Opinion
16-P-222
06-09-2017
Lisa JACOBS v. BOARD OF APPEALS OF WESTON & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In seven separate Land Court complaints, the plaintiff, Lisa Jacobs, unsuccessfully challenged the denial of her appeal of a building permit and an amended building permit issued to Cormier Home Construction LLP (Cormier) by the board of appeals of Weston (the board). In thoughtful and well-reasoned memoranda and orders, the Land Court judge dismissed Jacobs's claims and entered judgments for the defendants. This is Jacobs's consolidated appeal from the various judgments. We affirm, with a modification to one of the orders.
Jacobs stipulated that the town, the board, and Cormier were the true defendants in the several complaints notwithstanding her inclusion of several other individuals.
Background. The seven cases were heard either on motions to dismiss or motions for summary judgment. With respect to those motions heard under Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), we consider the allegations of the verified complaint, accepting those allegations as true. Polay v. McMahon, 468 Mass. 379, 382 (2014). With respect to the motions decided under Mass.R.Civ.P. 56, 365 Mass. 824 (1974), we review the grant of summary judgment de novo "to determine ‘whether, viewing the evidence in the light most favorable to the [plaintiff], all material facts have been established and the [defendants are] entitled to a judgment as a matter of law.’ " Pinti v. Emigrant Mort. Co., 472 Mass. 226, 231 (2015), quoting from Juliano v. Simpson, 461 Mass. 527, 529-530 (2012).
The procedural background is undisputed in material respects. Jacobs resides in a home owned by her mother on Colchester Road in Weston. Cormier purchased the property with a single family home (property) across the street from Jacobs's residence. Cormier obtained a permit to demolish the existing home and to construct a new home in its place. The town issued a building permit for a two and one-half story single family home with a total residential gross floor area of 4,650 square feet. Shortly thereafter, Jacobs challenged the total residential gross floor area calculations, as well as the height of the building, and requested zoning enforcement. The building inspector denied the request. Jacobs appealed to the board. The board held a public hearing and voted to deny Jacobs's appeal.
Thereafter, the town approved an amended building permit to allow the inclusion of two dormers in the unfinished attic. Jacobs again sought enforcement from the building inspector, who denied her request. She appealed. See note 5, infra.
Discussion. For the most part, Jacobs's arguments are inchoate, unsupported by any legal citation or citation to her record appendix, and thus do not rise to the level of appellate argument. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975) (appellant's brief must set forth "[t]he argument, which shall contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on"). For this reason alone the appeal could be dismissed. See Tynan v. Attorney Gen., 453 Mass. 1005, 1005 (2009). Nevertheless, we have carefully reviewed Jacobs's filings and the Land Court judge's decisions, and address the substance of her arguments (to the extent that we can discern them) as follows.
1. Land Court No. 15 MISC 000142. In April of 2015, Jacobs filed her first complaint in the Land Court. In the amended verified complaint, she claimed that her appeal of the issuance of the building permit had been constructively granted (count one); that the building permit was issued in violation of the town's zoning by-law (count two); that the board erred in denying her appeal (count three); and that one of the relevant provisions of the zoning by-law should be held invalid (count four). On the defendants' motion to dismiss, the judge ordered count one dismissed with prejudice, entered summary judgment for the defendants on counts two and three (see note 3, infra ), and dismissed count four without prejudice to refiling by Jacobs's mother, the true owner of the house in which Jacobs lived.
On appeal, Jacobs does not assert that the judge erred in dismissing counts one and four. These arguments are therefore waived. See Zoning Bd. of Appeals of Lunenburg v. Housing Appeals Comm., 464 Mass. 38, 55 (2013). Jacobs does continue to press her claim that the building permit was issued in error and that her appeal should not have been dismissed. We therefore summarize the facts in the light most favorable to Jacobs to discern whether there was any dispute of material fact that would preclude the entry of summary judgment against her.
With respect to counts two and three, the judge converted the defendants' motion to dismiss on jurisdictional grounds, see rule 12(b)(1), to a motion for summary judgment, and granted summary judgment to the defendants.
We review the facts stated in the amended verified complaint, the statements of undisputed fact, and the procedural posture of the litigation, as they are relevant to various issues on appeal. The town's zoning by-law permits construction of a single family residential home with a residential gross floor area of no more than "3,500 square feet or 10% of the lot area up to a maximum of 6,000 s.f." The board found that the house contained 4,650 square feet, which is slightly less than ten percent of the lot area (46,506 square feet). The board, pursuant to the by-law, did not include the unfinished attic in its calculation of the residential gross floor area. Jacobs argued that the attic could be finished and should be included, which would result in a residential gross floor area in excess of the total allowed by the by-law.
The town's zoning by-law also requires that single family homes have no more than two and one-half floors and be no more than thirty-seven feet high. Jacobs further contends that the house exceeds thirty-seven feet in height and that the attic constitutes a third floor. The board concluded that the height of the house, pursuant to the plans, was less than thirty-six feet from average natural grade. Jacobs contends that the roof ridge line is more than thirty-seven feet from the natural grade and that the attic constitutes a full third level in violation of the zoning by-law. The board denied her appeal on the basis that the house conformed to the zoning requirements.
It is undisputed that Jacobs timely filed her first complaint in the Land Court challenging the board's written decision regarding the initial permit. However, the town denied timely receiving notice of the action and a copy of the complaint as required by the statute, and moved to dismiss the appeal to the Land Court.
To pursue an appeal of the board's decision, Jacobs was required by statute to file her action in the Land Court and to give notice of the action with a copy of the complaint to the "town clerk so as to be received within such twenty days." G. L. c. 40A, § 17, as amended by St. 2002, c. 393, § 2. In support of their motion, the board and the town submitted affidavits from town officials stating that they did not receive notice or the complaint until they were served by the sheriff on May 4, 2015, twenty-eight days after the board filed its written decision.
We treat as true Jacobs's sworn representation that she mailed the notice and a copy of the complaint via regular mail on April 24, 2015, eighteen days after the decision was filed. However, mailing the document to the clerk and filing the document with the clerk are distinct concepts. See Garrett v. Director of Div. of Employment Sec., 394 Mass. 417, 420 (1985). Timely receipt of notice of the action by the town clerk is an unyielding prerequisite to pursuing an appeal under G. L. c. 40A, § 17. Bingham v. City Council of Fitchburg, 52 Mass. App. Ct. 566, 568 (2001). In this case, Jacobs offered no evidence that the town clerk timely received notice notwithstanding the fact that she mailed the notice and copy of the complaint two days prior to the expiration of the deadline. The clerk provided an affidavit stating that the document was not received. There was no dispute of material fact, and summary judgment on counts two and three was appropriate. See Bell v. Zoning Bd. of Appeals of Gloucester, 429 Mass. 551, 555 (1999).
In her reply brief in this court, Jacobs claims that she was told by a town employee that her mailing was received, but that instructions were given to claim it was not. In order to defeat a motion for summary judgment, Jacobs was required to provide competent evidence of this assertion to the judge. The statement attributed to the town employee was hearsay, and in the absence of an affidavit from the employee, there was no evidence that the mailing was received. See Madsen v. Erwin, 395 Mass. 715, 721 (1985) ("Hearsay in an affidavit is unacceptable to defeat summary judgment").
2. Land Court Nos. 15 MISC 000196, 000197, and 000198. In May of 2015, Jacobs filed three additional complaints, later consolidated, challenging the issuance of the original and amended building permit. The amended building permit allowed the addition of two dormers. The defendants moved for summary judgment, which was allowed.
After the building inspector declined to take enforcement action, Jacobs attempted to file an appeal from the issuance of the amended building permit; however, the town returned her approximately 500-page filing because she had altered the form and failed to provide a clear description of the relief sought. Nevertheless, the judge reviewed the propriety of the issuance of the amended building permit.
The judge concluded that the entry of judgment in the first case (No. 15 MISC 000142) barred further consideration of the original permit on the grounds of res judicata. See Bagley v. Moxley, 407 Mass. 633, 636-639 (1990). Accordingly, he limited consideration of the pending motions to the propriety of the amendment to the building permit, i.e., the addition of the two dormers.
Viewing the evidence in the light most favorable to her, we conclude that Jacobs has failed to demonstrate a dispute of material fact or error of law with respect to the amended permit. There is no evidence to suggest that the addition of the dormers increased the height or habitability of the attic. Interior access to the dormers is limited to a three-foot high passageway; the dormers are "strictly ornamental." The photographs submitted by the defendants plainly show that the dormers are installed below the highest point in the roof, and that various beams limit access to the dormer area. Likewise the interior photographs of the attic demonstrate that the addition of the dormers did not alter the unfinished character of the attic space. Jacobs points to no admissible evidence to the contrary. Therefore, the defendants were entitled to summary judgment on Jacobs's claims pertaining to the amended building permit as a matter of law.
3. Land Court Nos. 16 MISC 000011 and 000012. Jacobs filed two additional complaints that were ultimately dismissed based on the judgments entered in the preceding cases. We have reviewed those complaints, and concur that they involved the same permits and that the judgments in the four previous cases barred further relitigation.
Jacobs also moved to recuse the judge in the cases discussed herein. The judge applied the two-part test in Lena v. Commonwealth, 369 Mass. 571, 575-576 (1976), and denied the motions. We see no abuse of discretion.
4. Land Court No. 16 MISC 000139. The judge dismissed the complaint in no. 16 MISC 000139 on the basis that it "seeks the same relief that was sought in the previous complaints.... Given that the six previous complaints have been dismissed, the administration of justice will not be served by allowing this case to go forward." There was no error in barring Jacobs from attempting to relitigate issues previously decided by filing a new complaint covering the same facts, and repeating the same claims as her previously-resolved complaints. See ibid.
5. Limited-filing order. In nos. 15 MISC 000142, 000196, 000197, and 000198, the judge entered the following order: "any paper or pleading of any sort sought to be filed by [Jacobs] in any current or future civil action in the Land Court must be screened and approved for filing by a justice of the Land Court." In nos. 16 MISC 000011 and 000012, the judge ordered Jacobs "not to file any other pleadings or other papers in this action ... without the permission of this court, except that [Jacobs] may file a timely notice of appeal." In no. 16 MISC 000139, the judge "permanently enjoined [Jacobs] from filing any complaint or other pleading in the Land Court or other pleading in the Land Court concerning" Cormier, the property, the building permit or amended building permit, or "any actions taken by any official or board of the Town of Weston with respect to the Property or Cormier, without permission of the Land Court."
A judge is permitted to enter a limited-filing order. See Watson v. Walker, 455 Mass. 1004, 1005 (2009). The judge must, among other things, consider whether less restrictive methods could effectively restrain the litigant from making frivolous filings. See Brookline v. Goldstein, 388 Mass. 443, 448-449 (1983). See also Afrasiabi v. Commonwealth, 477 Mass. 1001, 1002 (2017) ("[W]e now place [the litigant] on notice that any subsequent attempt to seek relief from this court ... that suffers from like deficiencies may result in action by the court, including restriction of future filings"). Although the judge explicitly addressed the appropriate factors only in no. 16 MISC 000139, we are confident, after a thorough review of the pleadings filed in the Land Court and on appeal, that the judge properly considered the appropriate factors, and that less restrictive orders would not be effective.
6. Filing and court fees. In the memorandum and order in nos. 16 MISC 000011 and 000012, the judge ordered that future filing and court fees not be waived for Jacobs. Because the waiver of fees may be mandatory under certain circumstances, see G. L. c. 261, § 27C, this much of the order is vacated. The waiver of fees for any future filings should be determined on a case by case basis.
Contrast 28 U.S.C. § 1915(g) (2012) (expressly permitting imposition of costs and fees where indigent litigant has filed in bad faith); Martin v. District of Columbia Ct. of Appeals, 506 U.S. 1, 3 (1992). But see id. at 4 (Stevens, J., dissenting).
As for other arguments made by Jacobs in her brief, we have considered them and find nothing that warrants further discussion. See Commonwealth v. Domanski, 332 Mass. 66, 78 (1954). See also Tynan, 453 Mass. at 1005.
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Conclusion. The judgments are affirmed. The portion of the order in case nos. 16 MISC 000011 and 16 MISC 000012 ordering that "no filing or other court fees shall be waived for" Jacobs is vacated, and as so modified, the order is affirmed.
So ordered.
Affirmed as modified.