Plaintiff June M. Lydon, Trustee of the Lydon Family Trust (the Trust) filed its unverified complaint on April 30, 2009, appealing pursuant to G.L. c. 40A, § 17, a decision of Defendant Town of Milton Board of Appeals (the ZBA), which granted a use variance and a special permit to Defendant Thomas Coulter (Coulter) (together with the ZBA, Defendants) pertaining to property located at 919 Blue Hill Avenue in Milton, Massachusetts (Locus). A case management conference was held on July 1, 2009. At a hearing held on February 19, 2010, this court allowed Defendants Motion to Remand the matter back to the ZBA, and issued its Order for Remand to the Milton Board of Appeals. On April 15, 2010, the ZBA issued its remand decision. On May 3, 2010, Plaintiff filed its First Amended Complaint, appealing the ZBAs remand decision.
Plaintiff filed its Motion for Summary Judgment on May 14, 2010, together with supporting memorandum, Statement of Material Facts, and Appendix including Affidavits of Matthew J. Dunn, Esq. and Frederick Lydon. On June 14, 2010, the ZBA filed its Opposition and Cross-Motion for Summary Judgment, together with supporting memorandum, Statement of Additional Material Facts, and Appendix including Affidavits of William B. Clark, Jr., Frederick G. Barry, Jr., Esq., and Diane Colligan. Coulter filed his support of the ZBAs Cross-Motion on June 16, 2010. Plaintiff filed its Opposition to Cross-Motion and Reply on July 14, 2010. A hearing was held on all motions on August 30, 2010, at which time the matter was taken under advisement.
This court entered a Judgment and issued a Decision on September 27, 2010 (Land Court Decision 1), finding that Plaintiff lacked standing to challenge the decision of the ZBA and dismissed the Complaint. Plaintiff filed a Notice of Appeal from Land Court Decision 1 on October 1, 2010. In a 1:28 decision dated June 29, 2011 (10-P-1950), the Appeals Court found that the evidence suffices to support the plaintiffs claim of standing, reversed this courts judgment of dismissal, and remanded the case to this court for judgment on the merits. See Lyons v. Bd. of Appeals of Milton, 79 Mass. App. Ct. 1127 (2011).
On August 1, 2011, Plaintiff filed its Motion to Renew Motion for Summary Judgment. On August 8, 2011, Defendants filed their Cross-Motion to Renew Their Previously Filed Cross-Motion for Summary Judgment. On August 9, 2011, Plaintiff filed its Motion for Leave to Reply to Defendants Statement of Additional Material Facts. A status conference was held on September 1, 2011, at which the parties agreed to go forward on their motions without a hearing. On September 15, 2011, Plaintiff filed a Response to Defendants Statement of Additional Material Facts, and at that time the matter went under advisement.
By decision dated May 3, 2012, together with a Judgment of the same date (collectively, Land Court Decision 2 ), I found and decided, inter alia, the following: a) Coulter had the right to sell produce, as construed expansively by the Zoning Bylaws of the Town of Milton (the Bylaws), raised both on and off Locus and to operate a florist business on Locus pursuant to a special permit (Special Permit 3) and variance (Variance 1) issued by the ZBA on July 13, 1984 to Coulters predecessors in interest; b) Conditions 1, 4, 5 and 8 of a special permit issued by the ZBA on April 21, 2009 (Special Permit 4) were invalid as they authorized by special permit uses that may be authorized only by variance; c) Conditions 3 and 12 of Special Permit 4 were invalid because they authorized by special permit a use that may be authorized only by variance; d) Condition 11 of Special Permit 4 was invalid because it authorized by special permit a use that may be authorized only by variance; e) the ZBA articulated sufficient findings in its decision to grant Special Permit 4 to the extent that Special Permit 4 allowed the sale of fruits, vegetables, and Christmas Trees not raised on Locus; f) Special Permit 4 was not substantially detrimental to the public good, did not substantially derogate from the Bylaws purpose, and was not detrimental to a residential neighborhood; all only to the extent that it allowed for the sale of fruits, vegetables and Christmas trees not raised on Locus; g) the ZBA did not act arbitrarily, capriciously or unreasonably in granting Special Permit 4 only to the extent that it allowed for the sale of fruits and vegetables raised on Locus and Christmas trees not raised on Locus; h) Conditions 2, 6, 9, 10, and 13 of Special Permit 4 remain valid only to the extent that Special Permit 4 authorized the sale of fruits, vegetables, and Christmas trees not raised on Locus; i) Defendants failed to establish that literal enforcement of the Bylaws would result in a substantial hardship based on the soil conditions, shape, or topography of Locus that do not generally affect the residential zoning district in which Locus is found; and, j) a variance to operate a landscaping business granted by the ZBA on April 15, 2010 (Variance 3) was annulled.
On August 16, 2012, Plaintiff filed a Verified Complaint for Civil Contempt, which is the key dispute in the case-at-bar. In this Complaint, Plaintiff alleged that Coulter, in contravention of Land Court Decision 2's annulment of Variance 3, has continued to operate a landscaping business on Locus without interruption since Land Court Decision 2 was issued by this court. A pre-trial conference was held on November 14, 2012. A site view and an Evidentiary Hearing at the Land Court in Boston were held on December 18, 2012. The parties filed their post-trial briefs on February 25, 2013, and at that time the matter went under advisement. On February 28, 2013, Plaintiff filed a Motion to Supplement the Evidence Presented at the Evidentiary Hearing (the Motion to Supplement), together with Affidavit of Frederick A. Lydon. On March 11, 2013, Coulter filed an Opposition to the Motion to Supplement. A hearing on the Motion to Supplement was held on March 12, 2013, and the matter was taken under advisement. A decision of todays date has been issued (the Decision). In accordance with the Decision, it is hereby:
ORDERED and ADJUDGED that Land Court Decision 2 constitutes an injunction.
ORDERED and ADJUDGED that Land Court Decision 2 was not stayed by the appeal of Land Court Decision 2 (the Appeal).
ORDERED and ADJUDGED that Coulter was in contempt of Land Court Decision 2 for the period of May 3, 2012 through October 10, 2012.
ORDERED and ADJUDGED that Coulter was in contempt of Land Court Decision 2 for the period of October 10, 2012, through December 18, 2012.
ORDERED and ADJUDGED that $175 per hour and $250 per hour are reasonable rates for Plaintiffs counsel, Attorney Matthew Dunn, in this matter.
ORDERED and ADJUDGED that Plaintiff cannot recover any costs for its efforts in litigating the Appeal, pursuing an administrative remedy through the Town, and seeking to prevent and then later appeal a zoning amendment passed by the Town of Milton that affects the allowed uses on Locus (the Zoning Amendment).
ORDERED and ADJUDGED that Plaintiff is entitled to costs incurred in pursuing and prosecuting the Complaint for Contempt.
ORDERED and ADJUDGED that the Motion to Supplement is ALLOWED IN PART and Plaintiff is entitled to all fees it incurred on the date of the Evidentiary Hearing and Plaintiff is entitled to one half of all fees it incurred relative to post-trial briefing. This court shall not award any fees relative to preparation of the Motion to Supplement.
ORDERED and ADJUDGED that Plaintiff shall be entitled to his legal fees in the amount of $9,575.00, as outlined in Exhibit A attached to the Decision. Within thirty days from the date of this Order, Coulter shall pay Plaintiff the sum of $9,575.00.