ALMIS KUOLAS, DANGUOLE KUOLAS, CHRISTOPHER MCGOWAN, and KIMBERLY MCGOWAN v. S. WOODWORTH A CHITTICK, BARBARA POWER, BENJAMIN LACEY, CHARLES HIGGINSON, PETER GOEDECKE, KATHLEEN HUNTER, as they are members of the TOWN OF COHASSET ZONING BOARD OF APPEALS; ROBERT EGAN, as he is the BUILDING INSPECTOR AND ZONING ENFORCEMENT

Introduction

On December 3, 2003, [Note 1] defendant Kendall Village Cohasset Builder, LLC’s (“Kendall Village”) predecessor-in-title was granted a special permit by the defendant Cohasset Zoning Board of Appeals (the “ZBA”) that allowed the conversion (within same footprint and building structure) of a nonconforming three-family dwelling on the property at 150 North Main Street into a four-family dwelling (the “2003 Decision”). That decision was never appealed and the conversion took place.

Years later, plaintiffs Almis and Danguole Kuolas sent a letter to Cohasset’s building inspector and zoning officer (the “building inspector”) (also a defendant in this case), requesting that he “enforce the Zoning By-laws by requiring the owners [of 150 North Main] to use the premises as a single family residence.” Letter from Almis and Danguole Kuolas to Robert Egan, Building Inspector and Zoning Officer at 1 (May 16, 2006). That request was based on their contention that the conversion actually required a variance, not a special permit, and the four-family dwelling was thus illegal. Id. The building inspector denied their request, responding that whether or not a variance should have been required, the Kuolas’ objections were moot “in that they were not filed in the form of an appeal [of the ZBA’s 2003 Decision] to the Superior Court in a timely fashion” (i.e., within twenty days after December 3, 2003). Letter from Robert Egan to Mr. and Mrs. Kuolas (May 17, 2006). The Kuolas, joined by plaintiffs Christopher and Kimberly McGowan, appealed the building inspector’s decision to the ZBA pursuant to G.L. c. 40A, § 8. [Note 2] On November 17, 2006, the ZBA upheld the building inspector’s enforcement denial (the “2006 Decision”), agreeing that the plaintiffs’ claims were barred by their (or their predecessors’) failure to timely appeal the 2003 Decision.

The plaintiffs now appeal the ZBA’s 2006 Decision pursuant to G.L. c. 40A, § 17. Kendall Village has counterclaimed “against the Plaintiffs for Abuse of Process and Malicious Prosecution,” demanding “a sum sufficient to compensate Defendant for all loss, cost and expense, including attorney’s fees and all other costs incurred in the defense of this action together with interest thereon.” Answer of Defendant Kendall Village Cohasset Builders, LLC at 6 (Jan. 10, 2007). It also seeks its costs and attorney’s fees pursuant to G.L. c. 231, § 6F. Id. at 6-7. Both Kendall Village and the municipal defendants have brought motions to dismiss, arguing that the plaintiffs cannot maintain the suit under the doctrines of laches, res judicata, and the statute of limitations. [Note 3] The municipal defendants have also moved, in the alternative, for summary judgment based on the same grounds. For the reasons set forth below, I ALLOW the defendants’ motions to dismiss and the municipal defendants’ motion for summary judgment. The plaintiffs’ claims are dismissed in their entirety, with prejudice.

Standard of Review

The standard for review of a motion to dismiss has recently been “refine[d]” by the Supreme Judicial Court in Iannacchino v. Ford Motor Company. 451 Mass. 623 , 635-36 (2008). Previously, a plaintiff’s complaint was reviewed in accordance with the “often-quoted language,” Id., that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Nader v. Citron, 372 Mass. 96 , 98 (1977) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)) (emphasis added). In Iannacchino, the court adopted the new federal approach that a complaint must contain “factual ‘allegations plausibly suggesting (not merely consistent with)’ an entitlement to relief, in order to ‘reflect[] the threshold requirement of [Fed. R. Civ. P. 8(a)(2) that the plain statement possesses enough heft to sho[w] that the pleader is entitled to relief.’” 451 Mass. at 636 (quoting Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1966 (1977)) (alterations in original). Stated differently, “to survive a motion to dismiss, a complaint must contain factual allegations ‘enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true.’” Flomenbaum v. Commonwealth, 451 Mass. 740 , 751, n.12 (2008) (quoting Bell Atl. Corp. v. Twombly, 127 S. Ct. at 1965). However, as the court noted in Flomenbaum, the new standard does not apply to motions filed prior to the Iannacchino decision. Id.

Under either standard, “the allegations in the complaint, as well as such inferences as may be drawn therefrom in the plaintiff[’]s favor, are to be taken as true.” [Note 4] Iannacchino, 451 Mass. at 625, n.7 (“the allegations of the complaint, as well as such inferences as may be drawn therefrom in the plaintiffs favor, are to be taken as true,” quoting Nader, 372 Mass. at 98 despite the court “retir[ing]” the language in Nader that quotes Conley, outlined above). The court can “take into consideration the allegations in the complaint, although matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint, also may be taken into account.” Schaer v. Brandeis University, 432 Mass. 474 , 477 (2000) (internal quotations and citations omitted). “However, we do not accept legal conclusions cast in the form of factual allegations.” Id. Furthermore, a party’s characterization of documents cannot contradict the documents themselves. See Ng. Bros. Constr., Inc. v. Cranney, 436 Mass. 638 , 647-48 (2002).

Since the motions in this case were filed prior to the Iannacchino decision, the older, “no set of facts” standard applies. Under either standard, however, the plaintiffs cannot prove any set of facts that would entitle them to the relief they seek.

Alternatively, the defendants are entitled to summary judgment. Summary judgment is appropriately entered when, as here, “there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law.” Mass. R. Civ. P. 56; Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty Nat’l Bank v. Dawes, 369 Mass. 550 , 553 (1976).

Facts

The following facts are established by the materials this court can consider when evaluating a motion to dismiss (see discussion above) and, in any event, are undisputed.

Defendant Kendall Village owns the property located at 150 North Main Street in Cohasset, which is in a single-family residential district. On September 24, 2003, Kendall Village’s predecessor-in-title, Pipenbrink Realty Trust (“Pipenbrink”), [Note 5] filed an application with the ZBA for a special permit in which it sought to convert a nonconforming three-family dwelling into a four-family dwelling by converting one of the units (a four-bedroom apartment) into two, two-bedroom units. [Note 6]

On December 3, 2003, [Note 7] the ZBA filed the 2003 Decision in which it outlined the following factual and legal findings (among others). [Note 8] The ZBA described the property as preexisting, nonconforming and containing a three-family dwelling and seven parking spaces. It noted that after the conversion, both “[t]he footprint and exterior of the structure will remain the same.” Id. at 1. It also noted that “Section 8.8 of the Zoning Bylaw states that the Board of Appeals may authorize by special permit a nonconforming use of a building, structure, or land, to be changed to a specific use not substantially different in character (or in its effect on the vicinity) provided that it finds that such change shall not be substantially more detrimental than the existing nonconforming use to the neighborhood.” Id.

Based upon the evidence submitted, the ZBA found “that the application materials were complete and properly submitted; that the hearing was duly and lawfully called, advertised, noticed, conducted and held; [and] that all procedural conditions and requirements relative to the granting of the requested Special Permit were met.” Id. Further, the ZBA found “that the proposed change in use will not be substantially different in character or in its effect on the vicinity and that the change will not be substantially more detrimental than the existing nonconforming use to the neighborhood, since the exterior of the building and the total number of bedrooms will remain unchanged and the single additional parking space will be in the back yard and out of sight of the street.” Id. As a result, the ZBA “unanimously grant[ed] the special permit [to convert the three-family dwelling into a four-family dwelling] subject to the following conditions:

1. Screening must be provided between the rear parking spaces and 154 North Main Street.

2. Exterior lighting, if any, must comply with Section 7.3.d of the Zoning Bylaw.

3. Parking spaces behind the dwelling must not direct exhaust fumes toward 154 North Main Street.

4. All work shall be carried out as indicated on the plans submitted. The construction must conform to all applicable state and local building regulations and requirements and the regulations of all other boards that have jurisdiction.” 2003 Decision at 2-3.

The 2003 Decision specifically noted that any G.L. c. 40A, § 17 appeals were required to be filed within twenty days. No such appeals were made.

After purchasing the abutting property at 140 North Main Street in 2004 and learning that they resided next to a four-family property, the Kuolas filed a letter with the building inspector on May 16, 2006 in which they stated that they were “convinced that there are zoning violations existing at 150 North Main Street and request that you enforce the Zoning By-laws by requiring the owners to use the premises as a single family residence.” Letter from Almis and Danguole Kuolas to Robert Egan, Building Inspector and Zoning Officer at 1 (May 16, 2006). Specifically, the Kuolas stated that, according to Bylaw § 5.3, Kendall Village’s property would need to contain 64,000 square feet to convert the dwelling into a four-family dwelling. Id. at 2. The building inspector responded, stating the ZBA had granted a special permit to convert the three-family into a four-family dwelling pursuant to Bylaw § 8.8 and that the twenty-day appeal period for that decision had expired. Letter from Robert Egan to Mr. and Mrs. A. Kuolas (May 17, 2006). Accordingly, the building inspector found that the Kuolas’ objections were moot. Id.

The plaintiffs [Note 9] timely appealed the building inspector’s decision to the ZBA. In its 2006 Decision, the ZBA upheld the building inspector’s decision, “find[ing] against the Applicants with respect to their Appeal from the Building Commissioner’s denial to require the Owners of the property at 150 North Main Street to use the premises as a single family residence.” 2006 Decision at 3 (filed Nov. 17, 2006). The ZBA specifically found the following:

under the doctrine of res judicata, and specifically of claim preclusion, the Building Commissioner was correct in declining to take the enforcement action requested by the Applicants. The conclusive nature of the Board’s unappealed decision granting the special permit, and the necessary action of the Building Commissioner in issuing a building permit in compliance therewith, can not be vitiated by requiring the Board, in response to an appeal from the Building Commissioner’s refusal to override the said building permit, to order him to do so. Were the Board to do so it would violate the twenty day limit for the bringing of appeals contained in Section 17 of Chapter 40A of the General Laws. While we applaud Attorney Henderson’s zealous representation of the Applicants, we hold that this appeal is nothing more than a convoluted late appeal from the Board’s original action in granting the special permit.

* * *

The Board is not opining on whether its December 2, 2003 decision was wrong but it is stating that if it was wrong or if certain evidence was not before it at the time of its decision, then the time to hear such arguments in the form of an appeal was before the expiration of the twenty day period. Even though the Applicants are contending that the owners of 150 Main Street are violating certain bylaws which were not discussed in the December 3, 2003 decision which granted the owners a special permit to allow its current use, they are still precluded from doing so because of the application of the doctrine of res judicata. “The statement of a different form of liability is not a different cause of action, provided it grows out of the same transaction, act, agreement, and seeks redress for the same wrong.” TLT Construction Corp. v. A. Anthony Tappe & Assocs., 48 Mass. App. Ct. 1 , 8 (1999), quoting from Mackintosh v. Chambers, 285 Mass. 594 , 596 (1934).

Id. at 2.

The plaintiffs timely appealed the ZBA’s 2006 Decision to this court. They claim that Kendall Village needed a variance for the conversion, the variance issue was never considered in the proceedings leading to the 2003 Decision, and “[t]he 2006 Decision was based on erroneous information, upon the wrong sections of the Cohasset Zoning By-laws, failed to acknowledge the necessity of a variance for the use the Defendant-Kendall is currently using the property, was wholly unsubstantiated by the evidence and contained substantial errors of law.” Complaint Pursuant to Massachusetts General Laws Chapter 40A, Section 17 at 6, ¶ 24. Accordingly, the plaintiffs contend that they are entitled to an administrative hearing on this issue and that the ZBA’s 2006 Decision was therefore “arbitrary, capricious, and inconsistent with the law and [the ZBA’s] responsibility under the Zoning By-law to require that applicants seek and obtain all necessary relief in order to use properties inconsistent with the current Zoning By-law.” Id. at 6, ¶26. [Note 10] They request that this court annul the 2006 Decision, declare that they are not barred by the doctrine of “res judicata and that the Plaintiffs have the right to offer evidence to the Zoning Board of Appeals as to whether or not a special permit was validly granted and as to whether or not a variance was required for the relief which Defendant-Kendall obtained in 2003.” Id. at 7.

Kendall Village contends that the plaintiffs are barred by the doctrines of laches, claim preclusion, statute of limitations, and unclean hands; the plaintiffs lack standing; and “[t]he complaint is frivolous, wholly insubstantial and not advanced in good faith in violation of M.G.L. c. 231, § 6F.” Answer of Defendant Kendall Village Cohasset Builders, LLC at 4-5. Kendall Village also filed two counterclaims: (1) an abuse of process and malicious prosecution claim and (2) a G.L. c. 231, § 6F claim. Id. at 5-7. The municipal defendants likewise contend that the statute of limitations has expired and assert that the plaintiffs failed to exhaust their G.L. c. 40A remedies regarding the 2003 Decision. Accordingly, the defendants have filed motions to dismiss and the municipal defendants have also filed a motion for summary judgment.

Other pertinent facts are included in the analysis section below.

Analysis

The plaintiffs’ appeal of the 2006 Decision is, at its core, a collateral attack on the validity of the 2003 Decision. As noted above, the plaintiffs themselves have requested that this court annul the 2006 Decision, declare that they are not barred by the doctrine of “res judicata and that the Plaintiffs have the right to offer evidence to the Zoning Board of Appeals as to whether or not a special permit was validly granted and as to whether or not a variance was required for the relief which Defendant-Kendall obtained in 2003.” Complaint Pursuant to Massachusetts General Laws Chapter 40A, Section 17 at 7 (emphasis added). This the plaintiffs cannot do. G.L. c. 40A, § 17 requires any aggrieved party to appeal a board’s decision “within twenty days after the decision has been filed in the office of the city or town clerk.” See also Iodice v. Newton, 397 Mass. 329 , 333 (1986). The plaintiffs’ argument that Kendall Village requires a variance, not a special permit, in order to maintain a four-family dwelling on the property and any evidence the plaintiffs had to show the ZBA’s 2003 Decision was improper should have been brought in a G.L. c. 40A, § 17 appeal within twenty days of the filing of the 2003 Decision since the ZBA necessarily decided in that decision that a special permit, not a variance, was all that was required. Since no timely appeal from that decision was taken then, no appeal or collateral attack may be taken now. [Note 11] G.L. c. 40A, § 17 (appeal must be taken within twenty days).

The plaintiffs contend that “[t]he 2003 application before the Zoning Board of Appeals and the decision rendered thereon dealt only with whether or not the Defendant Kendall Village met the standards set forth for the conversion of a non-conforming use and also touched upon parking requirement. It did not at any time review or consider the area requirements for a four family home in an R-B District.” Plaintiffs’ Opposition to the Motion of the Defendant, Kendall Village Cohasset Builders, LCC to Dismiss at 10 (filed Feb. 9, 2007). The plaintiffs therefore argue that they were not “under an obligation to raise deficiencies in the Defendant’s application nor was there any legal mechanism to file a form of compulsory counter-claim or to raise legal issues that were overlooked by the Zoning Board of Appeals and by the Defendant Kendall Village.” Id. This argument is entirely incorrect for two reasons. First, contrary to the plaintiffs’ assertions, there was a legal mechanism for the plaintiffs to raise their objections – a G.L. c. 40A, § 17 appeal of the 2003 Decision. Although Pipenbrink filed an application for a special permit, the ZBA noted that the application was filed for the purpose of converting a three-family dwelling into a four-family dwelling. As stated above, the ZBA’s 2003 Decision granting the special permit necessarily involves a determination that a special permit was all that was required for such a conversion. [Note 12] Inherent in such a decision is the determination that a variance was not required. Whether this was the correct decision and whether the ZBA “overlooked” crucial information in coming to such a decision could only be addressed in a timely G.L. c. 40A, § 17 appeal. Absent a due process issue, which does not exist here, the 2003 Decision cannot now be collaterally attacked.

Second, also contrary to the plaintiffs’ assertions, they were obligated to appeal the 2003 Decision if they wished to dispute the ZBA’s determination that a special permit, and not a variance, was all that was required for the conversion. As the Massachusetts Zoning Manual (cited by the ZBA in its 2006 Decision) notes, [c]learly, the failure of an abutter to appeal the issuance of a [building] permit does not, absent a showing of bad faith, preclude that same abutter from later bringing an enforcement action within six years. [Note 13] The same cannot be said of the failure to appeal special permits or variances, however. For example, an abutter aggrieved by the issuance of a variance must appeal the variance decision judicially. It would be a mistake to forego this appeal and later request enforcement and, if necessary, appeal the enforcement officer’s decision, or to appeal a building permit issued on the basis of the variance, to the board of appeals. A court will look closely at the substance of the allegations to see whether the abutter is in fact seeking a second bite of the apple. An abutter seeking to attack the variance decision collaterally by appealing the building permit will have this appeal dismissed.

2 Healy, Martin R., Massachusetts Zoning Manual § 13.3.5, at 13-19 (2005); see also Iodice v. Newton, 397 Mass. 329 , 333, 334 (1986) (“Thus, by its plain language, § 17 establishes that a person aggrieved by a decision of a special permit granting authority must seek review of that decision, if at all, within twenty days of the filing of the decision in question. . . . Regardless of its form, the plaintiff’s action is an appeal within the meaning of G.L. c. 40A, § 17, and it must fail because it was not timely brought. Our decision is consistent with previous decisions of this court and the Appeals Court recognizing that the Legislature intended that affected parties should be able to rely on the decisions of boards of appeals and special permit granting authorities which have not been challenged within a limited period.”). Again, the plaintiffs in this case are “in fact seeking a second bite of the apple,” which they cannot do. 2 Healy, Martin R., Massachusetts Zoning Manual § 13.3.5, at 13-19 (2005).

Finally, the plaintiffs’ argument that they have six years from the issuance of the building permit to object to the plaintiffs’ use of the property is similarly misplaced. The central issues in this case pertain to the validity of the ZBA’s 2003 Decision and not the issuance of the building permit. Even if the issues were related to the issuance of the building permit, several cases have held that the six-year period does not apply where the plaintiffs have actual knowledge “that an allegedly unlawful [building] permit has been issued.” Gallivan v. Zoning Bd. of Appeals of Wellesley, 71 Mass. App. Ct. 850 , 857 (2008) (“The reference was not intended to indicate that an aggrieved party could bypass the process of appealing from the issuance of a permit even when that party is on notice that an allegedly unlawful permit has been issued. We are persuaded, and so hold, that a party with adequate notice of an order or decision that violates a zoning provision must appeal that order or decision to the appropriate permit granting authority within the thirty-day period allotted for such an appeal. Where adequate notice of such order or decision exists, such a person may not lawfully bypass that remedy and subsequently litigate the question by means of a request for enforcement under G.L. c. 40A, § 7.”). Here, the plaintiffs (or their predecessors-in-title) had actual knowledge that a special permit was granted, [Note 14] which allowed the conversion of the dwelling from a three-family to a four. Certainly, the reasoning of Gallivan would apply to prevent the plaintiffs from using G.L. c. 40A, § 7 as a means to avoid the twenty-day appeal period of G.L. c. 40A, § 17. Otherwise, the plaintiffs would be allowed “to take no action for as long as six years, and then undertake proceedings that threaten to undo long-settled expectations and their consequences. This cannot have been the legislative purpose.” Id. at 857-58.

Conclusion

For the foregoing reasons, the defendants’ motions to dismiss and the municipal defendants’ motion for summary judgment are ALLOWED. The plaintiffs’ case is dismissed in its entirety, with prejudice. Defendant Kendall Village shall contact the court to schedule a status conference to determine whether it intends to pursue its abuse of process counter-claim and G.L. c. 231, § 6F claim for attorney’s fees and, if so, to schedule further proceedings as necessary.

SO ORDERED.

By the court (Long, J.)

Attest:

Deborah J. Patterson, Recorder

Dated: 5 January 2009