Opinion
No. 11–P–1460.
2012-05-25
Marcel MASSE, trustee v. ZONING BOARD OF APPEALS OF WESTON & another.
By the Court (GRASSO, MILLS & TRAINOR, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Marcel Masse, brought this action in 2008, seeking to annul a decision of the defendant zoning board of appeals of Weston (board) rescinding a building permit which had been issued to him by the then town building inspector. A Land Court judge allowed Masse's motion for summary judgment on September 23, 2010.
The judge's grant of summary judgment for Masse was based on his finding that, due to procedural defects, the board lacked jurisdiction to hear abutter Gary Lee's appeal, and therefore had improperly revoked the plaintiff's building permit.
The board did not file a notice of appeal. Instead, the current building inspector, Robert Morra, issued a cease and desist letter to Masse purporting to rescind the permit on November 16, 2010. In response, the plaintiff brought a motion for an order of contempt against the board, Morra, and abutter Gary Lee. Without making a formal finding of contempt, the judge reinstated Masse's permit on May 3, 2011, finding that Morra “was, and is, subject to the pronouncements of the court in the instant matter” and that “his actions are in clear violation of those pronouncements” (reinstatement order). In appealing the reinstatement order, the board contends that it was based on an ambiguous summary judgment order that lacked a clear and unequivocal command, that the judge erred in finding that the board had taken action in disobedience of the summary judgment order, and that Morra, as the town's new building inspector, was improperly enjoined. We conclude that none of these arguments are persuasive, and we affirm the judgments.
Discussion. As an initial matter, we note that the board waived its right to appeal the summary judgment order when it allowed the appeal period to lapse, and is therefore precluded from arguing the validity of the summary judgment order and its commands. Mass.R.A.P. 4, as amended, 430 Mass. 1603 (1999) (appeals must be filed within thirty days of the judgment date); Mood v. Kilgore, 384 Mass. 459, 464–465 (1981) (failure to file notice of appeal within thirty days of judgment date barred subsequent appeal).
With regard to the reinstatement order, “[t]o constitute civil contempt there must be a clear and undoubted disobedience of a clear and unequivocal command.” United Factory Outlet, Inc. v. Jay's Stores, Inc., 361 Mass. 35, 36 (1972). When a municipality or one of its entities is “charged with civil contempt for violat[ing] a court order because of the acts of its agents or servants, it is not necessary to show that there was wilful disobedience or intention to violate the order;” it is sufficient to demonstrate that the municipality's agents were the cause of the violation. Id. at 37.
We conclude that the reinstatement order was properly issued in response to “clear and undoubted disobedience of a clear and unequivocal command” in the summary judgment order. See id. at 36. The board contends that the judge's discussion of the validity of the building permit was located in a footnote in the summary judgment order and should be considered dicta, and that therefore the ruling was too ambiguous to provide a basis for the reinstatement order. In fact, the summary judgment order was anything but ambiguous. It states: “it is ... ORDERED that the decision of the Weston Zoning Board of Appeals rescinding the Plaintiff's Building Permit, is hereby ANNULLED. The underlying Building Permit is hereby reinstated and shall remain in full force and effect” (emphases original). The judgment itself uses almost indentical language and emphases. We conclude that the board received adequate notice of a clear and unequivocal judicial command to reinstate Masse's building permit, the terms of which were violated by the issuance of the cease and desist order. See Lynch v. Police Commr. of Boston, 51 Mass.App.Ct. 772, 776 (2001).
“Civil contempt ‘can be used as an enforcement mechanism only if the underlying order is sufficiently clear, so that the party to be bound is provided with adequate notice of the required or prohibited activity.’ “
We next address the board's claim that Morra was improperly enjoined in the reinstatement order. The board contends that Morra was not serving as building inspector at the time of the summary judgment order, and therefore cannot be included in the reinstatement order. This argument is without merit. The intention of the judgment reinstating the plaintiff's permit was plainly to restrain any town official from revoking the permit. We agree with the judge that “Morra, as the building inspector of Weston, is a zoning agent of the Town. As such, he is no less bound by an order or judgment of this court issued pursuant to G.L. c. 40A, § 17, than are the named board members.” See Mass.R.Civ.P. 65(d), 365 Mass. 832 (1974).
Furthermore, we conclude that the board and building inspector are in privity due to their overlapping responsibilities and powers, and as officers or agents of the town. See G.L. c. 40A, § 7; Mass.R .Civ.P. 65(d);
Morganelli v. Building Inspector of Canton, 7 Mass.App.Ct. 475, 487–488 (1979) (building inspector acts on behalf of the town). We agree with the Land Court judge that there is “sufficient legal identity between the two zoning actors, especially where, as here, the board has actively litigated the issues at hand, while the building inspector has chosen not to challenge the board's position.” See also G.L. c. 40A, §§ 1A & 13.
Injunctions are binding on “officers, agents, servants, employees ... and upon those persons in active concert or participation with them who receive notice of the order by personal service or otherwise.”
The latter section provides in part: “A zoning ordinance or by-law may authorize the appointment of a zoning administrator, who, unless otherwise provided by charter, shall be appointed by the board of appeals, subject to confirmation by the city council or board of selectmen, to serve at the pleasure of the board of appeals pursuant to such qualifications as may be established by the city council or board of selectmen. The board of appeals may delegate to said zoning administrator some of its powers and duties.”
Finally, we conclude that Morra's issuance of the cease and desist order was contrary to public policy as expressed in our case law. Landowners rely on zoning determinations, and have a reasonable expectation that they are final for construction purposes. Morganelli, 7 Mass.App.Ct. at 487;
see Ranney v. Board of Appeals of Nantucket, 11 Mass.App.Ct. 112, 115 (1981).
Landowners “should be able to rely on [zoning decisions] in the absence of special circumstances. A landowner should be given some measure of security before undertaking expensive construction.”
Morra's actions following the Land Court's summary judgment order were contrary to these established principles.
The purpose of this requirement is “to give finality to administrative proceedings and to spare affected owners from having to go repeatedly to the barricades on the same issue.”
For the foregoing reasons, we conclude that the reinstatement order was validly issued, and that Morra was properly enjoined.
To the extent that we have not addressed other specific points made by the board, they have not been overlooked. We have considered them and have found them to be without merit.
The judge found facts sufficient to hold the board and Morra in contempt, but chose to “hold in abeyance the decision to render a formal finding of contempt, as well as the imposition of sanctions.” We agree with the judge that the judgment was not ambiguous and conveyed a clear and unequivocal command, and that action was taken that was in clear disobedience of it. We will, however, not disturb the exercise of the judge's discretion.
Our decision does not preclude Masse from going forward with a request for monetary damages, a matter of which the judge elected “for the moment [to] defer” in his order of May 3, 2011.
Order dated May 3, 2011, affirmed.