R. D. MATTHEWS CONSTRUCTION COMPANY, INC. v. THE BOARD OF APPEALS OF THE TOWN OF DUXBURY and RICHARD MACDONALD, as DIRECTOR OF INSPECTIONAL SERVICES for THE TOWN OF DUXBURY

Plaintiff filed its unverified Complaint on October 24, 2002, seeking mandamus relief and a declaratory judgment relative to the interpretation of a special permit issued by Defendant Board of Appeals of the Town of Duxbury (the “ZBA”) in 1979 involving the buildability of certain lots currently owned by Plaintiff. Defendant Richard MacDonald, Director of Inspectional Services for the Town of Duxbury (“Inspectional Services”) (together with the ZBA, “Defendants”) filed an Answer on November 25, 2002.

On December 22, 2005, Plaintiff filed its Motion for Partial Summary Judgment, together with supporting memorandum. [Note 1] Defendants filed their Opposition and Cross-Motion for Summary Judgment on March 3, 2006, together with supporting memorandum and Statement of Additional Material Facts. A hearing was held on all motions on October 4, 2006, and all motions were taken under advisement. At the hearing, this court discussed the issue of Plaintiff’s exhaustion of administrative remedies with the parties and suggested that the parties consider alternative methods of resolving the issues in this case. At a status conference on November 16, 2006, Plaintiff indicated that it was pursuing additional zoning action with Defendants, and the parties asked this court not to act on the cross-motions for summary judgment.

On May 1, 2007, Plaintiff filed its First Amended Complaint, appealing, pursuant to G. L. c. 40A, § 17, two decisions of the ZBA which upheld Inspectional Services’ denial of the buildability of certain lots owned by Plaintiff and the resulting denial of applications for building permits filed by Plaintiff. Defendants filed their Answer on April 9, 2007. On June 1, 2007, Plaintiff filed its Motion for Summary Judgment, together with supporting memorandum, Appendix and Affidavit of Richard D. Matthews. Defendants filed their Opposition and Cross-Motion for Summary Judgment on July 2, 2007, together with supporting memorandum and Statement of Additional Material Facts. On July 31, 2007, Plaintiff filed its Reply Brief. A hearing was held on both motions on October 29, 2007, and the matter was taken under advisement.

Summary judgment is appropriate where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. See Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat=l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 5(c).

This court finds that the following facts are not in dispute:

1. On April 19, 1979, the ZBA approved the application (the “Application”) of Bay State Company (“Bay State”), Clifford F. Youse, and Nancy R. Youse for a special permit to construct a Residential Cluster Development, which was amended by the ZBA on August 29, 1979 (the “Special Permit”). The Application contained supporting documentation, including a Preliminary Analysis, which stated that the single family houses in the Residential Cluster Development would have “an anticipated number of bedrooms not greater than 3 per single family home.” The Special Permit authorized, with conditions, the construction of thirty-nine single family residences in a subdivision known as “Tinkertown Ponds” (the “Subdivision”), and stated that “[t]he application, reports of the town boards and officials, the town consultants, and all other written reports and correspondence filed with this Board are incorporated herein by reference.” [Note 2] The Special Permit also stated, in part:

This Special Permit and the within conditions, limitations and safeguards may be amended, revised or revoked by the Board, acting either on its own motion or on the motion of the Planning Board, building inspector, or of any interested person, after notice and hearing in the manner prescribed by G.L. c. 40A.

Any departure from any representation made by the Permittee in his Application will be cause for review of this Permit and amendment if the Board finds, after notice and hearing, that such departure is significant. Copies of the documents referred to herein have been filed with this decision in the office of the Town Clerk.

This Special Permit shall inure to the benefit of the Bay State Company (the Permittee) only and shall not be assignable to any other person, as defined in [G.L. c. 40A, § 7], except with the prior approval of the Board of Appeals.

This Special Permit shall expire unless construction has been commenced within a period of one (1) year from the date of the filing of the Board’s decision and this permit in the office of the Town Clerk or the final resolution of any appeal. Construction of all parts of the proposed project must be continued through to completion as continuously and expeditiously as is reasonable.

2. Bay State conveyed twelve lots (Lots 26-37) in the Subdivision to Plaintiff by deed dated January 14, 1980 and recorded with the Plymouth County Registry of Deeds (the “Registry”) at Book 4793, Page 296. The deed stated that the sale was “subject to and together with the benefit of the terms, conditions, and restrictions contained or referred to in or imposed by” the Special Permit.

3. By letter dated February 8, 1980, Plaintiff, pursuant to the terms of the Special Permit, informed the ZBA of its status as the building contractor under the Special Permit, and submitted plans for Lots 26 and 37.

4. Prior to May 28, 1982, Plaintiff purchased twenty-three additional lots in the Subdivision from Bay State, for a total of thirty-five lots. [Note 3]

5. On May 28, 1982, Bay State was voluntarily dissolved.

6. Prior to 1986, Plaintiff constructed thirty-two single-family homes of four bedrooms each in the Subdivision pursuant to permits, including building permits, septic system permits, and occupancy permits, issued by the Town of Duxbury (the “Town”). [Note 4] Plaintiff submitted plans for each of these thirty-two houses, all of which showed a four bedroom house. [Note 5] Plaintiff is currently the owner of the three remaining vacant lots in the Subdivision: Lots 18, 20, and 36 (the “Vacant Lots”).

7. On March 8, 1986, the Town adopted an amendment (the “1986 Amendment”) to the Duxbury Protective By-law (the “By-law”) which limited the total number of bedrooms in cluster subdivisions. The 1986 Amendment stated:

In any Cluster Development, the allowable number of bedrooms as defined above shall not exceed three times the number of dwelling units proposed, unless a larger number is authorized upon determination by the Board of Appeals, following recommendation by the Planning Board, that either visual overcrowding will be avoided and town school facilities will not be unreasonably burdened, or that the larger number of bedrooms is appropriate to serve an important housing need.

8. By letter dated January 13, 1997, the Duxbury Board of Health (the “Board of Health”) refused to issue permits to construct septic systems on two of the three Vacant Lots, stating that the number of bedrooms in the Subdivision appeared to exceed those allowed under the By-law. [Note 6] The letter concluded that

the Board voted to disapprove the permits for [Lot 18 and Lot 20] without prejudice because of the need to clarify the zoning issue. . . . When the zoning issue has been resolved, applications for these permits may be resubmitted without any additional application fees.

By letter dated May 8, 1997, the Board of Health stated that on April 10, 1997, it voted to rescind the septic system permit for Lot 36 based on violations of the Special Permit and the By-law.

9. On March 27, 1997, Plaintiff applied to the ZBA for an amendment of the Special Permit to allow construction of houses on the Vacant Lots.

10. By decision dated June 16, 1997, the ZBA denied the application for the amendment (“ZBA Decision 1”). ZBA Decision 1 stated:

In review[ing] the papers submitted to the Board in connection with the original 1979 application for a Special Permit to build the Tinkertown Ponds development, the Board noted that the Preliminary Qualifications Site Analysis and Development Application dated January 19, 1979 and submitted by [Bay State] and Dan Orwig specified in paragraphs 804.6.2 that the “anticipated number of bedrooms [will be] not greater than 3 per single family home” and that “the total number of homes being proposed is 39.”. . . .

. . . .

The Board . . . finds that [Bay State Company] substantially and repeatedly over a period of more than 15 years violated the Zoning Bylaw and failed to comply with the Special Permit. The board is not inclined to whitewash and indeed exacerbate [the company’s] gross failure to comply with the Special Permit and Zoning Bylaw by granting the application for an amendment to the Special Permit to approve the existing situation and allow further building inconsistent with the approved plans and the Zoning By-law.

11. On July 1, 1997, Plaintiff appealed ZBA Decision 1 to the Land Court (Misc. Case No. 239923). The complaint contained Count I (the appeal of ZBA Decision 1) and Count II (whether the 1986 Amendment applied to the Vacant Lots).

12. By decision dated January 25, 2000 (the “Land Court Decision”), the Land Court ruled, with respect to Count I, that Plaintiff lacked standing to appeal ZBA Decision 1 because the Special Permit had not been properly assigned to Plaintiff. With respect to Count II, the Land Court Decision stated:

At oral argument, the Town conceded that the 1986 amendment does not apply to the remaining lots. Instead, defendants maintain that issues relating to the Tinkertown subdivision are governed by the amended special permit. Consequently, I grant summary judgment to the Company [Matthews] on Count II of the amended complaint and rule that the 1986 amendment does not affect the use of the remaining lots.

R.D. Matthews Constr. Co., Inc., v. Tucker, 8 LCR 29 , 30-31 (2000) (Misc. Case No. 239923) (Lombardi, J.).

13. By letter dated January 24, 2002, Plaintiff requested Inspectional Services to determine whether the Vacant Lots were buildable for a three or four bedroom home. [Note 7] Plaintiff submitted a copy of this letter on April 19, 2002.

14. On January 29, 2002, Martin J. Drilling, the Receiver for Bay State appointed by the Plymouth County Superior Court, assigned Bay State’s rights in the Special Permit to Plaintiff, and requested that the ZBA approve the assignment.

15. By letter dated February 1, 2002, Plaintiff requested the ZBA to approve the assignment by Bay State to Plaintiff of all rights in the Special Permit. Plaintiff submitted a copy of this letter on April 19, 2002.

16. On April 29, 2002, Inspectional Services wrote a letter to Plaintiff and enclosed a copy of the Land Court Decision in response to Plaintiff’s questions.

17. On March 12, 2003, the Town adopted an amendment of the By-law (the “2003 Amendment”). Section 704.6 of the 2003 Amendment states, in part:

In any cluster development, if a special permit has been granted as of July 1, 2001, the allowable number of bedrooms as defined above shall not exceed three times the number of dwelling units proposed, unless a larger number is authorized upon determination by the Board of Appeals, following recommendation by the Planning Board, that either visual overcrowding will be avoided and Town school facilities will not be unreasonably burdened, or that the larger number of bedrooms is appropriate to serve an important housing need.

18. In November 2004, the ZBA approved Plaintiff’s request for an approval of the assignment of the Special Permit.

19. After obtaining approval of the Board of Health for a septic system permit for Lot 36, Plaintiff filed an application for a building permit for a four bedroom house for Lot 36 on April 1, 2005. [Note 8] By letter dated April 26, 2005, Inspectional Services denied Plaintiff’s application for the building permit for Lot 36, stating in part: “At this time, the application is denied. [Town Counsel] advised me that he needs to review the legal file regarding this application. Upon that review, Town Counsel will advise me to issue or not issue the permit.”

20. On November 2, 2006, Plaintiff filed with Inspectional Services another application for a building permit for Lot 36 for a four bedroom house, and a request for a determination that the Vacant Lots were buildable under the By-law for four bedroom houses, and that the Vacant Lots were exempt from the 2003 Amendment.

21. By letter dated November 14, 2006, Inspectional Services determined that the Vacant Lots were not presently eligible for building permits, stating that, “[i]n order for the lots to become eligible for building permits, the Special Permit will have to be amended so as to approve, after the fact, the past violations and so as to authorize the additional bedrooms being contemplated for the Three Lots.” Inspectional Services further stated that

[s]ince I have determined that an amendment to the Special Permit is necessary in order to make the Three Lots eligible for building permits, it is irrelevant whether the Three Lots are “exempt” from the 2003 amendment to the Zoning By-law. Any request for amendment of the Special Permit filed with the Board at this stage will be subject to the current Zoning By-Law, including the provisions of Secion 704.6 as amended by the 2003 Annual Town Meeting Vote.

22. By letter dated November 20, 2006, Inspectional Services denied the application for the building permit for Lot 36.

23. Plaintiff appealed the two determinations of Inspectional Services to the ZBA. The ZBA held a public hearing on the two appeals on January 25, 2007. By decisions dated March 8, 2007, and filed with the Duxbury Town Clerk on March 12, 2007, the ZBA denied both appeals (“ZBA Decision 2” and “ZBA Decision 3”). ZBA Decision 2 stated that

[t]he Board agreed that the homes already constructed in the Tinkertown development had a number of bedrooms in excess of that allowed under the existing special permit, and that the decision of the Director of Inspectional Services denying an application for a permit to construct an additional new single family home was thus correct. The Board also noted that this decision was consistent with what the Board had said in its 1997 decision, and that Town counsel had advised that the lot in question was not a buildable lot. [Note 9]

The ZBA used almost identical language in ZBA Decision 3.

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Plaintiff argues in its summary judgment motion that ZBA Decision 2 and ZBA Decision 3 were both arbitrary, capricious, and unreasonable and beyond the scope of authority of the ZBA because the ZBA misinterpreted the Special Permit and applied conditions which do not exist. Defendants claim that such decisions were within the scope of their authority because of the Special Permit, and because septic system permits have not been issued for the Vacant Lots. [Note 10] I shall address both of these issues.

The Special Permit.

The Special Permit authorized the construction of thirty-nine houses in the Subdivision but failed to limit the size of, or the number of bedrooms in, each house. Supplementary documentation filed with the Application stated that the applicant “anticipated” that the number of bedrooms in each house would be no greater than three. The Special Permit stated that its terms could be amended by the ZBA after notice and hearing if “any departure from any representation made by the Permittee in his Application . . . is significant.” Between 1980 and 1985, the Town issued thirty-two building permits for four bedroom houses to Plaintiff. [Note 11] In all thirty-six building permits that were issued, there was never any hearing before the ZBA pursuant to the terms of the Special Permit relative to the size of the houses or the number of bedrooms. Furthermore, none of the Town agencies or boards raised any objections to the construction of any of these houses, or questioned the entity which was applying for the building permits. [Note 12]

The 1986 Amendment limited the total number of bedrooms in a cluster subdivision equal to three times the number of dwelling units proposed. After 1985, however, there was no further activity in the Subdivision until 1997, when Plaintiff was denied septic system permits for the Vacant Lots by the Board of Health on the basis of a purported violation of the Special Permit and the 1986 Amendment. [Note 13] In March 1997, Plaintiff applied to the ZBA for an amendment of the Special Permit, which was denied by the ZBA (ZBA Decision 1) based on the purported violations of the terms of the Special Permit and the 1986 Amendment due to the construction of the four bedroom houses.

In July 1997, ZBA Decision 1 was appealed to the Land Court, which ruled that the 1986 Amendment did not apply to the Special Permit (based on such concession by the ZBA). Furthermore, in the Land Court Decision, Judge Lombardi concluded that “[w]ithout evidence that the appeals board approved the assignment of the amended special permit, the Company lacks standing to pursue [the appeal of ZBA Decision 1]. I, therefore, do not need to reach any of the other issues raised by the parties.” [Note 14]

On January 22, 2002, Bay State assigned the Special Permit to Plaintiff, and on November 1, 2004, the ZBA approved the assignment, removing the assignment as an issue to the enforcement of the Special Permit. As a result, Plaintiff appealed to the ZBA the Inspectional Services decision that the Vacant Lots were not eligible for building permits because of the terms of the Special Permit.

As discussed, supra, there is no valid basis for requiring only three bedrooms under the Special Permit. There is no such condition in the Special Permit, and there was no such condition in the By-law at the time of the issuance of the Special Permit. The Land Court has already determined that the 1986 Amendment, which attempts to limit the number of bedrooms in a cluster development, is not applicable to the Special Permit. Defendants do not raise the issue as to the applicability of the 2003 Amendment; however, if they did it would share the same fate. [Note 15] Plaintiff gave uncontested evidence that it complied with the two conditions of the Special Permit raised in this matter, i.e. the filing of plans with the Town and the designation of the builder of the homes. The ZBA does not argue that Plaintiff did not comply with either of these conditions. In addition, the Special Permit authorized the ZBA, if it felt it necessary, to set up a hearing relative to Plaintiff’s representations in the Application. The ZBA never did this, which is an indication that it was not concerned with the issue. As a result, I find that the Special Permit does not limit the construction of homes in the Subdivision to three bedrooms each.

The Septic Permits.

Defendants also contend that since the Board of Health denied the applications for septic systems for the Vacant Lots, which were not appealed, Plaintiff is estopped from proceeding with any action seeking building permits for the Vacant Lots. In 1997, the Board of Health initially issued a septic permit for Lot 36, then rescinded it, and also denied septic permits for the other two Vacant Lots. However, the Board of Health made it clear in its 1997 denial letter that such denial was “without prejudice because of the need to clarify the zoning issue. . . . When the zoning issue has been resolved, applications for these permits may be resubmitted . . . .” There is nothing in the summary judgment record that references any further action by the Board of Health in this regard, other than the Board of Health’s apparent approval of a septic system permit for Lot 36 in early 2005. As such, I find that there is nothing to prohibit Plaintiff from going forward on its application for septic system permits for Lots 18 and 20, or a building permit for any of the Vacant Lots. Since ZBA Decision 2 involved the denial of the building permit for Lot 36, once the issue of the validity of the Special Permit has been determined, there is no basis for the denial of the building permit provided that all other requirements are met. As a practical matter, the common thread between both ZBA Decision 2 and ZBA Decision 3 is the issue of the buildability of the Vacant Lots, and, in fact, the language of the two decisions was nearly identical. In both decisions, the ZBA stated that the terms of the Special Permit forbade any more bedrooms in the Subdivision, and, thus, Inspectional Services could not issue any more building permits. As discussed, supra, this is not the case.

Laches.

Finally, Plaintiff argues that even if the Special Permit were interpreted by this court to limit construction to only three bedroom houses, the issue of laches applies, as discussed in Chilson v. Zoning Bd. of Appeal of Attleboro, 344 Mass. 406 (1962). In Chilson, the Supreme Judicial Court took the position that where a town has acted in a certain way under colorable legal jurisdiction, it would be inequitable to enforce a different result at a later date. Defendants argue that a municipality cannot be estopped from enforcing its zoning bylaw, but as discussed, supra, neither the 1986 Amendment nor the 2003 Amendment are enforceable in this context, so Defendants’ argument cannot stand. However, it is not necessary for this court to rule on this issue, since I have found that the Special Permit does not limit construction to three bedrooms.

As a result of the foregoing, I find that the ZBA’s decisions relative to the enforcement of terms extraneous to the Special Permit are arbitrary, capricious, and unreasonable, and beyond the scope of its authority. I ALLOW Plaintiff’s Motion for Summary Judgment and DENY Defendants’ Cross-Motion for Summary Judgment. Specifically, the Town (by and through the Board of Health, Inspectional Services, or the ZBA) cannot deny Plaintiff’s applications for a septic permit or a building permit regarding the Vacant Lots on grounds that four-bedroom plans violate the Special Permit.

Judgment to enter accordingly.

Alexander H. Sands, III

Justice

Dated: March 12, 2009