Opinion
10-P-1475
08-10-2011
JOHN SCHEY & another v. BOARD OF APPEALS OF MARBLEHEAD & another.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The judge properly treated the motion filed by the defendant, Wayne Johnson, alleging lack of jurisdiction and brought under Mass.R.Civ.P. 12 b(1), 365 Mass. 754 (1974), almost fourteen years after this action was commenced and ten years after judgment was entered in the Land Court, as a motion under Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974). After final judgment, lack of subject matter jurisdiction may be raised only by way of a motion under rule 60(b)(4). See O'Dea v. J.A.L., Inc., 30 Mass. App. Ct. 449, 452 (1991). It is clear that the 2000 judgment was a final and appealable judgment. See Mass.R.A.P. 4(a), as amended, 430 Mass. 1603 (1999). We affirmed it on appeal. See Schey v. Board of Appeals of Marblehead, 66 Mass. App. Ct. 1112 (2006) (unpublished memorandum and order issued pursuant to our rule 1:28). At the very latest, the judgment became final after denial of further appellate review by the Supreme Judicial Court. See Schey v. Board of Appeals of Marblehead, 447 Mass. 1107 (2006). The fact that the judge had put a stay in place does not alter the judgment's finality, nor does the fact that the judge explicitly retained jurisdiction to address issues having to do with the implementation of the judgment.
The judge, having properly treated the motion before him as a motion under rule 60(b), did not abuse his discretion in denying the motion. While as a general proposition ''subject matter jurisdiction' is nonwaivable and can be raised at any point in a proceeding[, this] undeniably fundamental principle applies only when the jurisdictional issue has not been previously addressed and when 'it is first raised,' at whatever stage of litigation, by either the parties or the trial or appellate court on its own motion.' Conservation Commn. of Falmouth v. Pacheco, 49 Mass. App. Ct. 737, 739 (2000), quoting from Litton Bus. Sys., Inc. v. Commissioner of Rev., 383 Mass. 619, 622 (1981). Thus, '[p]roperly applied, Rule 60(b) strikes a balance between serving the ends of justice and preserving the finality of judgments [and] may not be used as a substitute for a timely appeal.' Harris v. Sannella, 400 Mass. 392, 395 (1987), quoting from Nemaizer v. Baker, 793 F.2d 58, 61, 65 (2d Cir. 1986). In other words, although a judgment is subject to dismissal on appeal for lack of jurisdiction even if not argued by the parties, see Litton Bus. Sys., Inc. v. Commissioner of Rev., 383 Mass. at 622, the same judgment may be immune to attack under rule 60(b)(4). After final judgment, there are limits to a party's ability to challenge even jurisdiction. See, e.g., Harker v. Holyoke, 390 Mass. 555, 558- 559 (1983) (holding that a party can not collaterally attack a final judgment on the ground of lack of subject matter jurisdiction); O'Dea, 30 Mass. App. Ct. at 454 n.12 (whether denominated direct or collateral attack, 'in Massachusetts the principles of finality are important in granting rule 60[b] [4] relief'). 'While absence of subject matter jurisdiction may make a judgment void, such total want of jurisdiction must be distinguished from an error in the exercise of jurisdiction. A court has the power to determine its own jurisdiction, and an error in that determination will not render the judgment void. Only in the rare instance of a clear usurpation of power will a judgment be rendered void.' Lubben v. Selective Serv. Sys., 453 F.2d 645, 649 (1st Cir. 1972). The question is whether the 'judge 'usurped jurisdiction' in the sense that there is 'no arguable basis on which it could have rested a finding that [he] had jurisdiction." Harris v. Sannella, 400 Mass. at 396, quoting from Nemaizer v. Baker, supra.
Johnson argues first that the plaintiffs lack standing because under the relatively recent decision in Standerwick v. Zoning Bd. of Appeals, 447 Mass. 20, 26-32 (2006), the construction of his house did not invade any cognizable interest of the plaintiffs. To begin with,
'the defendants may not raise the issue of standing in a rule 60(b) motion. Whether the facts of a given case meet the standard for exercising jurisdiction -- here whether the plaintiff has standing -- has been termed a ' quasi-jurisdictional' determination. Lubben v. Selective Serv. Sys., 453 F.2d at 649. 'These facts do not go to the subject matter of jurisdiction, 'but to a preliminary fact necessary to be proven to authorize the court to act.'' Id. at 649 n.14, quoting from Noble v. Union River Logging R.R., 147 U.S. 165, 174 (1893). While such a quasi-jurisdictional determination can be challenged on appeal, unless it is 'a clear usurpation of power,' it is immune from attack under rule 60(b). Id. at 649.
'Similarly, Coalition of Black Leadership v. Cianci, 570 F.2d 12, 15-16 (1st Cir. 1978), held that the consent decree entered in that case could not be challenged for lack of jurisdiction by a motion to vacate. If there was error in determining that there was a case or controversy on the ground that the plaintiff lacked standing, the error should have been corrected by appeal. Swift & Co. v. United States, 276 U.S. 311, 326 (1928). See Walling v. Miller, 138 F.2d 629, 632-633 (8th Cir. 1943), cert. denied, 321 U.S. 784 (1944), which, relying on General Inv. Co. v. New York Cent. R.R., 271 U.S. 228, 230 (1926), reached the same result saying that when a question of standing is determined 'tacitly or expressly,' the judgment is one on the merits, is not void even if erroneous, and 'is not subject to attack for such an error by motion to vacate.' See generally Restatement (Second) of Judgments § 12 & introductory note to § 65 (1982).'
Sarin v. Ochsner, 48 Mass. App. Ct. 421, 423-424 (2000).
In any event, Johnson has not shown that the plaintiffs lack standing. The decisions on which Johnson would rely do not support his argument. The judge here found as a matter of fact that Johnson's construction infringed on, among other interests, the light and air of the plaintiffs. This was based on a viewing of the property by the judge. A finding based on such a viewing is entitled to deference, see Sheehan v. Zoning Bd. of Appeals of Plymouth, 65 Mass. App. Ct. 52, 55 (2005), and Johnson has not shown that that finding of fact is clearly erroneous. The cases cited by Johnson do not hold that these interests are not cognizable. See McGee v. Board of Appeal of Boston, 62 Mass. App. Ct. 930, 931 (2004) (finding that 'a marked reduction in light, air, view, and privacy' was sufficient to confer standing). Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115, 117-124 (2011), does not address standing based on a property owner's interests in light and air. Federman v. Board of Appeals of Marblehead, 35 Mass. App. Ct. 727, 732 (1994), does not discuss light and air, and in fact is a case decided on ripeness where in dicta the court addressed whether there was a zoning violation, not whether there was standing.
Nor does it matter, as Johnson urges, that 'if [he] had a few more feet of land' on the side of his lot not abutting the plaintiffs' land, 'nothing would prevent him from keeping his exact home in its exact location.' Because the lot is not compliant with the applicable zoning regulations, the plaintiffs are entitled to block the construction and maintenance of a house on the lot that in fact infringes on their light and air in the way the judge found.
Moreover, rule 60(b) relief was not required on the basis of Johnson's argument that the Land Court lacked subject matter jurisdiction because of the timing of the plaintiffs' appeal. Johnson litigated the question of the timing of the plaintiffs' appeal in his direct appeal and lost. This is sufficient to support the judge's determination not to grant rule 60(b)(4) relief.
Johnson also argues that under the recent decision in Gallivan v. Zoning Bd. of Appeals of Wellesley, 71 Mass. App. Ct. 850, 857 (2008), the Land Court lacked jurisdiction. In that case, we held 'that a party with adequate notice of an order or decision that violates a zoning provision must appeal that order or decision . . . within the thirty-day period allotted for such an appeal. See G. L. c. 40A, § 8, 15.' Ibid. Further, we stated that a party could not 'sit on her rights while the recipient of the permit incurs substantial expense . . . only to have the aggrieved person spring into action sometime in the next six years and demand enforcement of a zoning restriction' under G. L. c. 40A, § 7. Ibid. Johnson argues that the plaintiffs were in violation of Gallivan because they did not appeal the issuance of the building permit directly, but filed an application for enforcement under § 7 requesting the revocation of the building permit and then challenged the zoning board's decision denying that application six months later by amending their complaint in the Land Court, after the appeal period had expired.
Even assuming the rule of Gallivan is jurisdictional and does not present only a waivable, 'quasi-jurisdictional' issue of fact, see Sarin, v. Ochsner, 48 Mass. App. Ct. at 423-424, it has no application to this case.
Johnson's reliance on Gallivan, supra, is misplaced. As we described in our decision in the direct appeal, the plaintiffs in this case initiated an enforcement action before the issuance of the building permit, requesting that the building permit not be issued. (The Land Court action was commenced in September 1995, so it was not brought before the building permit issued.) The plaintiffs then filed a timely appeal from the denial of that request for enforcement to the zoning board and the Land Court. In the direct appeal from the Land Court's decision, Johnson argued not that the plaintiffs' appeal came too late, but that it was premature. We ruled that because there was 'conduct on the part of Johnson long before he applied for the building permit in June, 1995, that manifested not merely a hypothetical desire to build, but an actual intention to construct a house,' the enforcement action was ripe, and the denial of the plaintiffs' request for enforcement was appealable. Thus, we concluded, the Land Court 'had jurisdiction to decide the matter.'
Nothing in Johnson's subsequent action of seeking a building permit, or in the plaintiffs subsequently seeking the revocation of the building permit and amending their complaint to challenge the decision by the zoning board declining to revoke the permit, deprived the court of this pre-existing jurisdiction. Indeed, this argument is essentially foreclosed by our analysis in the direct appeal in this case that failure to take a separate appeal from the zoning board's refusal to revoke the building permit did not mean that the Land Court did not have jurisdiction. We concluded that 'the trial judge correctly recognized, in turning to the merits of the [plaintiffs'] complaint, that the first decision of the [zoning] board, which included comprehensive findings, 'encompasses all the issues involved in the case.''
Finally, Johnson argues that his motion for reconsideration of the order dated January 20, 2010 lifting the stay of the underlying judgment should have been allowed. Even assuming our decision on the merits does not moot that claim, our previous discussion establishes that Johnson has not demonstrated a 'likelihood of success on the merits' to warrant keeping the stay in place. General Acc. Ins. Co. v. Bank of New England-West N.A., 403 Mass. 473, 475 (1988). See Board of Educ. v. Boston, 386 Mass. 103, 107 n.7 (1982). Johnson also argues that he is entitled to a stay pending appeal in a related case of the denial of a special use permit that might have allowed him not to remove the house. This case was decided adversely to Johnson, see Johnson v. Zoning Bd. of Appeals of Marblehead, 79 Mass. App. Ct. 1124 (2011), so this issue appears to be moot. In any event, even assuming that the present case was an appropriate venue in which to seek a stay pending appeal of that other matter, Johnson did not make a sufficient showing of the likelihood of success on the merits to warrant issuance of a stay.
The order denying Johnson's motion to dismiss and motion for reconsideration is affirmed. The plaintiffs' request for appellate attorney's fees and costs is allowed. They are to file with the
of the Appeals Court, within fourteen days of the date of the rescript, a petition for appellate attorney's fees and costs along with supporting documentation, in accordance with the procedure outlined in Fabre v. Walton, 441 Mass. 9, 10-11 (2004). Johnson shall file any opposition with the clerk no later than fourteen days thereafter.
So ordered.
By the Court (Mills, Sikora & Rubin, JJ.), Clerk
Schey.