STEVEN W. ALBAHARI, JANET L. ALBAHARI, WILLIAM H. BARBER, JUDITH S. BARBER, PAUL APOSTOL, JR., LISA A. APOSTOL, DEAN H. FOSTER and BONNIE JANE FOSTER v. HARVEY FREEMAN, BRIAN HARRISON, PAUL G. KEARNEY, ARTHUR STEWART, and NEVA FLAHERTY, as they are members of the Town of Brewster Zoning Board of Appeals; and LUCILLE M. OWOCKI

In this case, I must decide whether the private defendant, who prevailed in earlier litigation--overturning a local zoning board’s determination that her land could not be built upon under the provisions of the zoning by-law’s wetlands conservancy district regulations–may now proceed with her building plans, notwithstanding an amendment to the by-law enacted while the earlier lawsuit was underway. I conclude, as matter of law on undisputed facts: that this landowner has not shown that her right to build was vested under the prior version of the by-law, that the amended by-law provisions apply to her building project, and that those amended provisions prohibit her from building.

This action, filed in this court June 19, 2006, is an appeal, pursuant to G.L. c. 40A, § 17, from a decision (“Decision”) of the Town of Brewster Zoning Board of Appeals (“Board’), whose members are defendants. The Decision was filed with the Town Clerk on June 1, 2006.

The Decision concerns vacant land located at 45 Doran Drive in Brewster, Barnstable County, Massachusetts owned by defendant Lucille M. Owocki (“Owocki”). After she obtained a building permit, some of the plaintiffs appealed to the Board, asking it to overturn the issuance of the building permit to Owocki, which was for the construction of a single-family home on the land. After hearing, the Board voted, as set forth in the Decision, to deny the plaintiffs’ request. This judicial appeal followed.

Now before the court is the motion for summary judgment filed by Owocki. Owocki urges the court to affirm the Decision, and dismiss plaintiffs’ complaint. Owocki contends that there is no material issue of fact requiring trial, and that as a matter of law, the court, on the record the parties have assembled, may determine that the Decision is correct and legally may not be annulled or modified. The plaintiffs, on the other hand, while agreeing the facts are not in material dispute, say that as matter of law the court ought to deny Owocki’s motion and grant them summary judgment. The parties, by their counsel, submitted briefs, assembled the record contemplated by Mass. R. Civ. P. 56(c) and Land Court Rule 4, and argued the motion before the court. After consideration of the record, and the briefs and argument of counsel, I decide that there is no factual issue that is material requiring trial, and that judgment in plaintiffs’ favor must enter as a matter of law.

The record satisfies me that the following facts are not in dispute:

On August 29, 2000, Reef Realty, Ltd., on behalf of Owocki, applied for a building permit to construct a single-family home at 45 Doran Drive. By letter dated September 29, 2000, the Building Commissioner for the Town of Brewster denied Owocki’s application. The Building Commissioner cited five reasons for the denial of the application: (1) the presence of conservancy soil; [Note 1] (2) lack of a septic system permit; (3) lack of a driveway permit; (4) lack of a workmen’s compensation affidavit; and (5) problems with the foundation plans. [Note 2]

On October 13, 2000, Owocki appealed to the Board the “[d]ecision of the Building Commissioner/Zoning Agent that these lots have conservancy soils and therefore, are part of the Wetlands Conservancy District.” On October 26, 2000, Owocki entered the same appeal and also requested a variance if the board determined her lots to be part of the conservancy district. The Board held a hearing on December 12, 2000, during which Owocki presented expert evidence from Peter T. Lockwood, a soil scientist, that the soil on her property was a type known as “Amostown,” which was not listed as a conservancy soil in § 179-6 of the Zoning Code. The Board concluded its hearing on February 13, 2001. The Board determined that the lots were not part of the Wetlands Conservancy District. The Board filed its decision with the Town Clerk on February 23, 2001.

Abutters or owners of land across the street from Owocki’s property filed on March 14, 2001 an action in the Superior Court Department [Note 3] challenging, under G.L. c. 40A, §17, the decision of the Board. On September 28, 2001, while the case was pending, the Town of Brewster issued notice of a hearing to amend § 179-6 of the Zoning By-Law–the proposed amendment was to include “Amostown” type soil among those that would place a parcel of land within the Wetlands Conservancy District. The zoning amendment was adopted on November 19, 2001. The Superior Court affirmed the Board’s determination on October 22, 2002, and stated that “the permit applicant . . . ought to have the stability in that determination.” During the pendency of these proceedings, a septic permit was issued to Owocki for 45 Doran Drive on March 8, 2001.

The plaintiffs filed notice of appeal from the Superior Court judgment. The Appeals Court, pursuant to its Rule 1:28, in an unpublished memorandum dated May 12, 2004, affirmed the Superior Court’s judgment. Albahari v. Board of Appeals of Brewster, 61 Mass. App. Ct. 1104 (2004). [Note 4] The Appeals Court noted that, given the scope of the G.L. c. 40A, §17 appeal it had under review, the Appeals Court did not have jurisdiction to determine whether the subsequent change in the zoning code would invalidate the order of the Board. See id. at 2: “The parties asked the court to answer a different question, unrelated to reviewing what the board did: Can a subsequent change in the bylaw be interposed to invalidate the order of the board? That was not a question for the court to address in connection with this appeal under G.L. c. 40A, §17. If the board did not exceed its authority, there was no occasion either to annul its decision or to ‘make such other decree as justice and equity may require.’”

In a footnote (no. 7), the Appeals Court declined on the record before it to decide “whether the permit in question should be deemed to have been ‘issued’ for the purpose of G.L. c. 40A, §6 (see Framingham Clinic, Inc. v. Zoning Bd. of Appeals of Framingham, 383 Mass. 283 , 297 (1981), in which the Supreme Judicial Court held that once an applicant demonstrates its entitlement to a building permit, ‘the issuance of [the] permit is a matter of duty, not discretion, and relief in the form of an order that a permit issue is appropriate’), or whether the circumstances are such as to have created in defendant Owocki a ‘vested’ right to the permit.” Leaving this question (the one now joined in the instant action before this court,) unanswered, the Appeals Court held that the Board had not exceeded its authority, and affirmed the judgment of the Superior Court. Following the Appeals Court decision, plaintiffs unsuccessfully sought further appellate review in the Supreme Judicial Court. On July 19, 2004 the Barnstable Superior Court entered judgment after rescript, affirming the decision of the Board.

On September 22, 2005, the Building Commissioner issued a building permit to Reef Realty, as agent for Owocki, for the construction of a single-family home at 45 Doran Drive. On October 21, 2005, David and Andrea Cataldo and plaintiffs Steven and Janet Albahari appealed the issuance of the building permit to the Board, arguing that 45 Doran Drive contains Amostown type soil. These neighbors contend that, as a result, Owocki’s property is part of the Wetlands Conservancy District, the regulations of which preclude construction of a single-family dwelling. After public hearings on December 13, 2005 and May 9, 2006, the Board voted to uphold the issuance of the 2005 building permit. The Board determined that the building permit effectively had been issued, for purposes of the zoning freeze contained in G.L. c. 40A, § 6, prior to first publication on September 28, 2001 of the zoning amendment which added Amosville type soil to those triggering inclusion in the Wetlands Conservancy District. The Board filed its Decision with the Town Clerk on June 1, 2006.

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“Summary judgment is granted where there are no issues of genuine material fact, and the moving party is entitled to judgment as a matter of law.” Ng Bros. Constr., Inc. V. Cranney, 436 Mass. 638 , 643-44 (2002); Mass. R. Civ. P. 56(c). “The moving party bears the burden of affirmatively showing that there is no triable issue of fact.” Ng. Bros., 436 Mass. at 644. In determining whether genuine issues of fact exist, the court must draw all inferences from the underlying facts in the light most favorable to the party opposing the motion. See Attorney General v. Bailey, 386 Mass. 367 , 371, cert. den. sub nom. Bailey v. Belloti, 459 U.S. 970 (1982). Whether a fact is material or not is determined by the substantive law, and “an adverse party may not manufacture disputes by conclusory factual assertions.” See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Ng Bros., 436 Mass. at 648. “A court must deny a motion for summary judgment if, viewing the evidence in the light most favorable to the nonmoving party, there exist genuine issues of material fact.” Locator Services Group v. Treasurer and Receiver Gen., 443 Mass. 837 , 846 (2005).

After a review of the summary judgment record in the light most favorable to non-moving parties, I decide that there are no genuine issues of material fact precluding disposition as a matter of law. See Ng Bros., 436 Mass. at 643-44.

For the reasons set forth below, I conclude that the Board exceeded its authority in deciding that Owocki was entitled to zoning freeze protection under G.L. c. 40A, § 6. The Decision, which upheld the issuance of the 2005 building permit, was in error.

Zoning freeze protection is available under G.L. c. 40A, § 6, when a building permit has been issued before the first publication of notice of a public hearing on a zoning by-law amendment: “Except as hereinafter provided, a zoning ... by-law shall not apply to structures or uses lawfully in existence or lawfully begun, or to a building ... permit issued before the first publication of notice of the public hearing on such ordinance or by-law... but shall apply to ... a building ... permit issued after the first notice of said public hearing... .” It is undisputed in this case that no building permit actually had issued for 45 Doran Drive at the time of the September, 2001 publication of the notice of hearing on the eventually enacted zoning by-law amendment. At that date, Owocki’s request for a permit had been turned down by the Building Commissioner, had been approved by the Board on administrative appeal, and remained pending before the Superior Court. If a purely mechanical reading of above-quoted language of G.L. c. 40A, §6 were all that was necessary, then it would be obvious that the absence of a fully-issued building permit in September, 2001 would subject Owocki’s land to the by-law amendment and doom her request for a building permit in 2005. The decisional law, however, allows Owocki to advance an argument based on a less mechanical approach to the statute.

An applicant for a building permit also can obtain protection from the effect of a zoning amendment if “the issuance of a permit is a matter of duty, not discretion”--if that permit, which predates the notice of hearing on a zoning change, though not actually in hand, may be deemed to have “issued” for the purposes of G.L. c. 40A, § 6. Framingham Clinic, Inc. v. Zoning Bd. of Appeals of Framingham, 382 Mass. 283 , 297 (1981). An applicant can obtain protection from a zoning amendment if the applicant acquired a “vested” right to the permit prior to the first publication of notice. But this rule is sparingly applied, and merely submitting a permit application falls short of the showing required. See Collura v. Arlington, 367 Mass. 881 , 888 (1975). “The mere filing of an application prior to notice gives the landowner no vested rights. Caputo v. Board of Appeals of Somerville, 330 Mass. 107 , 111 (1953).”

Owocki contends that in the Decision the Board reasonably determined that as of the September, 2001 first publication of the zoning change, the remaining requirements for the actual issuance of the building permit already had been satisfied by Owocki, were obtainable as of right, or were purely ministerial. However, the facts, which are not in any real dispute by the parties, do not support this position.

As of September 28, 2001, when notice of the zoning change first was posted, Owocki had not provided the Building Commissioner with the necessary permits, documents, information, and fees to satisfy the outstanding requirements essential to obtain the building permit she sought. It is Owocki who bears the burden on the pivotal issue in the instant case. Her contention is that she was prevented by the Brewster authorities from receiving her permit in 2000 and 2001 because of an erroneous interpretation of the Wetlands Conservancy District by-law provisions. She carries the burden, to receive the relief she now seeks in this court, of showing that her “entitlement to a building permit turned solely on a correct interpretation of the by-law.” Framingham Clinic, supra, at 297. In other words, even applying the more liberal interpretation of the zoning freeze provisions of the first paragraph of G.L. c. 40A, §6 to take away the need for an actual issued permit to vest rights under an unamended by-law, the case law requires proof that the lack of the building permit was solely because of an incorrect interpretation of the by-law, an error that required correction judicially on appeal. Nothing in Framingham Clinic or similar cases suggests that an applicant who has been wrongly turned down for a building permit may lock in the version of the by-law in effect at the time the permit is denied if the denial is based on reasons of substance other than the incorrect interpretation of the by-law. In the case now before this court, Owocki cannot show, on the record before the court, that she failed to obtain her building permit in 2000 solely because of an erroneous reading of the provisions of the Wetland Conservancy District regulations then in effect. There were other reasons, including reasons of substance, that kept Owocki from receiving her permit. And these additional reasons were not the subject of Owocki’s administrative or judicial appeals; nothing, so far as the record show, stood in the way of Owocki meeting these requirements because those appeals were underway.

Owocki did not obtain a driveway permit until September 25, 2005. [Note 5] In addition, she did not provide copies of the driveway permit, septic permit, workers’ compensation affidavit, or the requested corrections to her foundation plans, until September 2005. She has not paid the building permit fees required by law for issuance of a permit. Reef Realty had been informed of these deficiencies in the Owocki application by letter dated September 29, 2000. Owocki did not attend to these shortcomings in her 2000 building permit application until September 2005, five years after the original turndown letter from the Building Commissioner, and four years after the first notice of the zoning change. The facts do not support Owocki’s contention that she already had satisfied the remaining requirements for the actual issuance of the building permit.

Owocki contends that these requirements were ones she could satisfy as of right, or were purely ministerial. As a result, Owocki argues that the Building Commissioner’s decision to issue a building permit would have been a matter of duty and not discretion. It is on this argument that Owocki bases her contention that the permit must be deemed to have issued as of the Board’s decision, filed February 23, 2001, in which the Board reversed the Building Commissioner’s soil conservancy determination. The uncontroverted facts do not support this position, but rather sustain the contrary one taken by the plaintiffs.

It certainly is the case that some of the deficiencies which stood in the way of issuance of the requested building permit were less substantive than the others. It is true, for example, that the Town’s Board of Health on March 8, 2001 had issued its septic system permit for the locus. The Building Commissioner’s issue on this score at the time the building permit was sought was not that there was no Board of Health approval of the septic system design, but that the issued septic permit had not been filed, as required, with the Building Commissioner. While the record does not show that the task of delivering the septic permit to the Commissioner was his responsibility, or indeed that of anyone other than Owocki, this reason for denial of the building permit is not of great consequence.

The same is true of the workers’ compensation affidavit. The record does not show that provision of the requisite workers’ compensation insurance was difficult or impossible for Reef Realty to accomplish. But the record does establish that the proof of satisfaction of that insurance requirement was Reef Realty’s (and thus Owocki’s) obligation; the Building Commissioner was not required to issue the building permit on faith alone, but instead was right to have insisted on receipt of the mandated certification.

The application for the driveway permit evidently was not made until September, 2005. This is so even though the requirement was to have submitted the duly issued driveway permit itself (and not merely to have applied for the driveway permit) as a condition precedent to issuance of a building permit. While, with the benefit of hindsight, the Building Commissioner now knows that the driveway permit has been issued, there is nothing that would have required him, or even allowed him, to issue a building permit without a driveway permit in hand.

The Board determined that a landowner is entitled to a driveway permit as a matter of right upon filing a plan with the Department of Public Works, and concluded that this process is a ministerial act because the Department of Public Works lacks the discretion to deny the application. The Board’s (and Owocki’s) characterization of the driveway permit application process may or may not be accurate; for purposes of the pending motion, I assume that it is. Nevertheless, it is not material. Even if the driveway permit application was nondiscretionary, it would not make the building permit application process nondiscretionary. If Owocki had been in possession of the driveway permit prior to September 28, 2001, which she was not, she would not be entitled to a building permit until she had resubmitted her application, accompanied by the requested permits, affidavits, and revised foundation plans, and paid the permit fee. One of those items was the driveway permit, which, never having been applied for until years later, simply could not be submitted to the Building Commissioner. The burden is on the applicant to assemble all necessary materials and to provide them to the Building Commissioner in a completed application before the issuance of the building permit can become a matter of duty and not discretion. The act of filing for a building permit prior to the amendment of an ordinance does not result in a vested right. Caputo v. Board of Appeals of Somerville, 330 Mass. 107 , 111 (1953) (citing Spector v. Building Inspector of Milton, 250 Mass. 63 , 71 (1924)).

Some of these failings in the building permit application package submitted by Owocki, such as the failure to turn into the Commissioner copies of the septic system permit or the workers’ compensation certificate, may fall on the less substantive side of the spectrum. Other failings, however, are far less easy to treat as insubstantial or ministerial. For example, the foundation plans submitted to obtain the building permit were deficient. They failed to meet the requirements of the building code. There does not appear to be any genuine dispute that the foundation plans as first submitted to the Building Commissioner were incorrect and non-compliant with the code. Where a wall is to be a 10-inch wall without any footing, a civil engineer must prepare and submit the foundation plan, with his or her stamp. And the supplied foundation plan did not address required details about how the sills were to be anchored, and showed an improper number of windows. There was never any timely compliance with these requirement, which obviously are driven by concerns of safe building design, construction, and engineering. While it turns out that Reef Realty’s principal, Everett Boy, ultimately did cause proper foundation plans to be prepared and submitted, there is no real dispute that this did not happen until September, 2005.

There is also the question of the fees. The record is clear that there was no timely payment of the building permit fee, and not even any timely tender of that payment, by or on behalf of Owocki. The fees were not tendered by Reef Realty until September 22, 2005. These permit fees are not minor in amount. In this case, they totaled $714.00. There is no argument that a building permit could ever have issued without full payment of the requisite fee. Owocki argues that, given the amount of money involved, she was reluctant to advance these funds until she knew that she would, in exchange, promptly receive her building permit. The only reasonable inference on the record before me is that Owocki and Reef Realty made a conscious determination not to put up the money undeniably needed to release the permit until all issues standing in the way of the permit were fully and finally resolved. Whatever the wisdom of this decision on their part as a business matter, Owocki, who has the burden of proof on this issue, has not shown that the failure to put up the building permit fee was not an independently sufficient reason for the refusal to issue the permit. No building inspector could issue a permit on the simple promise of payment of the fee, with the money yet to come. Owocki, given the failure to offer the undeniably due fee to the Town any earlier than September, 2005, cannot succeed in her position that, but for the misinterpretation of the Wetland Conservancy District provisions of the by-law, she would have had a building permit by September, 2001. The misinterpretation of the Conservancy District requirement was far from the sole reason of substance Owocki did not have her building permit by the time the zoning amendment notice was first published.

On the record before me, Owocki has failed to show that she had rights to a building permit sufficiently vested so that, even without an actual issued permit, she was entitled to protection under the first paragraph of G.L. c. 40A, §6 against the application to her land of the later Wetlands Conservancy District zoning by-law amendment. On the record before me, without there being any material disputed facts, as matter of law Owocki had no right to the building permit which the Board in its Decision determined she was entitled to have. The Decision of the Board was in error legally, and will be annulled. [Note 6]

Owocki’s motion for summary judgment is DENIED. Summary judgment is GRANTED to the plaintiffs.

Judgment accordingly.

Gordon H. Piper

Justice

Dated: July 7, 2008.