Opinion
14-P-299
01-12-2015
JOHN BARTH v. CITY OF PEABODY.
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
John Barth appeals from a Superior Court decision allowing summary judgment in favor of the defendant Peabody. We affirm.
Background. Based upon the record, the following facts are not in dispute. On February 14, 2011, Peabody notified the owner of the locus which is the subject of this appeal that the structure located thereon, which had been there since the early 1800s, was unsafe. On April 8, 2011, Peabody demolished the structure. No structure has been on the locus since then.
On September 14, 2011, Barth purchased the property. At that time, Peabody's zoning bylaws rendered the lot unbuildable. On October 13, 2011, Barth applied for a variance to build a new home on the lot. In July, 2012, the variance was denied by Peabody's zoning board of appeals (ZBA). Barth did not appeal this decision.
Instead, on August 2, 2012, Barth filed suit in Superior Court. The first sentence of his complaint, labeled "Appeal and Petition for Assessment and Award of Damages for Taking of Property," stated: "This is an Appeal from a decision of the Zoning Board of Appeals of the City of Peabody to deny a zoning variance for replacement of a home built in 1800 and demolished in 2011. . . ." The complaint sought damages under G. L. c. 79, and G. L. c. 12, § 11H, et seq., for an allegedly unlawful taking of the property by Peabody and for denial of equal protection of the laws. The ZBA was not named as a defendant. Barth's subsequent motions for judgment on the pleadings and summary judgment were denied. On February 6, 2014, Peabody's motion for summary judgment was allowed and Barth's complaint was dismissed.
Discussion. We review a grant of summary judgment de novo, Miller v. Cotter, 448 Mass. 671, 676 (2007), and look to the summary judgment record to determine "whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to judgment as a matter of law." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991).
Our zoning laws allow "[a]ny person aggrieved by a decision of the [zoning] board of appeals" to appeal that decision "by bringing an action within twenty days after the decision has been filed in the office of the city or town clerk." G. L. c. 40A, § 17, first par., as amended by St. 2002, c. 393, § 2. A judge hearing such an appeal "shall hear all evidence pertinent to the authority of the board . . . and determine the facts, and, upon the facts so determined, annul such decision if found to exceed the authority of such board. . . ." Id. at second par. This remedy "shall be exclusive." Ibid.
It is well-settled that we "require[] the exhaustion of administrative remedies as a prerequisite to judicial review." Quincy v. Planning Bd. of Tewksbury, 39 Mass. App. Ct. 17, 20 (1995). "Within the zoning context . . ., principles of exhaustion require that a person aggrieved by the action of a local zoning administrator . . . must first attempt to redress the grievance through the local board of appeals before seeking judicial review." Ibid. It is undisputed that Barth did not appeal the ZBA's denial of his request for a variance; therefore, "the complaint was rightly dismissed because the Superior Court [was] without jurisdiction to entertain an appeal from a decision of a board of appeals." O'Blenes v. Zoning Bd. of Appeals of Lynn, 397 Mass. 555, 558 (1986).
It matters not that Barth proceeded pro se. "Pro se litigants are held to the same standards as practicing attorneys," Jackson v. Commonwealth, 430 Mass. 260, 264 (1999), cert. denied, 528 U.S. 1194 (2000), and the right of self- representation "is not a license not to comply with relevant rules of procedural and substantive law." International Fid. Ins. Co. v. Wilson, 387 Mass. 841, 847 (1983). We need not address Barth's bare assertions in his brief that appeal of the ZBA's decision is not a prerequisite to filing suit under the Federal and State Constitutions, as they do not rise to the level of appellate argument. Commonwealth v. McCants, 25 Mass. App. Ct. 735, 742 (1988). See Mass.R.A.P. 16(a)(4), 430 Mass. 1999, as amended, 403 Mass. 1101 (1988).
Peabody has asked for sanctions pursuant to Mass.R.A.P. 25, as appearing in 376 Mass. 949 (1974), arguing that this appeal is frivolous. Although this appeal appears to be close to frivolous, we decline to award sanctions.
Judgment affirmed.
By the Court (Trainor, Grainger & Carhart, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: January 12, 2015.