SAMUEL BOUTIN v. PETER CONNER, DAVID PECK, MICHAEL MAIN, EDWARD CONROY and WILLIAM KOEHAN as members of the Town of Plymouth Zoning Board of Appeals, and AUGUSTINO DIODATO

Introduction

Defendant Augustino Diodato received a zoning permit from the Plymouth building inspector for construction of a single family residence. Plaintiff Samuel Boutin, the owner of a neighboring property, appealed that grant to the Zoning Board of Appeals, which rejected the appeal and upheld the permit. Mr. Boutin then appealed the Board’s decision to this court pursuant to G.L. c. 40A, §17, arguing that Mr. Diodato’s property lacks sufficient buildable upland.

Mr. Diodato has now moved to dismiss this case, contending that these issues were resolved in his favor, against Mr. Boutin, in the previous case of Boutin v. Town of Plymouth Bd. of Appeals and Augustino Diodato, Plymouth Superior Court, 2009-CV-01478B, aff’d 81 Mass. App. Ct. 1129 (2012), Mem. & Order Pursuant to Rule 1:28, and are thus res judicata. I agree. The motion to dismiss is thus ALLOWED.

Discussion

Mr. Diodato brought his motion under Mass. R. Civ. P. 12(b)(1) (lack of subject matter jurisdiction). This was incorrect. This court plainly has subject matter jurisdiction of this case, a G.L. c. 40A, §17 appeal from a final zoning board decision. See G.L. c. 185, §1(p). Res judicata analysis takes place within that jurisdiction.

Most typically, res judicata is an affirmative defense raised in answer to the complaint and then addressed in the context of a motion for judgment on the pleadings. See Mass. R. Civ. P. 12(c); Kerr v. Menard, Murphy & Walsh LLP, Mass. Appeals Ct. Case No. 11-P-1194, Mem. & Order Pursuant to Rule 1:28 (Aug. 23, 2012). However, “in certain circumstances the defense of former adjudication can be presented in a rule 12(b)(6) context where all the materials necessary for the decision are official records available to the judge ruling on the motion and not subject to dispute, and can be read together with the complaint.” Boyd v. Jamaica Plain Co-Operative Bank, 7 Mass. App. Ct. 153 , 156-57, n. 7 (1979) (internal citations omitted). See also Cavanagh v. Cavanagh, 396 Mass. 836 , 838 (1986); Osserman v. Jacobs, 369 Mass. 200 , 201 n. 3 (1975). Such is the situation here. The Rules of Civil Procedure direct that “all pleadings shall be so construed as to do substantial justice.” Mass. R. Civ. P. 8(f). Thus, this Court considers and evaluates Mr. Diodato’s motion to dismiss as if it had been brought under Rule 12(b)(6).

For purposes of Rule 12(b)(6), all well-pleaded factual allegations contained in the complaint, and all reasonable inferences from those allegations, are taken as true. [Note 1] Curtis v. Herb Chambers I-95 Inc., 458 Mass. 674 , 676 (2011). Legal conclusions cast in the form of factual allegations, subjective characterizations, and “conclusory descriptions of a general scenario which could be dominated by unpleaded facts” are disregarded, Schaer v. Brandeis University, 432 Mass. 474 , 477-478 (2000), as are allegations which contradict or mischaracterize the documents upon which they are based or to which they refer. To the extent they do, the documents control. See Ng Bros. Constr. Inc. v. Cranney, 436 Mass. 638 , 647-48 (2002); O’Brien v. Analog Devices, 34 Mass. App. Ct. 905 , 906 (1993). The complaint is then examined to see if its factual allegations are “enough to raise a right to relief above the speculative level.” Iannacchino v. Ford Motor Co., 451 Mass. 623 , 636 (2008). When, as here, the defense of res judicata has been raised, the court compares the claims and allegations in the complaint to the record in the case alleged to be res judicata, and takes judicial notice of the docket entries, rulings, and contents of other papers filed in the previous action. See Kerr, Mass. Appeals Ct. Case No. 11-P-1194, Mem. & Order Pursuant to Rule 1:28 at 1 and cases cited therein.

“Res judicata is the generic term for various doctrines by which a judgment in one action has a binding effect in another. It comprises [both] ‘claim preclusion’ and ‘issue preclusion.’” Heacock v. Heacock, 402 Mass. 21 , 23 n. 2 (1988).

Claim preclusion “prohibits the maintenance of an action based on the same claim that was the subject of an earlier action between the same parties or their privies.” Id. “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. Bd. of Registration in Med., 444 Mass. 837 , 843 (2005).

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, 402 Mass. at 23, n.2. “Before precluding a 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.” Kobrin, 444 Mass. at 843 (internal citations and quotations omitted).

As noted above, the case alleged to be res judicata of this matter is Boutin v. Town of Plymouth Bd. of Appeals and Augustino Diodato, Plymouth Superior Court, Case No. 2009-CV-01478B, aff’d 81 Mass. App. Ct. 1129 (2012) (“Boutin I”), involving the identical parties and the identical property, which was fully adjudicated on the merits and affirmed in a written decision by the Appeals Court. The analysis thus begins with the facts, claims and issues in that action.

In 2009, Mr. Diodato purchased three contiguous parcels on Bay Shore Drive/Rocky Hill Road in Plymouth (the “property”). These three parcels were laid out in a 1948 subdivision plan, prior to the Town’s adoption of its first zoning bylaw (1951), and have been held in common ownership since that time. The parcels are located in a section of the Town zoned under § 205-42 of the bylaw for R-25 residential use, allowing for single-family home development so long as the property in question meets certain conditions. Before a home can be constructed in an R-25 zone, the Town’s zoning bylaw requires that the property have at least 110 feet of road frontage and contain a minimum of 25,000 square feet. Section 205-39 of the bylaw allows wetland area on a property to count among these 25,000 square feet so long as 10,000 square feet or 60% of the property, whichever is less, is “upland” (i.e., lies outside of the wetland area).

Under the Town’s zoning procedures, zoning approval and building approval are two separate processes. An owner must secure a “zoning permit” certifying compliance with the zoning bylaw before obtaining a building permit to build a structure permissible under the bylaw. This case, like Boutin I, concerns a zoning permit for the property.

Shortly after purchasing the property, Mr. Diodato submitted a Notice of Intent with the Conservation Commission detailing his plans to construct a single-family home and applied to the building inspector for a zoning permit. In support of his application, he attached his design engineer’s calculations, which reflected 112 feet of road frontage, a total area of 24,387 square feet, and 2,400 of Isolated Lands Subject to Flooding (ILSF) (10% of the property’s total area). The building inspector reviewed the application and issued a zoning permit.

Plaintiff Samuel Boutin, who owns a parcel within 300 feet of Mr. Diodato’s property, appealed the permit to the town’s Zoning Board of Appeals. In its decision affirming the issuance of the permit, the Board ruled that, although the property’s total area is less than the current bylaw’s 25,000 square footage requirement, the property has preexisting use protection under G.L. c. 40A, § 6 on that issue. [Note 2] With respect to the upland/wetland issue (Bylaw §205-39), the Board noted that G.L. c. 40A, §6 might provide grandfather protection “since the effect of this requirement is to require larger lot areas,” but did not reach that question because it found that the building inspector had reasonably relied on Mr. Diodato’s design engineer’s conclusion that the property contains 2,400 square feet of ILSF and thus fully satisfies § 205-39 of the bylaw.

In its decision, the Board required as a condition to Mr. Diodato obtaining a building permit that Mr. Diodato “submit revised calculations of upland buildable area” following the Conservation Commission’s further investigation into the wetlands area. Following its investigation, in January 2010, the Conservation Commission issued an order of conditions approving Mr. Diodato’s plans for constructing the home on the condition that construction proceed in accordance with Mr. Diodato’s Notice of Intent. The Commission’s consultant calculated the ILSF on the property at 2,621, slightly higher than Mr. Diodato’s design engineer’s calculation, but still only 11% of the property’s total land area. The Commission was thus satisfied that the property was compliant with §205-39.

Mr. Boutin appealed the Board’s decision to the Plymouth Superior Court pursuant to G.L. c. 40A, §17. On cross-motions for summary judgment, the Superior Court upheld the Board’s decision and dismissed Mr. Boutin’s complaint. The Superior Court agreed that the property was protected by G.L. c. 40A, §6 and thus that the current bylaw’s minimum land area requirement did not apply. It also agreed that the property satisfied § 205-39 of the bylaw regarding minimum upland area, holding that the Board’s determination was “based on substantial evidence” and was not arbitrary or capricious. Boutin I, Plymouth Superior Court, Mem. of Decision & Order on Plaintiff Samuel Boutin’s and Defendant Augustino Diodato’s Cross Motions for Summary Judgment (May 24, 2011).

On appeal from the Superior Court, the Appeals Court affirmed the judgment dismissing Mr. Boutin’s claims in a written decision pursuant to Rule 1:28. The Appeals Court noted that, although the Board mentioned G.L. c. 40A, § 6 in connection with its analysis of § 205-39, its decision with respect to § 205-39 did not turn on whether G.L. c. 40A, § 6 applied. Instead, the Appeals Court noted, the Board reasonably found that the property satisfies the minimum upland requirement of § 205-39. The Appeals Court also held that the Board’s decision on the zoning permit was final and conclusive. Although the Board’s decision appeared to condition the issuance of the zoning permit on Conservation Commission approval, this was a drafting error. All findings and rulings necessary to uphold the zoning permit were duly and properly made, and the Board fully and unambiguously denied Mr. Boutin’s appeal of that permit. Boutin I, Appeals Court, Mem. & Order Pursuant to Rule 1:28 (Apr. 19, 2012).

While the case was pending in the Appeals Court, Mr. Diodato filed a second application for a zoning permit with a revised, downsized design for the home he intended to build. Mr. Diodato did not attach calculations or other information to this application to show that his revised design plan satisfied the bylaw, but the pertinent information regarding the property remained on file with the building inspector from the earlier application. The building inspector then issued a zoning permit, as he had the earlier one. Mr. Boutin again appealed, and the Board again denied it, upholding the grant of the permit. Mr. Boutin then filed this G.L. c. 40A, §17 appeal to this court.

Claim Preclusion Bars this Court from Entering a Judgment on the Claim Challenging the Property’s Buildability

As noted above, claim preclusion makes a valid final judgment binding on the parties and prevents relitigation of all matters either adjudicated or that could have been adjudicated in the action. Kobrin, 444 Mass. at 843. Claim preclusion bars a court in a second lawsuit from entering a judgment on a claim decided in a prior lawsuit when three elements are met: “(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.” Id. The party asserting claim preclusion has the burden of proving these elements. McSorley v. Town of Hancock, 11 Mass. App. Ct. 563 , 565 (1981).

The first element of claim preclusion is readily met in this case. The parties in this action, Mr. Boutin, Mr. Diodato and the Board, are the same parties as in the prior action in the Appeals Court and Superior Court.

The second element of claim preclusion requires that the claim asserted in a subsequent action be the same as a claim asserted in a prior action. See id.; TLT Constr. Corp. v. A. Anthony Tappe & Assoc., Inc., 48 Mass. App. Ct. 1 , 8 (1999). A claim is the same as a prior claim “if it is derived from the same transaction or series of connected transactions.” Id. (quoting Saint Louis v. Baystate Med. Ctr., Inc., 30 Mass. App. Ct. 393 , 399 (1991). A court must “determine[] pragmatically” what facts constitute a transaction or series by considering several factors. Saint Louis, 30 Mass. App. Ct. at 399 (quoting Restatement (Second) of Judgments § 24(1)). These factors include whether the facts are related in origin or motivation and whether they form a convenient trial unit. Id. In addition, a court should consider whether viewing the facts as part of the same transaction serves the policy purpose behind res judicata of sparing courts from hearing repetitive actions based on the same wrong. Id.

Considering these factors, the claim in this case arises from the same claim that the parties already litigated in the Superior Court. First, in relevant part, the facts in this case are identical to those in the prior action. At issue in that case and this is the question of whether the Diodato property is buildable under the zoning bylaw. In the prior action, Mr. Boutin challenged the Board’s determination that Mr. Diodato’s property was buildable. The Superior Court upheld the Board’s finding, and the Appeals Court affirmed this ruling. In the action currently before this Court, Mr. Boutin again challenges the buildability of Mr. Diodato’s property. That the present case involves development plans that differ from Mr. Diodato’s original plans, which were at issue in the prior case, does not affect the simple fact that the claims in both cases originate from a challenge to the buildability of Mr. Diodato’s property under the bylaw. The property’s frontage, total lot area, and total upland area are characteristics solely of the land and do not change just because an existing or proposed structure on the property changes. This finding is particularly true in light of the fact that Mr. Diodato’s revised development plans call for a structure that fits within the building footprint he planned in his previous design. Additionally, although they are technically separate acts of the building inspector, the two zoning permit approvals concerned only the identical question whether the property is buildable. Accordingly, a challenge to the property’s buildability is of the same origin and motivation as the prior claim.

Second, the facts at issue here form a convenient trial unit. The facts at issue in the present case are the same as those at issue in the prior case – namely, the sufficiency of the property’s square footage for buildability and the sufficiency of the property’s upland area. These factual issues also pertain to the characteristics of a single piece of property. Thus, the facts at issue in the action before this Court form a convenient trial unit.

Based on the two considerations above, the action in this case arises out of the same transaction as that in the prior case. This finding is consistent with the policy purpose underlying the doctrine of res judicata, which is to prevent courts from hearing repetitive actions based on the same wrong. In the prior action, Mr. Boutin challenged Mr. Diodato’s plans to construct a single-family home on the property. As the owner of a neighboring property, Mr. Boutin asserted that he was aggrieved by the Board’s approval of the zoning permit’s issuance, which would ultimately facilitate the construction of a home on the property. Mr. Boutin alleged that Mr. Diodato’s property did not conform to the standards set forth in the Town’s zoning bylaw and that the property was therefore not buildable. Both the Superior Court and Appeals Court upheld the zoning permit’s issuance, thus rejecting Mr. Boutin’s claim that the property was not buildable. If this Court were to entertain Mr. Boutin’s new claim challenging the property’s buildability, it would be rehearing a claim that other courts have already adjudicated. Again, the fact that the present case involves design plans that differ from the original design plans at issue in the prior case does not affect the claim preclusion analysis because the claim in both cases is, at bottom, a challenge to the property’s buildability independent of design plans. Therefore, the claim in the present case arises from the same transaction as the claim in the prior case.

Finally, the third element of claim preclusion requires that the prior proceeding has resulted in a final decision on the merits. By ruling in the prior case on the parties’ cross-motions for summary judgment, the Superior Court entered a final judgment on the merits, finding that the Board had not acted arbitrarily or capriciously in concluding that the property was buildable under the bylaw and upholding the issuance of the zoning permit. The Appeals Court subsequently affirmed this judgment. Thus, a final judgment entered in the prior case on the claim concerning whether Mr. Diodato’s property is buildable.

For the foregoing reasons, claim preclusion prevents this Court from ruling on the buildability of Mr. Diodato’s property. In the action currently before this Court, the parties are the same as in the prior action, the claim involves the same transaction as the prior action, and a final judgment on the merits entered in the prior action. In the prior case, Mr. Boutin’s claim challenged the buildability of Mr. Diodato’s property. The Board held – and the Superior Court and Appeals Court affirmed – that the lot was buildable. Whether this conclusion is factually and legally “correct” or not (Mr. Boutin claims it is not, contending that the Boutin I Board and courts misapplied G.L. c. 40A, §6 and miscalculated the upland area) [Note 3] is now of no consequence. These matters are res judicata, and this court has no authority to reconsider them.

Issue Preclusion Bars this Court from Reconsidering the Legal and Factual Issues Underlying Mr. Boutin’s Renewed Claim

The doctrine of issue preclusion provides: “[W]hen an issue of fact or law is actually litigated and determined by a valid final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.” Fireside Motors, Inc. v. Nissan Motor Corp. in U.S.A., 395 Mass. 366 , 372 (1985) (quoting Restatement (Second) of Judgments § 27). As previously noted, issue preclusion applies when (1) a final judgment on the merits entered in the prior action, (2) the party against whom preclusion is asserted was a party (or was in privity with a party) to the prior action, and (3) the issue in the prior action is identical to the issue in the current action. Kobrin, 444 Mass. at 843. In addition, the issue must have been essential to the judgment in the prior action. Id. Where a prior court has deliberately left open an issue essential to the judgment, however, a subsequent court is not precluded from litigating that issue. See Kirker v. Bd. of Appeals of Raynham, 33 Mass. App. Ct. 111 , 113 (1992).

As a preliminary matter, regardless of the particular issue in question, the first and second prongs of the issue preclusion test are met in this case. First, the underlying issues were actually litigated in the prior action and, as discussed above, a valid final judgment entered on the merits. Second, Mr. Diodato asserts issue preclusion against Mr. Boutin, who was the plaintiff in the prior action, thus satisfying the second prong.

With respect to the third prong, in determining whether an issue in the prior action is identical to an issue in the current action, this Court need only consider those issues essential to the final judgment in the prior action. Accord Kobrin, 444 Mass. at 843; Tuper, 428 Mass. at 134-35. In the prior case, two issues [Note 4] were essential to the Board’s decision to uphold the issuance of the zoning permit to Mr. Diodato and, by extension, to the Superior Court’s and the Appeals Court’s holdings affirming that decision: (1) whether the property satisfied the bylaw’s minimum lot area requirement, and (2) whether the property had sufficient upland area for development under the bylaw’s wetland protection provision. In applying issue preclusion analysis, the inquiry pertaining to each issue is twofold: whether an issue presented in the current action is identical to an issue essential to the prior judgment, and whether the prior judgment conclusively settled that issue or left it open.

Regarding the first issue, the Board determined that the property’s total area was only 24,387 square feet and therefore did not meet the 25,000 square-foot minimum area under § 205-42 in the current bylaw. The Board held that this nonconformance did not matter because the property was entitled to single-lot protection as a preexisting use under G.L. c. 40A, §6; the lots had been held in single common ownership since 1948 (predating the Town’s adoption of zoning in 1951), and fully complied even with the 1951 bylaw. Therefore, the Board concluded, the bylaw’s minimum square footage requirements did not apply to the property. The Superior Court upheld the application of G.L. c. 40A, §6 to the property on this issue (treating the three lots as one property), and the Appeals Court affirmed. Boutin I.

In the action now before this Court, Mr. Boutin asserts that the Board’s finding (and, by extension, the subsequent courts’ findings) that the single-lot protection of G.L. c. 40A, §6, was error. Instead, he argues, the Board should have applied the statute’s common-lot protection, which only lasts five years. Whatever the merits of this argument, it addresses an issue already litigated and the Appeals Court and Superior Court have already settled in Boutin I. Mr. Boutin challenged the application of G.L. c. 40A, §6, both in his Boutin I appeal to the Board and in court, and each time a final judgment entered relying on a determination that the property was entitled to single-lot protection. Accordingly, the Board and the courts concluded that the bylaw’s minimum square footage requirement does not apply to the property. Although it now takes a different form, Mr. Boutin’s argument on this issue is still the same as before: that G.L. c. 40A, §6, does not apply to the property and, it fails to meet the current bylaw’s minimum square footage requirement, it is unbuildable. Leaving no further questions for decision on this issue, the Board and courts conclusively determined that the property was entitled to single-lot protection as a preexisting use in Boutin I. Thus, this Court is precluded from relitigating the issue of the application of G.L. c. 40A, §6 to the property and the sufficiency of the property’s square footage under the bylaw.

Regarding the second issue, the Board determined that the building inspector properly relied on Mr. Diodato’s design engineer’s determination that the property satisfied § 205-39’s minimum upland requirement, as it contained ILSF of only about 10%. [Note 5] The Superior Court and the Appeals Court upheld that determination. Mr. Boutin argues that that calculation was factually wrong, and that the Board’s ruling affirming the zoning permit’s issuance was conditional upon revised calculations of the property’s upland area following the Conservation Commission’s analysis. But the Appeals Court in Boutin I has already upheld the prior calculation, and held that this apparent condition was a drafting error. Boutin I, Appeals Ct., Mem. & Order Pursuant to Rule 1:28 (Apr. 19, 2012). As the Appeals Court ruled, the Board meant that the issuance of a building permit was contingent on the Conservation Commission’s approval (which was subsequently obtained), but that the building inspector had already “unconditionally approved the zoning permit.” Id. Thus, the Appeals Court held that the zoning permit conclusively certified the property’s compliance with the bylaw, leaving nothing to be decided regarding upland area or any other aspect of bylaw compliance. This Court is therefore precluded from rehearing the issue whether the property contains sufficient upland area to comply with §205-39 of the bylaw. Conclusion For the reasons set forth above, Mr. Diodato’s motion to dismiss is ALLOWED. This Court is precluded from entering a judgment on the claim that Mr. Diodato’s property is not buildable under the Town’s zoning bylaws because a final judgment has already entered on the same claim. Further, this Court is precluded from rehearing the issues essential to that prior judgment, as they appear in Mr. Boutin’s renewed action, because the Superior Court and Appeals Court ruled conclusively on thoese issues in Mr. Boutin’s prior action.

Judgment shall enter accordingly.

SO ORDERED.