DUANE P. LANDRETH, Trustee of the ANDREA KLINE TRURO QUALIFIED PERSONAL RESIDENCE TRUST v. ALAN FROMSON, JANICE ALLEE, BERTRAM PERKEL, JOHN THORNLEY, and NORMAN POPE as they are members of the TOWN OF TRURO ZONING BOARD OF APPEALS.

Procedural History and Background

This case returns to the Land Court by means of a somewhat circuitous route. Initially, the instant matter came before the Land Court as Schiffenhaus v. Kline, 18 LCR 223 (Misc. Case No. 383621) (Piper, J.). In that case, Lawrence Schiffenhaus, J. Anton Schiffenhaus, Alan Solomont and Susan Lewis Solomont (the original plaintiffs) had appealed, pursuant to G.L. c. 40A, s. 17, from a decision of the Truro Board of Appeals (Board). By means of that decision, the Board upheld [Note 1] the determination of the local Building Commissioner to issue two building permits to Donald Kline [Note 2] for work on the property known and numbered as 25-27 Stephens Way in Truro, Massachusetts (property / locus). Specifically, permit 08-096, issued on May 27, 2008, allowed for the conversion of a single family pre-existing nonconforming [Note 3] residential structure into an accessory use as an “Habitable Studio.” [Note 4] Permit 08-097, issued on the same date, allowed for the construction of a new, larger single family dwelling at the locus. [Note 5] “[T]he new home Mr. Kline proposed was a single-family structure, but in addition to the 4,800 square feet of living space on the ground floor, there were another 2,000 square feet of space in the finished area of the basement…. The house itself, now constructed, has four bedrooms and five bathrooms, and there is also a 400-square-foot garage.” [Note 6]

In granting the said Permits, the Building Commissioner “determined that the changes proposed for this property [fit] within Truro’s extremely broad definition for alteration, and that determination directed me to consider and then apply Section 30, s. 30.7.B [of the Truro Zoning Bylaw] …. [W]hen I considered s. 30.7.B I saw that the new home would not ‘increase the nature or extent’ of the nonconforming Street or Lot Frontage… [T]herefore, I approved the applications and issued the building permits on May 27, 2008….” [Note 7]

The definition of “Alteration” is to be found in Section 10.4 of the Zoning Bylaw. It provides as follows:

Alteration. Any construction, reconstruction, or related action resulting in a change in the structural parts, heights, number of stories, exits, size, use or location of a building or other structure or any other related change.

Section 30.7.B, in turn, upon which the Building Commissioner relied, provides as follows:

B. Repairs, alterations. If the Building Commissioner determines and finds that the proposed repair, reconstruction, alteration, or structural change of a pre-existing, non-conforming single-family… residential structure will not increase the nature or extent of the nonconformity, then the Building commissioner may improve and issue a building permit for the proposed repair, reconstruction, alteration, or structural change.

The Schiffenhaus Case was decided by the Land Court on summary judgment. [Note 8] In his decision, the Judge observed that “[n]otwithstanding the commencement of this action, [Note 9] Kline broke ground and commenced his construction project.” He observed further “that the Building Commissioner did not abuse his discretion in determining that the Kline project fits the Truro definition of an ‘alteration.’ ” He continued as follows:

[T]he Building Commissioner was incorrect when he determined that the Kline Project [would] not produce an increase in the nonconforming nature of the existing structures on the Kline property, and the Board acted in error when it upheld his determination. Judgment will enter annulling the Decision of the Board, and remanding the case to the Board to consider pursuant to… the Truro Zoning Bylaw whether the Kline Project is an ‘alteration or extension [that] will not be substantially more detrimental to the neighborhood than the existing nonconforming use or structure and that the alteration or extension will exist in harmony with the general purpose and intent of the bylaw’.…”

The Court allowed plaintiffs’ Motion for Summary Judgment. In so doing, it annulled the August 19, 2008 Decision of the Truro Zoning Board which had upheld the issuance of the two building permits to the Klines and remanded the case to the Board for the following purposes:

(1) for the Board to direct the Building Inspector that the building permits challenged in this action were issued by him in error, and that he must take appropriate action in light of that direction, and pending the further action of the Board required by this Judgment, and

(2) for the Board to consider, consistent with the court’s decision, pursuant to Section 30.7 of the Truro Zoning Bylaw, whether the Kline Project is an “alteration or extension [that] will not be substantially more detrimental to the neighborhood than the existing nonconforming use or structure” and whether “the alteration or extension will exist in harmony with the general purpose and intent of [the] bylaw.” The Board is with reasonable promptness to hold a new open public hearing for the purpose of considering this question . . . . [Note 10]

Thereafter, the parties filed cross appeals from the decision of the Land Court. In Schiffenhaus v. Kline, 79 Mass. App. Ct. 600 (2011) issued on May 26, 2011, the Appeals Court affirmed the Land Court’s remand to the Board. It agreed with the Land Court Judge in certain respects pertinent here—first, that the original plaintiffs had standing to seek judicial review [Note 11] and second, that the proposed changes to the Kline property significantly increased the property's nonconformity. In this respect, the Court spoke of the “magnitude of the project and multiplicity of proposed changes to the property” which “undeniably signified an expansion of the property’s nonconformity.” Schiffenhaus v. Kline, 79 Mass. App. Ct. 600 , 602-03, 605-06 (2011).

The Court concluded as follows:

The judge’s remand to the board is affirmed for further proceedings consistent with this opinion, and specifically subject to our determination that the project does not constitute an alteration. (emphasis added) Id. at 606.

Mr. Landreth filed a petition for rehearing thereafter. Moreover, after the promulgation of the Appeals Court’s decision, the private parties filed a motion to vacate on the basis that they had reached a settlement. The Town of Truro (Truro), however, objected to the motion to vacate, apparently altering its position from one of support for the property owners to one of opposition. The Appeals Court denied both the request for rehearing and the motion to vacate. The Supreme Judicial Court denied further appellate review on November 2, 2011, rendering the Appeals Court's decision final.

On remand, the Zoning Board issued a decision directing the Building Inspector to revoke the building permits. Duane Landreth, Trustee of the Andrea Kline Truro Qualified Personal Residence Trust, which holds the interests in the locus previously held by the Klines, has appealed from the Board’s decision. Thus, this court finds itself again considering the legality of the residence that the Klines constructed at 25-27 Stephens Way in Truro, Massachusetts. Both parties have moved for summary judgment.

Following the Appeals Court decision, on June 17, 2011, Duane P. Landreth filed a Petition for Rehearing. Soon after the Appeals Court rendered its decision, the private parties settled their dispute. On July 6, 2011, the plaintiffs, i.e. the Schiffenhauses and Solomonts, filed a motion to vacate the remand order or alternatively, to remand the case to the Land Court for entry of dismissal. On the same date, the parties filed and a stipulation regarding standing in which the plaintiffs disclaimed any aggrievement or harm as a consequence of the Kline Project. [Note 12] Duane P. Landreth also sought further appellate review. The Appeals Court acknowledged receipt of the motions and the stipulation. Thereafter, a docket entry was made that read in pertinent part as follows:

This case has been remanded. Papers should be filed in the proceedings below. To the extent that the motions require rulings, they are denied.

Mr. Landreth’s application for further appellate review was denied by the Supreme Judicial Court. [Note 13] Prior to the remand hearing, counsel for the original plaintiffs forwarded a letter to the Truro Zoning Board informing the Board of the settlement by the private parties and seeking the withdrawal of the original plaintiffs’ request for zoning enforcement. [Note 14] The letter included the stipulation that the parties had previously submitted to the Appeals Court.

On December 19, 2011, the Board held a duly noticed remand hearing for the 25-27 Stephens Way property. The Board’s decision read, in relevant part as follows:

[T]he Board voted that in accordance with the Massachusetts Appeals Court decision dated May 26, 2011, the Building Permits for the project at 25-27 Stephens Way (Atlas Sheet 53, Parcel 73) were issued in error. In accordance with the Judgment of the Land Court dated April 12, 2010, the Board directs the Building Inspector that the building permits challenged in this action should be revoked and that he shall take such other appropriate action that he deems necessary. [Note 15]

It is from this decision that the current plaintiff, Duane P. Landreth as trustee of the Andrea Kline Truro Qualified Personal Residence Trust, has appealed.

Summary Judgment Standard

Summary judgment is appropriate when “pleadings, depositions, answers to interrogatories, and responses to requests for admission . . . together with affidavits . . . show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Mass. R. Civ. P. 56(c). The moving party bears the burden of proving the absence of controversy over material facts and that he or she deserves a judgment as a matter of law. See Highlands Ins. Co. v. Aerovox Inc., 424 Mass. 226 , 232 (1997). Accordingly, when acting upon motions for summary judgment, this court is to determine “whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to judgment as a matter of law.” Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991).

“The burden on the moving party may be discharged by showing that there is an absence of evidence to support the non-moving party’s case.” Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 711 (1991), citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Thus, “regardless of whether the moving party accompanies its summary judgment motion with affidavits, the motion may, and should, be granted so long as whatever is before the . . . court demonstrates that the standard for the entry of summary judgment . . . is satisfied.” Kourouvacilis v. General Motors Corp., 410 Mass. at 713, quoting Celotex Corp. v. Catrett, 477 U.S. at 323-24. In cases where the “nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the pleadings, depositions, answers to interrogatories, and admissions on file.” Id.

A corollary to the moving party’s burden is that the court is to “make all logically permissible inferences” from the facts in the non-moving party’s favor. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). That said, “the right of a party facing summary decision to have the facts viewed in a favorable light . . . does not entitle that party to a favorable decision” and reliance upon mere “bald conclusions” is an inadequate means of defeating the motion. Catlin v. Bd. of Registration of Architects, 414 Mass. 1 , 7 (1992).

Mass R. Civ. P. 56(c) permits the disposition of controversies if in essence there is no real dispute as to the salient facts, such that resolution of the matter depends solely upon judicial determination of a question of law. For summary judgment to enter, the undisputed facts have to be sufficient to furnish the judge with evidence upon which the key question of law might be resolved. As I find that there are no genuine issues of material fact, this matter is ripe for summary judgment.

Discussion

In reviewing a decision of a zoning board the court utilizes the now familiar standard to determine whether the decision was “unreasonable, whimsical, capricious or arbitrary” or “legally untenable.” See Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478 , 487 (1999). “Review of a board's decision . . . pursuant to G. L. c. 40A, § 17, involves a “peculiar” combination of de novo and deferential analyses.” Wendy's Old Fashioned Hamburgers of New York, Inc. v. Bd. of Appeal of Billerica, 454 Mass. 374 , 381 (2009), citing Pendergast v. Bd. of Appeals of Barnstable, 331 Mass. 555 , 558 (1954).

This court is satisfied that, given the unique facts of this matter, that the Board’s decision is not legally untenable, unreasonable, whimsical, capricious, or arbitrary.

In its Memorandum in Support of Plaintiff’s Motion for Summary Judgment (Plaintiff’s Memorandum), the plaintiff articulates in his Statement of Issue Presented, [Note 16] the singular issue currently before the court:

Whether the Town of Truro Zoning Board of Appeals . . . lacked jurisdiction to hold a remand hearing on December 19, 2011 and to subsequently issue a zoning decision where there was no applicant for zoning enforcement or relief before the Board and the parties who had previously sought enforcement had filed a stipulation with the Appeals Court and with the Board prior to the hearing that they were no longer aggrieved. [Note 17]

And again

The sole issue here is whether the board had jurisdiction to hold a remand hearing and issue its decision of January 4, 2012. Accordingly, this is an appropriate case for summary judgment. [Note 18]

Essentially, the plaintiff argues that the Board could not render a decision—and indeed should not have held a hearing at all on remand, because at the time of the hearing, the Schiffenhaus plaintiffs had settled their differences with the Klines and so lacked the requisite standing.

Pursuant to G.L. c. 40A, s. 17, “[a]ny person aggrieved by a decision of the board of appeals . . . may appeal to the land court department . . . .” In that event, “[t]he court shall hear all evidence pertinent to the authority of the board or special permit granting authority and determine the facts, and, upon the facts as so determined, annul such decision if found to exceed the authority of such board or special permit granting authority or make such other decree as justice and equity may require.” Id. Standing is a prerequisite if one is to maintain a case in this, or any, court.

It is beyond dispute, that at the time the respective decisions were rendered by the Land Court and by the Appeals Court, each possessed the requisite subject matter jurisdiction. “A court is not ousted of jurisdiction by subsequent events -- jurisdiction once attached is not impaired by what happens later.” See O’Dea v. J.A.L. Inc., 30 Mass. App. Ct. 449 , 453-54 (1991). “It is quite clear, that the jurisdiction of the Court depends upon the state of things at the time of the action brought, and that after vesting, it cannot be ousted by subsequent events.” See Dunn v. Clarke, 33 U.S. (8 Pet.) 1, 3 (1834); Lugo-Vina v. Pueblo Intl., Inc., 574 F.2d 41, 42 n.1 (1st Cir. 1978). Although not precisely on point, this court believes that the said principle applies with equal force to the case at bar. The Appeals Court’s final decision was and remains valid and binding, regardless of any settlement that may have been reached by the parties after the decision was handed down.

It is clear, moreover, given the unique circumstances that pertain herein, that the plaintiff possesses standing sufficient to vest this court with the requisite subject matter jurisdiction.

Furthermore, “[p]ublic policy dictates that there be an end of litigation; that those who have contested an issue shall be bound by the result of the contest, and that matters once tried shall be considered forever settled as between the parties.” Wright Mach. Corp. v. Seaman-Andwall Corp., 364 Mass. 683 , 688 (1974), quoting Baldwin v. Iowa State Traveling Men's Ass'n, 283 U.S. 522, 525 (1931). Such is the case here. Notwithstanding the remand order, the Appeals Court decision effectively brought an end to the litigation in critical respects. [Note 19] The parties may not effectively void the decision of the Appeals Court by resolving their differences after the decision of that Court, especially so, when further appellate review had been denied.

The defendant Board argues that the issue before the court is as follows: “Can the property owner [the plaintiff] continue to violate the Town of Truro Zoning Bylaw by simply appeasing his neighbors?” This court is satisfied that, in this situation, the answer is in the negative. Following the decision of the Appeals Court, the Board's earlier decision was effectively nullified. Although the Board initially deemed the new house to be an alteration, the Appeals Court remanded the case to the Board “specifically subject to [the] determination that the project does not constitute an alteration.” Schiffenhaus v. Kline, 79 Mass. App. Ct. 600 , 606 (2011) (emphasis added). Thus, the Board had incorrectly interpreted the bylaw.

Following the decision of the Appeals Court, the Board had no basis to conclude that the newly constructed dwelling could, under any circumstances, constitute a legal alteration. Thus, when the Board took up the case on remand as directed by the Appeals Court, the bases on which the Building Commissioner had originally issued the building permits—first, that the construction of a new home qualified an alteration, and second, that such alteration did not increase the nature or extent of the nonconformity—had since been invalidated.

In the earlier trial court decision, it was found that while the Kline house constituted an alteration under the bylaw definition, it also increased the existing nonconformity. For its part, the Appeals Court concluded that the new Kline dwelling was not an alteration at all. Notably, the original remand order from the Land Court directing the Board to make appropriate findings, was predicated upon the notion that the construction of the Kline house was an alteration. Absent the underlying finding that the new house qualified as an alteration under the bylaw, it constituted a noncompliant structure lacking adequate frontage on Stephen’s Way.

Consequently, the Board, in light of the specific order of the Appeals Court that the new dwelling was not an alteration, and the conclusion by the Land Court Judge that the building permits had been issued “in error”, directed that the building permits be revoked. “On remand, a board may not ignore or disagree with the specific findings of a reviewing court after a judge has fulfilled her statutory duty to ‘determine the facts.” Wendy’s Old Fashioned Hamburgers of New York, Inc. v. Board of Appeal of Billerica et al., 454 Mass. 374 , 389 (2009).

This court is satisfied that the action open to the Board on remand was of a highly circumscribed nature. It might reasonably be argued, in this regard, that the actions of the Board were tantamount to the “routine, nondiscretionary character that characterizes a ministerial function.” See generally Morris v. Commonwealth, 412 Mass. 861 , 865 (1992) (ministerial functions are those “which involve[] no exercise of discretion or judgment”); cf. In re Northwood Properties, LLC, 509 F.3d 15 fn. 2 (1st Cir. 2007).

The plaintiff argues that the Board should simply have refrained from any action on remand or should not have conducted a hearing at all. Such argument runs contrary to the clear language of the Appeals Court decision remanding to the board “for further proceedings consistent with this opinion, and specifically subject to our determination that the project does not constitute an alteration.”

It is the view of this court that the Board had no discretion to consider the standing of the original Schiffenhaus plaintiffs on remand. The Board likewise lacked discretion to refuse to act at all, as has been argued by the plaintiff. This court believes that when undertaking, at the direction of the Appeals Court, such further proceedings, the Board was constrained to act and to act only as directed. The Board acted here in compliance and within and contemplation of the Appeals Court decision and Order. Therefore, this court sees no basis upon which to deem the Board’s decision legally untenable, unreasonable, whimsical, capricious, or arbitrary.

Conclusion

In light of the unique circumstances pertaining herein, this court concludes that the Board was without discretion to consider the standing of the plaintiffs in the original Schiffenhaus litigation in rendering its remand decision. Therefore, summary judgment in the defendant’s favor, is appropriate.

Accordingly, it is hereby

ORDERED that the Defendant’s Motion for Summary Judgment is hereby ALLOWED.

It is further

ORDERED that the Plaintiff’s Motion for Summary Judgment is hereby DENIED.

It is further

ORDERED that the decision of the Truro Zoning Board of Appeals is hereby AFFIRMED.

Judgment to issue accordingly.