This action commenced in this court on January 26, 2012. It is an appeal pursuant to G.L. c. 40A, § 17 of a decision [Note 1] of the Rockland Zoning Board of Appeals. The complaint was amended on December 10, 2012. The municipal defendants filed a counterclaim for enforcement pursuant to G.L. c. 40A, § 7.
This case came on to be heard by the court (Piper, J.) March 19, 2013 on cross motions for summary judgment. On that date, the court laid upon the record from the bench certain rulings of law, and directed further briefing. After receiving supplemental filings of the parties, the court (Piper, J.) rendered its rulings in a written decision dated July 2, 2013, and judgment entered that day.
Plaintiff noticed an appeal of the judgment to the Appeals Court. In the appeal of this case in the Appeals Court, No. 2013-P-1749, the Appeals Court vacated that judgment, and remanded to this court for further proceedings consistent with the memorandum and order of the panel of the Appeals Court, dated February 4, 2015, issued by it pursuant to its Rule 1:28. Rescript issued from the Appeals Court and was docketed March 4, 2015. DelPrete v. Zoning Bd. of Appeals of Rockland, 87 Mass. App. Ct. 1104 (2015). The remand was "for the limited purpose of consideration of the factors which may inform an equitable remedy determination...." The Appeals Court upheld the remainder of this court's judgment.
This case came on for trial by the court on the issues for which the case was remanded to this court. In a decision of even date, the court (Piper, J.) has made findings of facts and rulings of law. In accordance with the courts decision issued this day, it is
ORDERED and ADJUDGED that the decision of the Rockland Zoning Board of Appeals filed with the Rockland Town Clerk on January 17, 2012 is not arbitrary, capricious, contrary to law or otherwise entitled to be modified or overturned. The decision of the Board is AFFIRMED, and shall stand as issued. It is further
ORDERED and ADJUDGED that the Board and the Building Inspector and Zoning Enforcement Officer for the Town of Rockland are to take all appropriate action in light of the courts decisions and this Judgment. The order of the Towns Zoning Enforcement Officer [Note 2] dated July 10, 2013 is of no force and effect. A new order of enforcement with respect to the Property involved in this case may be issued by the Zoning Enforcement Officer at such time, and with such lawful terms and provisions, as the Zoning Enforcement Officer may determine appropriate, provided however, that no such order shall require physical alteration or demolition of the structure on the Property, if at all, to take place at any time prior to this Judgment becoming final. Any order of enforcement shall be subject to administrative appeal to the Board in accordance with the provisions of G.L. c. 40A. Any decision of the Board rendered on an administrative appeal shall be subject to appeal by any proper party to a court in accordance with G.L. c. 40A, §17. Any such judicial appeal may be brought in any court of competent jurisdiction, provided, however, that if such a judicial appeal is sought by any party currently a party to this case, the appeal shall be brought in this court. It is further
ORDERED and ADJUDGED that, balancing the factors that may enter into such a calculus, there are not present in the facts of this case as tried to the court sufficient grounds to require a judge to impose an equitable alternative to a tear-down order, should a lawful, final, order for demolition be issued by the local officials and then be reviewed on judicial appeal, including following administrative appeal in the Town, if taken. The officials in the Town may, if they determine it to be a lawful and appropriate result, order a remedy or remedies for the zoning violations at the Property that include physical alteration or demolition of the structure there, but, notwithstanding the preceding sentence of this Judgment, the officials in the Town are in no manner ordered or obliged to do so. They, after necessary deliberation, may proceed with enforcement as the law, and the discretion they enjoy under it, lead them to act. It is further
ORDERED and ADJUDGED that no other or further relief, and no damages, costs, fees or other amounts, are awarded to any party.
By the Court.
[Note 1] The challenged decision was filed with the Town Clerk on January 17, 2012.
[Note 2] Terms used in this Judgment and not defined in it have the meanings given in the Decision.