Opinion
18-P-1425
11-14-2019
ALBERT JOHNSON & another v. ZONING BOARD OF APPEALS OF WORCESTER & another.
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
Defendant Michael Madulka owns an ice cream shop and an office building adjacent to Lake Quinsigamond in Worcester (city). This retail use lies in a residential zoning district. Desiring to expand the ice cream shop to allow for the sale of other types of food and for sit-down service, Madulka applied for a special permit. Because he could not meet mandatory parking requirements, he also applied for a variance. After the city's zoning board of appeals (board) granted both forms of relief, the owners of three nearby parcels (plaintiffs) appealed pursuant to G. L. c. 40A, § 17. A Superior Court judge allowed the board's motion for summary judgment and denied the plaintiffs' subsequent motion for reconsideration. For the reasons explained here, we agree with the plaintiffs that allowance of summary judgment on the current record cannot be justified. Accordingly, we vacate the amended judgment entered in the defendants' favor.
Background. As explained here, this appeal turns not on the underlying facts but on the process through which the board sought and obtained a summary judgment ruling in its favor. We therefore proceed by laying out that process in some detail.
The board filed a statement of material facts (SOMF) with its motion for summary judgment, as required by Rule 9A of the Rules of the Superior Court. The factual statements in the SOMF are based entirely on citations to documents compiled in an accompanying appendix. Those documents include only the following: a copy of the board's decision (together with an attesting affidavit that the copy was true and accurate), the plaintiffs' bare-bones complaint appealing from the board's decision, and the plaintiffs' responses to interrogatories propounded by the board. The plaintiffs, who at that point in the litigation were pro se, did not respond to the motion for summary judgment in accordance with rule 9A. At the hearing on the board's motion, the plaintiffs submitted what they styled a "[j]oint [o]pposition" to the board's motion. The judge stated that he was accepting that document even though "the self represented plaintiffs failed to file an opposition in accordance with Rule 9A."
In his memorandum of decision, the judge found that the board had not rebutted the statutory presumption of standing that the plaintiffs enjoyed. See 81 Spooner Rd., LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692, 699-705 (2012). However, the judge went on to rule in the board's favor on the merits. After laying out the board's reasoning, the judge concluded as follows: "I find that the decision of the [board] is factually supported, is reasonable, does not derogate from the intent of the zoning ordinance, is legally sound and not arbitrary or capricious."
After the judge allowed the board's motion, but before final judgment entered, the plaintiffs retained counsel who filed a motion for reconsideration on their behalf. In that motion, they pointed out that the only "evidence" that the board had marshaled to support its ruling was the ruling itself. In support of their motion for reconsideration, the plaintiffs submitted affidavits regarding the impacts of the restaurant expansion. The judge denied the motion and eventually final judgment entered in favor of the defendants.
An amended judgment dismissing the complaint as to all plaintiffs entered on May 31, 2018.
Discussion. Judicial review of a decision of a local zoning board of appeals is not based on record review. Rather, the facts are to be established de novo in the judicial proceeding appealing the board's decision. See Furlong v. Zoning Bd. of Appeals of Salem, 90 Mass. App. Ct. 737, 739 (2016). Of course, parties still can obtain summary judgment in such cases if they can demonstrate that there are no material facts in dispute and that they are entitled to judgment as a matter of law. To do so, however, they must comply with the applicable rules including, most fundamentally, Mass. R. Civ. P. 56, 365 Mass. 824 (1974). That rule requires:
"Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. . . . The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits."Mass. R. Civ. P. 56 (e).
As noted, the only affidavit put forward by the board was the one certifying that the copy of the board's decision was true and accurate. Such an affidavit at best establishes what the board decided; it does nothing to establish the truth of the facts at issue. Indeed, the judge was "not allowed to give the board's findings or decision evidentiary weight." Josephs v. Board of Appeals of Brookline, 362 Mass. 290, 295 (1972).
In denying the motion for reconsideration, the judge observed that "[t]he facts set forth in [the board's SOMF] were consistent with the facts found by the [board] in its April 4, 2013 decision granting defendant Madulka a special permit and variance." Given that the SOMF was based entirely on what the board found in its decision, the consistency the judge discerned is neither surprising nor of any moment.
What's more, the plaintiffs' responses to interrogatories -- which the board included in its own summary judgment submittals -- demonstrate that the plaintiffs contest the facts that the board found with respect to the projected impacts of the restaurant expansion. Thus, the board's summary judgment package is deficient not only by failing to include what the rules required, but also by including materials that demonstrate that a dispute of material fact exists. Such deficiencies are plain without needing to consider either the material the plaintiffs submitted at the hearing, or the subsequent affidavits they submitted with their motion for reconsideration.
For example, in one of his responses to the interrogatories, plaintiff Albert Johnson stated (under the pains and penalties of perjury) that the restaurant use "creates additional traffic, noise, litter, lights and a very dangerous access problem for the Plaintiffs."
In the face of these problems with its own submittals, the board has made no efforts to defend those submittals on the merits. Instead, they argue only that the plaintiffs waived the right to challenge the submittals by failing to respond to the SOMF in the specific manner required by rule 9A and by failing otherwise to oppose the motion for summary judgment in a timely manner. We are unpersuaded. First, although the plaintiffs should have responded to the board's motion with a timely opposition, in light of the fact that the board itself had not supported its motion in the required manner, the plaintiffs' duty to contest the board's alleged facts was not triggered. Moreover, even when a motion for summary judgment is unopposed, the moving party still must demonstrate that it is entitled to judgment as a matter of law. Stop & Shop Supermarket Co. v. Loomer, 65 Mass. App. Ct. 169, 171-172 (2005). Finally, even if the plaintiffs' failure to comply with rule 9A were deemed to result in the plaintiffs' admitting the factual allegations set forth in the SOMF, the board still would not prevail. That is because the SOMF addressed only how the board ruled, not whether those rulings were supported in fact.
See Mass. R. Civ. P. 56 (e) ("When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial" [emphasis added]).
Conclusion. Because the board's motion for summary judgment was improperly allowed, we vacate the amended judgment.
We need not resolve whether the judge abused his discretion in denying the motion for reconsideration.
Nothing in this memorandum and order should be interpreted as precluding either party from pursuing a new motion for summary judgment.
So ordered.
By the Court (Milkey, Sullivan & Ditkoff, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: November 14, 2019.