment, and on February 8, 1996, the building inspector issued the owner a building permit based on those revised plans. On March 4, 1996, the southern abutters requested that the building inspector revoke the permit. When he refused, they appealed his decision to the ZBA. The minutes from the ZBA hearing on that appeal reflect that there was extensive discussion regarding the issue of on-site parking. Counsel for the owner stated that his client's plans provided for six parking spaces at the site, prompting counsel for the southern abutters to propose that the ZBA require the elimination of one of the dwelling units in order to meet the two spaces per unit requirement. The ZBA declined to do so and -- based on advice of counsel that the ZBA was bound by the 1995 agreement for judgment -- it upheld the building inspector's refusal to revoke the building permit.
The 1997 Superior Court action. The southern abutters brought an action in Superior Court seeking to invalidate the 1995 agreement for judgment. That action alleged, inter alia, that the agreement for judgment improperly had relieved the owner from complying with the on-site parking requirement. A judge dismissed that action on the grounds that the southern abutters themselves were bound by the settlement that resolved the action brought by the northern abutters. On appeal, this court upheld the dismissal of the collateral attack on the agreement for judgment in an unpublished opinion. See Kobos v. Iannuccillo, 48 Mass. App. Ct. 1107 (1999). Notably, we concluded that "[i]n any event, we do not view the conditions set out in the agreed-upon judgment as ones . . . which would have had any effect on the number of off-street parking spaces, the principal thrust of the plaintiffs' challenge to the prior judgment."
The southern abutters independently brought a Land Court action appealing the ZBA's affirmance of the building inspector's decision not to revoke the building permit. All parties agree that this action became moot once the building inspector reversed course. Whether that long-abandoned action was ever formally dismissed is at this stage beside the point.
The 1997 revocation. Meanwhile, the southern abutters learned of the DEP order some time in May of 1996. They subsequently brought this to the attention of the building inspector asserting that it showed that the owner had misrepresented the availability of on-site parking. The building inspector agreed and revoked the building permit on September 3, 1997. In appealing that decision to the ZBA, the owner took the position that the prior "description of parking" that had been given to the ZBA on the owner's behalf was something that was merely "desirable to the applicants, not necessary under the Bylaw." According to the owner, the on-site parking requirement did not apply to the owner's project. In terms of what the owner would do about parking, he represented that "[p]arking after construction would be the same as it existed for the life of the damaged structures." The ZBA upheld the building inspector's decision to revoke the permit on October 30, 1997, prompting the current action.
What on-site parking is available. As noted, DEP expressly prohibited parking in the area of the primary dune, and there can be no on-site parking underneath the new proposed structure. At trial, the parties did not develop the extent to which parking was physically possible and lawfully allowed in the remaining space at the site. This prompted the judge to press both sides during closing argument as to what their understanding of that question was. The southern abutters took the position that the DEP order meant that so long as the Sunday cottage remained in place, there were no remaining areas where cars could be parked on-site. The ZBA seemed to agree that because of the DEP order, the Sunday cottage needed to be removed to provide adequate parking. For his part, the owner did not concede that the DEP order effectively prohibited parking at the site, but he was unable to set forth how much parking was allowed under the DEP order. The owner's counsel stated that, after looking at the prohibitions in the DEP order "numerous times," and having "spoken frankly to the building inspector of Salisbury, nobody knows exactly what that means." Then, while apparently pointing to the space remaining between the Sunday cottage and the proposed new structure, he stated his understanding that there could be parking there, just not "official spaces." He explained that:
"[T]he difference . . . [i]s that obviously you're going to have people boxed in and you'd have to move in and out and so on and so forth. Any how many spaces are there? We don't really know because the dune moves as to what DEP says the dune is . . . [s]o, sometimes it's really big, sometimes it's small."
Entry of judgment and the docketing of the appeal. The trial took place over two days in February of 2002. In October of 2002, the trial judge issued the split ruling described above (concluding on the one hand that the building inspector erred in revoking the building permit, while on the other that the owner had to comply with the two parking spaces per unit requirement). In issuing his order, he invited the parties to confer on the form of a judgment. For reasons not explained on the record, the case lay dormant for three years, then after judgment was entered and modified in 2005, it lay dormant for another three years. In 2008, the judgment was modified again to its current form and the owner and southern abutters filed their cross appeals. For reasons again not explained on the record, it was another six years before the appellate record was assembled. The appeal was docketed on April 2, 2014.
Discussion. The southern abutters argue that by now having torn down the larger structure, the owner in any event has forfeited the right to construct his project pursuant to G. L. c. 40A, § 6. Under the circumstances of this case, we disagree. The ZBA did not revoke the building permit until 1997, and the owner up until that point had a solid basis for thinking he could move forward. He was not required to leave his severely damaged structure exposed to the elements in order to preserve his rights to rebuild the structure pursuant to § 6.
Of course, whether § 6 was the proper vehicle for the owner's construction plans is a separate question, but having lost the 1997 litigation, the southern abutters are foreclosed from litigating that issue.
Further, while the southern abutters continue to argue that they should not be bound by the terms of the 1995 agreement for judgment, such arguments are foreclosed to them (the matter having been fully litigated). However, the fact that they (and the ZBA) are bound by the terms of the agreement for judgment does not by itself resolve the question of whether the ZBA had grounds in 1997 to revoke the permit. Although the building inspector knew at the time the agreement for judgment was signed that the lowering of the pilings meant that cars could not be parked underneath the new structure, this precluded adequate on-site parking only to the extent that there was not suitable space for parking elsewhere at the site (something not addressed in the agreement for judgment). Moreover, the discussions that took place at the initial revocation proceedings almost seven months after the agreement for judgment was executed reveal that ZBA officials still understood -- based at least in part on affirmative representations by the owner -- that the owner largely could comply with the on-site parking requirements (albeit with six spaces, not the full eight). It was only after the building inspector learned of the DEP order that the true precariousness of the parking situation came to light, and it was only after that that the building inspector revoked the permit.
This explains our observation, included in the unpublished decision affirming the dismissal of the collateral attack on the agreement for judgment, that that agreement would not "have had any effect on the number of off-street parking spaces."
As the judge pointed out, there was "no evidence" that the building inspector, ZBA, or anyone other than the owner, northern abutters and DEP knew about the DEP superseding order of conditions when the agreement for judgment was executed. Exactly when the building inspector or ZBA learned of the DEP order is not clear. Kobos testified without contradiction that when he eventually showed the DEP order to the building inspector, the inspector was "completely shocked," and "[h]e indicated he had no knowledge whatsoever of the DEP parking prohibition." The judge expressed his view that "[i]t is difficult to imagine" that the ZBA was unaware of the DEP order when it held a hearing in 1996 on the southern abutters' initial request to revoke the building permit. Putting aside the speculative nature of that observation, the minutes of the 1996 hearing make plain that the owner at that point still was affirmatively representing that six cars could be parked on site. Exactly when the ZBA first learned of the existence of the DEP order is in the end not determinative.
Of course, as the owner points out, he could not have brought the DEP order to the ZBA's attention in 1993, because it was not issued until two years later. However, the fact remains that -- as the wetlands process unfolded -- the owner continued assurances to the ZBA that on-site parking could be provided at, or at least near, the levels required by the by-law proved inaccurate and therefore in that sense constituted "misinformation." Because judges are to affirm a decision of the ZBA unless "it is based on a legally untenable ground" or is "unreasonable, whimsical, capricious or arbitrary," Roberts v. Southwestern Bell Mobile Sys. Inc., 429 Mass. 478, 486 (1999), we conclude that the judge erred in invalidating the ZBA's revocation decision and in attempting to fashion his own remedy to accommodate the ZBA's legitimate parking concerns. We need not decide whether the judge erred in concluding that the parking requirements were somehow independently enforceable.
We deny the owner's request for costs and attorney's fees.
Conclusion. For the reasons set forth above, we vacate the amended judgment dated March 17, 2008, and remand the matter to the Superior Court for entry of a judgment affirming the ZBA's 1997 decision affirming the decision of the building inspector to revoke the building permit.
So orderd.
By the Court (Rubin, Milkey & Carhart, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: March 2, 2015.