Opinion
19-P-852
08-12-2020
JAMES STVIL v. CITY COUNCIL OF REVERE.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
The plaintiff, James Stvil, brought this action in the Superior Court against the Revere city council (council). Stvil's complaint, brought pursuant to G. L. c. 40, § 17, challenged the council's denial of his application for a special permit to modify the nonconforming use of a property he leases in Revere. After a bench trial in 2015 (2015 trial), a Superior Court judge set aside the council's denial of Stvil's application, and remanded the matter to the council. A year later, the council once again denied Stvil's special permit application. Stvil appealed this second denial, and after a hearing, the judge granted Stvil's motion for summary judgment. The council now appeals to this court. We affirm.
The motion judge is the same judge that presided over the 2015 trial.
Background. Since 2004, Stvil has operated a business that provides both auto repair and auto body repair services at 14 Furlong Drive in Revere. Beginning in 2012, Stvil has also leased a lot located at 851-855 Broadway in Revere (property); the property is at the center of this dispute. Stvil leases the property from the Broadway Garage Realty Trust (realty trust), which has been owned and controlled by members of the Anzuoni family since 1925. Present on the property is a single-story garage (garage) that for more than eighty-five years was used to store, maintain, and repair transit and school buses (and support vehicles) by "two bus companies owned and controlled by the Anzuoni family."
The judge's written findings refer to the name "Anzone," while the parties' briefs and the trial transcripts refer to the name "Anzuoni." We understand both spellings to refer to the same family name, and this memorandum and order will use the name "Anzuoni" throughout.
Upon leasing the property in 2012, Stvil submitted a site plan to Revere's site plan review committee (SPRC) that outlined his plan to offer auto body repair services at the garage. As the property is located in an area zoned for "[g]eneral [b]usiness" purposes, the SPRC informed Stvil by letter that in order to proceed with his proposed plan, "a special permit [wa]s required from the . . . [c]ouncil for the change of one nonconforming use (commercial garage) to another nonconforming use (special garage)." On July 19, 2012, Stvil duly filed an application for a special permit to change the property's prior nonconforming use from "[g]arage, commercial" to "[g]arage, special," as defined by the Revere zoning ordinance.
In his written findings after the 2015 trial, the judge noted that Stvil's special permit application also sought permission to make changes to the garage, a preexisting structure. The judge also noted that the council had no objection to Stvil's proposed structural changes, and that the parties agreed that their dispute instead turned on the proposed change in the nonconforming use. Stvil's proposed structural changes are not before us in this appeal.
On August 27, 2012, the council held a hearing on Stvil's special permit application, but did not immediately act on it. On November 19, 2012, the council "voted to deny [Stvil's] application for special permit, finding that the operation of a '[g]arage, special' (auto body repair shop) would be substantially more detrimental than the current '[g]arage, commercial' (auto repair shop) use." The council's written decision, filed ten days later, "contained two substantive paragraphs," stating that "the operation of the auto body repair shop would be substantially more detrimental than the current use with regard to four impacts: parking, traffic, noise, and chemical odors." Stvil then appealed the council's denial to the Superior Court.
After the council denied his request to change the nonconforming use, Stvil commenced an automobile repair business at the property, "which, the [city of Revere's] [b]uilding [i]nspector agreed, fell within the bounds of the preexisting nonconforming use of '[g]arage, commercial.'"
The case was tried on March 26, March 27, and April 1, 2015. At the bench trial, both Stvil and the council presented evidence relating to the four impacts the council cited in denying Stvil's application, including excerpts from the deposition testimony of Benjamin DeChristoforo, the city of Revere building inspector. Among the witnesses at trial was Thomas Anzuoni, a trustee of the realty trust, who testified to the prior use of the property, among other things. The parties also stipulated that DeChristoforo "agreed with the SPRC about the zoning relief necessary to implement [Stvil]'s plan."
On May 22, 2015, the judge issued his findings of fact, ruling of law, and order for judgment, setting aside the council's denial of Stvil's special permit application and remanding the matter to the council. In his written decision, the judge "[found] facts, based on the record at trial, as to each of the four impacts cited by the . . . [c]ouncil as bases for its denial of the special permit application." Based on his extensive factual findings, the judge concluded that the council's denial of Stvil's application was "'unreasonable, whimsical, capricious or arbitrary' as to each of the four cited impacts, and thus it cannot stand." In reaching this conclusion, the judge conducted his analysis based on the parties' apparent agreement that the current nonconforming use was garage, commercial, as well as a finding to that effect.
In a footnote, the judge stated that at the time the council denied Stvil's application, "the most recent commercial garage use had been the [Anzuoni] family's storing and repairing of school buses." The judge also expressly found the automobile repair business Stvil had been operating at the property since that time to constitute "comparable 'garage, commercial' uses, based on the [b]uilding [i]nspector's agreement to [Stvil]'s current auto repair operation."
After the judge's remand order, the council did not hold another hearing on Stvil's application until April 4, 2016. On June 6, 2016, the council once again voted to deny Stvil's special permit application. As grounds for this second denial, the council asserted that "[t]he preexisting, nonconforming use of the [property] was not a 'commercial garage' but was a '[c]ommercial automotive storage/parking' facility." The correction of this "misapprehension," the council stated, was prompted by Thomas Anzuoni's testimony at the 2015 trial. Relying on this new classification of the property's current nonconforming use, the council assessed the potential impact of Stvil's proposed use, and ultimately determined that Stvil "has not shown . . . that the proposed operation of his 'special garage' will not be substantially more detrimental than the prior nonconforming use."
In the council's view, Thomas Anzuoni's testimony demonstrated that "[u]p until 2011 or 2012, the primary use of the [property] . . . was to park buses, mainly school buses," and that "[l]ight repairs were performed, incident to the principal use of storage of vehicles." Therefore, the council concluded that "the usage of the property . . . was light and far less active than either the auto repair business of the applicant or his proposed auto body repair shop."
On June 27, 2016, Stvil appealed this second denial of his special permit application to the Superior Court. After a hearing, the judge allowed Stvil's motion for summary judgment and dictated his decision into the record. In his decision, the judge first ruled that the Supreme Judicial Court's decision in Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374 (2009) (Wendy's), barred the council from changing its classification of the property's current nonconforming use after the matter was remanded to the council at the end of the 2015 trial. From this, the judge then concluded that the council "used a wrong comparator" in its analysis, and therefore its second denial of Stvil's special permit application was "based on a legally untenable ground."
Discussion. "We review de novo the allowance of a motion for summary judgment, viewing the facts 'in the light most favorable to the party against whom judgment entered.'" Bellalta v. Zoning Bd. of Appeals of Brookline, 481 Mass. 372, 376 (2019), quoting 81 Spooner Rd., LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692, 699 (2012). Stvil brought this action pursuant to G. L. c. 40A, § 17, which provides that the reviewing court "shall . . . determine the facts, and, upon the facts as so determined, annul such decision if found to exceed the authority of such board or special permit granting authority or make such other decree as justice and equity may require." "The decision of the board cannot be disturbed unless it is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary." MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635, 639 (1970).
The council contends that it was not barred from reclassifying the property's current nonconforming use on remand, and that the judge misapplied the court's decision in Wendy's. This claim is unavailing.
In Wendy's, 454 Mass. at 389, the Supreme Judicial Court stated that, "[o]n remand, a board may not ignore or disagree with the specific findings of a reviewing court after a judge has fulfilled her statutory duty to 'determine the facts,' G. L. c. 40A, § 17." At the 2015 trial, the judge compared the current use with Stvil's proposed use based on an express finding that the property's current use fell within the definition of "[g]arage, commercial." In granting summary judgment to Stvil, the judge also stated, regarding the 2015 trial, that the council "not only failed to produce evidence of . . . its later position that the use should be commercial automotive storage facility, but affirmatively agreed that the use was not that; that it was garage commercial, and it did so based on the opinion of the relevant [c]ity official." The record supports these observations, and it thus follows that the rule set forth in Wendy's, 454 Mass. at 389, barred the council from revising the current use's classification after the judge had expressly found in the 2015 trial that the prior use was appropriately classified as "[g]arage, commercial."
The council does not appear to argue that the judge in 2015 erred in finding that the property's prior use fell within the zoning ordinance's definition of "[g]arage, commercial." Instead, it essentially contends that it was entitled to revise its classification of the property's current use based on Thomas Anzuoni's trial testimony, despite the judge's contrary finding as to the proper classification. As explained herein, the council was not entitled to do so.
In an effort to avoid this result, the council argues that the change in its classification of the property's prior use did not contravene the rule elucidated in Wendy's because "[t]he differences were not over facts . . . but as to the legal significance of those facts and the effect of the findings upon the legal standard." We are not persuaded. The council's attempt at recasting the nature of its actions is inaccurate, and does nothing to detract from a straightforward application of the Wendy's rule. Here, the judge heard evidence presented by both parties, including Thomas Anzuoni's testimony, and concluded that the council's decision could not stand. In so doing, the judge made an express factual finding, based on the evidence before him, that the current use's proper classification was "[g]arage, commercial" -- a classification that the council not only did not contest but, as the judge noted, also "affirmatively agreed" with. This finding was binding on the council on remand, and thus the council was not permitted to reclassify the property's prior use when it considered Stvil's application anew.
The council also contends that the Wendy's rule does not apply because "[d]etermining the correct classification for the property was a question of law . . . and not a factual issue." We disagree. Assuming that a classification determination is indeed legal in nature, characterizing the judge's finding as to the proper classification of the property's current use as a legal determination nevertheless does not aid the council's cause. It is axiomatic that whatever can be said about a judge's factual findings on a G. L. c. 40A, § 17, review, a board of appeal or special permit granting authority is bound by a judge's legal determinations in such a proceeding, unless later set aside either by the same judge or on appeal. See G. L. c. 40A, § 17. Here, the council does not ask this court to set aside any of the findings or determinations the judge made at the conclusion of the 2015 trial. See note 7, supra.
Because the court's decision in Wendy's barred the council from changing its classification of the property's current nonconforming use on remand, the council's second denial of Stvil's special permit application cannot stand, for "it is based on a legally untenable ground." MacGibbon, 356 Mass. at 639. We therefore affirm the entry of summary judgment for Stvil.
In addition to ruling that Wendy's required setting aside the council's second denial, the judge also determined that the doctrine of judicial estoppel independently required the same result, and that the council's decision was "unreasonable, whimsical, capricious, or arbitrary." MacGibbon, 356 Mass. at 639. Because we affirm on the basis of the Supreme Judicial Court's decision in Wendy's, we need not address the council's claims pertaining to these other issues, or Stvil's claim that the council's appeal should be dismissed. See Commonwealth v. Magraw, 426 Mass. 589, 600 (1998).
Instead of remanding to the council again for further proceedings, the judge ordered the council to "issue the special permit within [sixty] days." While "[i]n the ordinary course, a reviewing judge is reluctant to order a board to implement particular relief" of the kind ordered here, "an order of particular relief may be appropriate where remand is futile or would postpone an inevitable result." Wendy's, 454 Mass. at 387-388. Under the specific facts of this case, particularly the council's delay in acting on Stvil's application on remand after the 2015 trial, the judge's order to issue the special permit to Stvil was appropriate. See id. at 389 (remand to local board of appeal for further consideration "not warranted because it would delay an inevitable result"); Crittenton Hastings House of Florence Crittenton League v. Board of Appeal of Boston, 25 Mass. App. Ct. 704, 715 (1988) (ordering local board of appeal to issue conditional use permit because court "d[id] not think that justice would be served by another remand to and a third decision from the board").
Judgment affirmed.
By the Court (Kinder, Neyman & McDonough, JJ.),
The panelists are listed in order of seniority. Justice McDonough participated in the deliberation on this case while an Associate Justice of this court, prior to his reappointment as an Associate Justice of the Superior Court.
/s/
Clerk Entered: August 12, 2020.