LISA L. PETRILLO, individually and as trustee, [Note 1] vs. ZONING BOARD OF APPEALS OF COHASSET & others. [Note 2]

MILLS, J. The plaintiff, Lisa L. Petrillo, [Note 3] opposed the proposal of her neighbors (the Murphys) to build a new single family home on their land, which is partially in Cohasset and partially in Scituate. The Cohasset building inspector denied the Murphys' application for a building permit because of uncertainty whether the Scituate land could be combined with the Cohasset land for zoning purposes, so that the resulting lot would meet the 35,000 square foot minimum lot size requirement of the Cohasset zoning bylaw (Cohasset bylaw). The Cohasset zoning board of appeals (board) reversed the building inspector's decision and approved the lot combination. The plaintiff appealed pursuant to G. L. c. 40A, § 17, and a Land Court judge upheld the board's decision. We affirm.

1. Background. [Note 4] In 1996 the Murphys [Note 5] owned a lot in Cohasset, in Norfolk County (Cohasset land), of approximately 19,000 square feet with a house and garage that predated zoning and were nonconforming as to some side yard requirements. [Note 6] They also owned adjoining land in Scituate, in the county of Plymouth, containing approximately 27,260 square feet (Scituate land).

On March 6, 1996, the Murphys applied to the board for a special permit (special permit application) to allow reconstruction and renovation of the existing house, and relocation of a

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portion of the house as an addition to the existing garage. In their special permit application, the Murphys disclosed their ownership of the adjacent Scituate land, but the work proposed involved only the building on the Cohasset land and only that land was the subject of the application. On April 5, 1996, the board issued a decision (decision I), allowing in part, and denying in part, the requested special permit. [Note 7]

The issue of combining the Cohasset land with the Scituate land was neither raised by the Murphys nor discussed during the public hearing on the special permit application. Nevertheless, the board stated in decision I:

"Although the adjacent lot is owned by the same person, the adjacent lot is located in a different town (Scituate) and a different county (Plymouth) and therefore can not be combined, for zoning purposes, with the Subject Property."

The Murphys did not appeal decision I, and undertook no work pursuant to the special permit.

On September 26, 2002, the Murphys applied to the Cohasset building inspector for a permit (building permit application) on a lot combining the Cohasset land and Scituate land, so that the resulting lot, in excess of 35,000 square feet, would satisfy the 35,000 square foot minimum lot requirement under the Cohasset bylaw. The Murphys proposed to "[d]emolish house and construct new, meeting all setbacks of zoning for new construction on conforming lot." On November 6, 2002, the building inspector denied the application, citing the conflicting positions of the town's attorney and the board relating to the combination of lots in different towns and counties to satisfy the requirements of the Cohasset bylaw. On November 19, 2002, the Murphys appealed the inspector's denial to the board, which, on January 28, 2003, issued a decision (decision II), allowing the

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lot combination, for zoning purposes, so that lot size was no longer an issue. [Note 8]

The plaintiff filed her appeal of the board's decision with the Land Court on February 13, 2003, asserting that decision II, on principles of res judicata, was in error because decision I had previously and adversely decided the lot combination issue and, therefore, "was . . . valid, final, and conclusive on the parties and their privies, and bars further hearing of all matters that were or should have been in the 1996 prior action." Elsewhere in her complaint, the plaintiff asserted that the Cohasset bylaw "sets forth a clear and unequivocal expression that a 'lot' is not to include 'an area or parcel of land' which is not situated in Norfolk County," providing a second basis for prohibition of the lot combination.

The plaintiff moved for summary judgment based principally upon her res judicata argument. The judge, after ruling for the plaintiff on the issue of standing, rejected the res judicata argument, because the "identity of cause of action and issues" were not the same in decision I and decision II. Thereafter, although the plaintiff had not pressed the argument in her motion, the judge ruled that the Cohasset bylaw does not explicitly prohibit the lot combination, and that "[t]he Bylaw is at worst ambiguous, in which case, deference is given to the local board's interpretation of its own bylaw[]" about the legality of the lot combination. He denied the plaintiff's motion for summary judgment, and granted summary judgment sua sponte to the Murphys on all counts of the plaintiff's complaint. The plaintiff then brought this appeal.

We affirm the judge's ruling that the board's determination in decision II was not precluded by principles of res judicata. We also hold that the judge's complete resolution of the case, on the plaintiff's motion for summary judgment, was proper.

2. Res judicata. [Note 9] "The term 'res judicata' describes doctrines by which a judgment has a binding effect in future actions. It

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comprises both claim preclusion (also known as 'merger' and 'bar') and issue preclusion (also known as 'collateral estoppel'). Claim preclusion 'makes a valid, final judgment conclusive on the parties and their privies, and bars further litigation of all matters that were or should have been litigated in the action.' " Jarosz v. Palmer, 436 Mass. 526 , 530-531 n.3 (2002) (citations omitted). See Kobrin v. Board of Registration in Med., 444 Mass. 837 , 843-844 (2005); Green v. Town of Brookline, 53 Mass. App. Ct. 120 , 123 n.5 (2001). "The invocation of claim preclusion requires three elements: '(1) the identity or privity of the parties to the present and prior actions, (2) identity of the cause of action, and (3) prior final judgment on the merits.' " Kobrin v. Board of Registration in Med., 444 Mass. at 843, quoting from DaLuz v. Department of Correction, 434 Mass. 40 , 45 (2001).

"Similarly, issue preclusion 'prevents relitigation of an issue determined in an earlier action where the same issue arises in a later action, based on a different claim, between the same parties or their privies.' Heacock v. Heacock, [ 402 Mass. 21 , 23 n.2 (1988)]. Before precluding the party from relitigating an issue, 'a court must determine that (1) there was a final judgment on the merits in the prior adjudication; (2) the party against whom preclusion is asserted was a party (or in privity with a party) to the prior adjudication; and (3) the issue in the prior adjudication was identical to the issue in the current adjudication.' Tuper v. North Adams Ambulance Serv., Inc.,

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428 Mass. 132 , 134 (1998)." Kobrin, supra at 843. "Additionally, the issue decided in the prior adjudication must have been essential to the earlier judgment[, and i]ssue preclusion can be used only to prevent relitigation of issues actually litigated in the prior action." Id. at 844 (citations omitted).

As the party moving for summary judgment on res judicata grounds, the plaintiff had the burden of establishing elements of either claim or issue preclusion. See Beals v. Commercial Union Ins. Co., 61 Mass. App. Ct. 189 , 194 (2004). We are not persuaded that the plaintiff has met her burden in this case. Her claim preclusion argument, at the very least, fails because the plaintiff cannot establish that the "cause of action" in decision I is identical to that in decision II. [Note 10] In the first case the Murphys sought a special permit to alter preexisting, nonconforming uses. The requested relief was defined by a specific provision of the Cohasset bylaw, as well as by G. L. c. 40A, § 6. The request was premised upon underlying nonconformity and certain proposed building activity that would continue the zoning nonconformity. The board, under the controlling legal principles, was required to make an objective evaluation of detrimental consequences to the neighborhood that could result from the intended work. The board had discretion to allow the work by special exception, based upon its evaluation of the continuing nonconformity. [Note 11]

The request in the second case was an appeal from a decision of the building inspector. The proceeding before the board was based upon bylaw and statutory provisions distinct from those in decision I. No authority to create or continue zoning nonconformity was involved. Instead, the Murphys requested

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relief similar to declaratory relief, based upon the interpretation of the bylaw. The case in decision I resembled, in form, a complaint to a trial court. The board in the second case was performing an appellate, rather than a trial, function, on an issue essentially of law. The requested relief and the law applicable to each case were not identical as between decisions I and II.

The plaintiff is similarly unsuccessful in her burden with respect to the elements of issue preclusion. At the very least, the plaintiff did not establish that the issue of lot combination, the sole issue in decision II, was present in decision I and, even if it were marginally present (an argument that we reject), that it was either essential to the decision or actually litigated in the 1996 case.

Essential to any zoning case is a defined lot of land, a use (existing or proposed), and a municipal zoning code. In the first case, the Murphys' request and the decision of the board were based upon the Cohasset land only. Although decision II states that the legal status of the combination of lots for zoning purposes was a finding in decision I, it is apparent from review of decision I that this was not the case. The board made several findings in the fifth paragraph of decision I, but a finding of "legal status" of the lots was not one of them. The judge also correctly noted that the language in decision I relative to the combination of lots appears in a different paragraph of the board's decision than its findings on the special permit application. The lot combination issue was not litigated in the first case, and the board's comment in decision I was not essential to its action on the special permit application.

3. Lot combination under the Cohasset bylaw. The plaintiff asserts that the Cohasset bylaw sets forth "a clear and unequivocal expression that a 'lot' is not to include 'an area or parcel of land' which is not situated in Norfolk County." Her argument is as follows. Section 2.1 of the Cohasset bylaw defines "lot" as "[a]n area or parcel of land in one ownership defined by metes and bounds or boundary lines in a recorded deed or recorded plan." The plaintiff then notes a different section of the Cohasset bylaw (section 5.3.2[ii], establishing "grandfather protection" in relationship to some 1985 area amendments), which refers to "a plan for such lot . . . recorded or endorsed or a

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deed . . . duly recorded with the Norfolk County Registry of Deeds or Registry District of the Land Court . . . ." (emphases added). [Note 12] From those two provisions the plaintiff draws the conclusion that a lot, for purposes of the Cohasset bylaw, may not include an area or parcel of land that is not situated in Norfolk County. It is hardly an inescapable conclusion, and the bylaw is far from clear and unequivocal on the point.

The Land Court judge correctly considered Boulter Bros. Constr. Co. v. Zoning Bd. of Appeals of Norfolk, 45 Mass. App. Ct. 283 , 285 (1998), as resolving "the issue of the legality of the combination of lots in different towns and/or counties for zoning purposes where the bylaw is silent in favor of such practice." [Note 13] The judge then concluded, we think correctly, that the Cohasset bylaw is at worst ambiguous, in which case, deference is given to the local board's interpretation of its own bylaws. See Livoli v. Zoning Bd. of Appeals of Southborough, 42 Mass. App. Ct. 921 , 923 (1997) ("A reasonable interpretation of its own zoning by-law by a local board, such as a board of appeals, is entitled to deference"), citing H.N. Gorin & Leeder Mgmt. Co. v. Rent Control Bd. of Cambridge, 18 Mass. App. Ct. 272 , 276 (1984). The judge correctly ruled that the Cohasset bylaw did not render decision II erroneous.

4. Grant of summary judgment to the unrequesting defendants. On appeal, the plaintiff asserts that her motion for summary judgment was narrow and that the motion judge abused his discretion by "exceed[ing] the scope of the motion . . . [and,] sua sponte, awarding the defendants . . . judgment as to all counts of the verified [c]omplaint." Although the plaintiff's complaint contained multiple counts (which she denominates as "causes of action"), the complaint, fairly read, asserts the issues the judge considered: (1) res judicata on the lot combination

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issue; and (2) whether lot combination was explicitly prohibited by the bylaw. [Note 14]

In her supplemental documents, the plaintiff put before the judge the entire Cohasset zoning bylaw. The defendants' memorandum discussed the applicability of Boulter Bros. Constr. Co., supra, and the significance of language in the applicable zoning bylaws (in Boulter Bros., as well as in this case) concerning lot combination. The defendants explicitly argued, in direct contrast to the plaintiff's summary judgment memorandum, that the Cohasset bylaw does not contain language explicitly excluding split lots. The Murphys filed with their opposition correspondence (verified as a letter from their lawyer to the Cohasset building inspector) discussing Boulter Bros., with analysis of the sections of the Cohasset bylaw relied upon by the plaintiff for her second claim concerning the bylaw language.

The plaintiff acknowledges the judge's authority to grant summary judgment on his own initiative, but claims that the law requires that she be given fair notice and an opportunity to put her best foot forward on her second issue. She does not, however, suggest any "unexplored factual issue that would have a bearing on the [judge's] decision." Howcroft v. Peabody, 51 Mass. App. Ct. 573 , 576 n.3 (2001), quoting from Baldwin Crane & Equip. Corp. v. Riley & Rielly Ins. Agency, 44 Mass. App. Ct. 29 , 32-33 (1997). This, to us, is not a case where the plaintiff was "surprised by the court's grant of summary judgment." Ibid., quoting from Langton v. Commissioner of Correction, 34 Mass. App. Ct. 564 , 576 (1993).

The judge was correct in his disposition of the entire case on this summary judgment record. The judgment is affirmed.

Judgment affirmed.