Opinion
14-P-357
12-02-2015
DUANE P. LANDRETH, trustee, v. ZONING BOARD OF APPEALS OF TRURO.
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
This case presents the question whether a zoning board of appeals, following a remand from this court, erred when it ordered the building commissioner to revoke two building permits for the property at issue in accordance with our earlier decision in Schiffenhaus v. Kline, 79 Mass. App. Ct. 600 (2011) (Kline). We conclude that it did not and affirm.
On appeal, the material facts are not in dispute. We have previously described some of the facts of this case in the first appeal, Kline, supra. In May of 2008, the Truro building commissioner issued two building permits in accordance with G. L. c. 40A, § 7, to Donald Kline for construction of a large single-family home at 25-27 Stephens Way. Some abutters to the property appealed the permitting decision to the Truro zoning board of appeals (board) under G. L. c. 40A, § 8, claiming that the proposed house did not conform to the town by-laws. On August 18, 2008, the board, as a result of an equally divided two-two vote with one abstention, affirmed the granting of the permits, prompting the abutters to file a complaint appealing that decision in the Land Court, pursuant to G. L. c. 40A, § 17.
The abutters were Laurence Schiffenhaus, J. Anton Schiffenhaus, Alan Solomont, and Susan Lewis Solomont. Some of these parties were abutters of abutters, but for simplicity, we refer to them collectively as the abutters.
"The concurring vote of . . . four members of a board consisting of five members, shall be necessary to reverse any order or decision of any administrative official under this chapter . . . ." G. L. c. 40A, § 15, as appearing in St. 1987, c. 498, § 3.
On Kline's motion for summary judgment a Land Court judge annulled the board's decision and remanded the matter to the board, because a "change to the structure" increased the nonconformity "even though the existing nonconformity [frontage on a street of inadequate width] related to the lot." Kline, 79 Mass. App. Ct. at 606 n.8. See Bransford v. Zoning Bd. of Appeals of Edgartown, 444 Mass. 852, 861 (2005); Bjorklund v. Zoning Bd. of Appeals of Norwell, 450 Mass. 357 (2008). The Land Court judgment ordered the board, inter alia, "to direct the [b]uilding [i]nspector that the [b]uilding permits challenged in this action were issued by him in error, and that he must take appropriate action in light of that direction, and pending the further action of the [b]oard required by this [j]udgment."
Donald Kline died on September 28, 2009, but Landreth has continued as trustee for the property.
The record reflects that the property owner began construction on the lot despite ongoing proceedings. The Land Court judge cautioned him against continuing to build. See Kline, supra at 606 n.9.
All parties appealed that decision to this court, where, on May 26, 2011, resting on grounds other than those relied upon by the Land Court judge, we affirmed his decision. We ruled that the building commissioner abused his discretion in "characteriz[ing] the new house as an alteration of the original one" because "an entirely new building in a different location, which is also completely different in appearance and more than four times the size of its predecessor, cannot correctly be deemed an 'alteration' of the original." Kline, supra at 604. This court held that "the by-law itself is unobjectionable, but both in its interpretation and its application of the by-law, the town has strayed beyond the statutory bounds." Id. at 605.
Accordingly, we affirmed the remand to the board, stating: "The judge's remand to the board is affirmed for further proceedings consistent with this opinion, and specifically subject to our determination that the project does not constitute an alteration." Id. at 606. After our decision issued on May 26, 2011, Landreth sought further appellate review. His petition was denied by the Supreme Judicial Court on November 2, 2011, and the rescript of our decision was sent to the Land Court on November 7, 2011. With all of the appellate avenues exhausted, the judgment of the Land Court, dated April 12, 2010, annulling the decision of the board and ordering a remand was final.
The private parties -- that is, Landreth and the abutters -- settled their dispute shortly after this court affirmed the Land Court's judgment. On July 6, 2011, the private parties filed a motion in this court to vacate the remand or to remand to the Land Court for dismissal, on the grounds that because the abutters were no longer "persons aggrieved," they "therefore lack standing to challenge the decision of the [board]," and, they argued, "both this Court and the Land Court lack jurisdiction." Along with their motion, they filed a stipulation specifying that, because of their settlement agreement, which included placing a "buffer between [Kline's] property and the plaintiffs' property, the original plaintiffs . . . are not persons aggrieved pursuant to G. L. c. 40A, § 17."
The board opposed the motion in this court. The motion was not decided on its merits, but, rather, on the basis that the case had already been adjudicated. We denied the motion and instructed the parties to make their filings in the proceedings below.
On July 7, 2011, by and through counsel, the abutters sent a letter to the board stating that the case had settled, and, therefore, that the abutters "hereby withdraw their request for enforcement." After the rescript had entered in this case on November 7, 2011, the board, in accordance with the Kline decision, held a remand hearing on December 19, 2011, and entered a new order directing the building commissioner to revoke the building permits at issue. Landreth appealed this decision by filing another complaint in the Land Court arguing that, in light of the settlement, the board did not have jurisdiction to order revocation of the building permits because there was no aggrieved party under G. L. c. 40A.
On cross motions for summary judgment, a second Land Court judge (second judge) affirmed the board's decision. Based upon our prior decision that the case be remanded "for further proceedings consistent with [our] opinion," the second judge concluded that the board "had no discretion to consider the standing of the original . . . plaintiffs on remand," and that "[t]he [b]oard likewise lacked discretion to refuse to act at all." Landreth's appeal from this decision is now before us. We agree with the Land Court judge and affirm.
Discussion. The action before the Land Court was filed pursuant to G. L. c. 40A, § 17, which permits judicial review of the decisions of a zoning board of appeals. The only issue to be decided is whether, after Landreth and the abutters informed the board that the matter had been settled, the board had the authority to decide the legal issues before it -- namely, whether the building permits were issued in accordance with the zoning by-laws of Truro.
The parties both frame this issue as one of subject matter jurisdiction before the board. General Laws c. 40A, § 8, inserted by St. 1975, c. 808, § 3, provides that an appeal to the board "may be taken by any person . . . aggrieved by an order or decision of the commissioner of buildings, or other administrative official, in violation of any provision of this chapter or any ordinance or by-law adopted thereunder." In this instance, the "administrative official" is the building commissioner, and the abutters appealed to the board claiming to be aggrieved by the commissioner's issuance of the permits under G. L. c. 40A, § 7. Landreth argues that the board's jurisdiction ceased to exist when the abutters stipulated that they were no longer "aggrieved" by the commissioner's issuance of a permit. The board argues that subject matter jurisdiction is assessed when a case is filed, and cannot be extinguished thereafter. Consequently, according to the board, it had ample authority to issue a decision.
We acknowledge the amicus brief submitted by the Association to Preserve Cape Cod.
"A court is not ousted of jurisdiction by subsequent events -- jurisdiction once attached is not impaired by what happens later." O'Dea v. J.A.L., Inc., 30 Mass. App. Ct. 449, 453 (1991). We see no reason why this rule should not apply to a zoning board of appeals. Cf. Bradshaw v. Board of Appeals of Sudbury, 346 Mass. 558, 560 (1963) (ruling on the merits of a case even though petitioner was likely no longer an "aggrieved person" before the board of appeals because she no longer owned her property); Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719, 721 (1996) ("A review of standing based on 'all the evidence' does not require that the factfinder ultimately find a plaintiff's allegations meritorious. To do so would be to deny standing, after the fact, to any unsuccessful plaintiff"). In addition, parties may not stipulate to subject matter jurisdiction or a lack thereof. See Bergeron v. Bergeron, 287 Mass. 524, 526 (1934); Tosti v. Ayik, 386 Mass. 721, 725 (1982), quoting from Litton Bus. Sys., Inc. v. Commissioner of Rev., 383 Mass. 619, 622 (1981) (Subject matter jurisdiction "cannot be conferred by consent, conduct or waiver"). In our view, therefore, the parties' subsequent settlement agreement did not extinguish the board's jurisdiction.
Moreover, the board was required to fulfill the order of the Appeals Court by ordering the building commissioner to revoke the building permits, notwithstanding the private parties' agreement to resolve the underlying zoning issue. Compare Cornell v. Michaud, 79 Mass. App. Ct. 607, 612-613 (2011). The board was a named party in the first Land Court case and in the appeal from the underlying judgment. See G. L. c. 40A, § 17 ("all members of the board of appeal . . . shall be named as party defendants").
Although the Kline court agreed with the Land Court judge's decision to remand the matter to the board, we disagreed with his determination that "the building commissioner did not abuse his discretion in determining that the 'project fits the Truro definition of an "alteration."'" Kline, supra at 604. Rather, we determined that "the project fails to qualify" under the by-law's definition of "alteration" and ruled that the "project undeniably signified an expansion to the property's nonconformity." Id. at 604, 606. We then affirmed the Land Court's remand to the board "for further proceedings consistent with [the Appeals Court] opinion, and specifically subject to our determination that the project does not constitute an alteration." Id. at 606. Had the board failed to fulfill the remand order, the board could have been subject to proceedings for civil contempt, as the order was sufficiently clear. The board was provided with adequate notice of its duty pursuant to the decision of the Kline court; any deviation from this ruling would have constituted a "clear and undoubted disobedience of a clear and unequivocal command." Lynch v. Police Commr. of Boston, 51 Mass. App. Ct. 772, 776 (2001).
Judgment affirmed.
By the Court (Trainor, Agnes & Maldonado, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: December 2, 2015.