J. Stephen Bjorklund (Bjorklund), as trustee of Atlantis Nature Study Realty Trust (Atlantis Trust), appeals the decision of the Town of Scituate Zoning Board of Appeals (ZBA) denying zoning relief under G.L. c. 40A, §6, for the reconstruction of a purported lawful nonconforming single family dwelling. This is Bjorklunds fourth bite at this apple, and his arguments that this time it is different do not bear new fruit. Bjorklunds claims are barred by the doctrines of claim and issue preclusion. His motion for summary judgment is denied, the ZBAs cross-motion for summary judgment is allowed, and judgment will enter dismissing this action with prejudice.
Bjorklund, as trustee of Atlantis Trust, filed his complaint (Complaint) on December 23, 2013, naming as defendants Sara J. Trezise, Edward C. Tibbets, John Hallin, Francis M. Lynch, and Anthony J. Bucchere as they constitute the ZBA. The complaint is an appeal from the ZBA's December 4, 2013 decision denying Bjorklunds request for zoning relief to allow for the reconstruction of a non-conforming single family dwelling. The case management conference was held on February 4, 2014. On August 11, 2015, the ZBA filed its Motion in Limine or Motion to Exclude Evidence/Argument Regarding Prior Zoning Board Decisions, which the Court heard on September 9, 2015, and allowed in part. On October 1, 2015, Bjorklund filed Plaintiffs Motion for Summary Judgment, Plaintiffs Summary Memorandum in Support of Motion for Summary Judgment, Statement of Material Facts and Legal Elements (Pl. Facts), and Affidavit of J. Stephen Bjorklund (Bjorklund Aff.). On November 2, 2015, the ZBA filed Defendants Opposition to Plaintiffs Motion for Summary Judgment and Defendants Cross- Motion for Summary Judgment, Memorandum of Law in Support of Defendants Opposition to Plaintiffs Motion for Summary Judgment and in Support of Defendants Cross-Motion for Summary Judgment, Defendants Response to Plaintiffs Statement of Material Facts and Statement of Additional Material Facts not in Dispute (Def. Response & Facts), and Defendants Appendix of Exhibits (Def. App.). Bjorklund filed the Plaintiff's Reply Memorandum on November 19, 2016. The Plaintiffs Motion for Summary Judgment and Defendants Cross- Motion for Summary Judgment were heard on November 23, 2015, and taken under advisement. This Memorandum and Order follows.
Summary Judgment Standard
Summary judgment may be entered if the pleadings, depositions, answers to interrogatories, and responses to requests for admission . . . together with the affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56(c). In viewing the factual record presented as part of the motion, the court is to draw all logically permissible inferences from the facts in favor of the non-moving party. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). Summary judgment is appropriate when, 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 a judgment as a matter of law. Regis Coll. v. Town of Weston, 462 Mass. 280 , 284 (2012), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991). Where the non- moving party bears the burden of proof, 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); see Regis Coll., 462 Mass. at 291-292.
The following facts appear undisputed.
1. Bjorklund, as trustee of Atlantis Trust, owns the property at 141 Turner Road, Scituate, Massachusetts, by a deed dated October 3, 1996, and recorded in the Plymouth County Registry of Deeds at Book 14731, Page 16 (the Property). Pl. Facts ¶¶ 1, 3; Def. Response & Facts ¶¶ 1, 3; Bjorklund Aff. ¶¶ 3, 5.
2. The Property consists of a 3,428 square-foot parcel with 37.6 feet of frontage on Turner Road. Pl. Facts ¶ 19; Def. Response & Facts ¶ 19; Bjorklund Aff. ¶ 21.
3. The Property is located in the R3 zoning district under the Town of Scituate Zoning By-Laws (bylaw). For this district, § 610.1 of the bylaw requires a minimum of 10,000 square feet of land and 100 feet of frontage for construction of a dwelling. Pl. Facts ¶¶ 18, 20; Def. Response & Facts ¶¶ 18, 20; Bjorklund Aff. ¶¶ 20, 22.
4. Bjorklund acquired the Property in his individual capacity from Edward Locke (Locke) in 1991. Pl. Facts ¶ 10; Def. Response & Facts ¶ 10; Bjorklund Aff. ¶ 12.
5. A home (Original Home) was built on the Property in 1890, prior to the adoption of zoning by-laws in the Town of Scituate, and was owned in 1978 by Locke. Pl. Facts ¶ 4; Def. Response & Facts ¶ 4; Complaint Exhibit (Exh.) B.
6. The Original Home was knocked from its foundation during the Blizzard of 1978, and Scituates then Building Inspector ordered Locke to secure the building. Pl. Facts ¶ 5; Def. Response & Facts ¶ 5; Bjorklund Aff. ¶ 7.
7. Locke did not maintain or repair the Original Home due to his financial condition. In 1980, he voluntarily agreed to tear down the Original Home to settle a court action regarding the adequacy of building security. Pl. Facts ¶¶ 6, 7; Def. Response & Facts ¶¶ 6, 7; Bjorklund Aff. ¶¶ 8, 9.
8. Locke continued to pay real estate taxes and received a sewer connection permit from the Towns Department of Public Works in 1985, but the Property has remained vacant since 1980. Pl. Facts ¶¶ 8, 9; Def. Response & Facts ¶¶ 8, 9; Bjorklund Aff. ¶¶ 10, 11.
9. In or about 1992, Bjorklund applied for a building permit to build a single-family dwelling on the Property. This application was denied by the Building Inspector and the denial was affirmed by the ZBA on appeal. Pl. Facts ¶ 11; Def. Response & Facts ¶¶ 11, 46.
10. In 1992, Bjorklund brought an action in Superior Court challenging the ZBAs decision, J. Stephen Bjorkland [sic] v. Scituate Zoning Board of Appeals, Superior Court C.A. 92-1393B (the Superior Court Action). In its June 1, 1993, Findings, Ruling, and Order, the Superior Court affirmed the decision of the ZBA, upholding the Building Inspectors denial of Bjorklunds application (Superior Court Decision). Def. Response & Facts ¶¶ 46-47; Def. App., Exh. B.
11. In or about 1994, Bjorklund again applied for a building permit to build a single- family dwelling on the Property, which was denied by the Building Inspector. The ZBA affirmed the denial on appeal. Pl. Facts ¶ 12; Def. Response & Facts ¶¶ 12, 48-49; Def. App. Exh. C.
12. In 1995, Bjorklund appealed the 1994 ZBA decision to the Land Court, J. Stephen Bjorklund v. William M. Leonard, et al., Misc. Case No. 215728 (the 1995 Land Court Action). In its July 21, 1995 Decision, 3 LCR 141 (1995), the Land Court found that the complaint filed by Bjorklund was virtually identical to the one in the Superior Court Acton and was barred under the doctrine of res judicata (1995 Land Court Decision). Def. Response & Facts ¶¶ 50-51; Def. App., Exh. C.
13. In or about 1996, Bjorklund applied for a special permit to construct a building on the Property to be used as a nature study, which the ZBA denied. Pl. Facts ¶ 13; Def. Response & Facts ¶¶ 13, 53; Def. App., Exh. D.
14. Bjorklund appealed the ZBAs 1996 decision to the Land Court, J. Stephen Bjorklund v. Zoning Board of Appeals of Scituate, Misc. Case No. 237881 (the 1996 Land Court Action). In a June 16, 1998 Decision, 6 LCR 181 (1998), the Land Court affirmed the ZBAs denial because of the nature study structure's failure to comply with building code requirements for a place of public assembly and lack of clearly articulated plans for its use as a nature study facility (1998 Land Court Decision). Def. Response & Facts ¶¶ 55-56; Def. App., Exh. D.
15. On or about April 17, 2013, Bjorklund applied to the ZBA for a finding pursuant to G.L. c. 40A § 6 and/or any other relief the Board found necessary to allow for reconstruction of a pre-existing nonconforming single family dwelling on the Property. Pl. Facts ¶ 14; Def. Response & Facts ¶ 14; Complaint Exh. A.
16. At the public hearing held on November 21, 2013, the three voting members of the ZBA voted 2-1 against the April 17, 2013 application. The two alternative members voted one to deny and one in favor of the application. The ZBA filed its decision with the Town Clerk on December 4, 2013 (Decision). Pl. Facts ¶ 16; Def. Response & Facts ¶ 16; Complaint Exh. B.
17. The ZBA Decision bases its denial on § 7 of the bylaw, in effect from 1978-1980, which states, in part:
A. Buildings and Uses Already in Existence
Any lawful building or structure, or any lawful use of land, building or structure, existing at the effective date of this By-law or any amendment thereto, subject to the limitations established at Section 6, Chapter 40A, G.L., as amended, . . . may be continued, although not in conformity with the provision thereof, unless or until abandoned or not used for a period of two (2) years o[r] more.
C. Repair and Restoration of Non-Conformity Use
A non-conforming building, structure or use damaged or destroyed by accidental causes may be repaired, reconstructed or restored within the same portion of the lot and used as before, provided that such repair, reconstruction or restoration is completed within two (2) years of said damage or destruction.
Pl. Facts ¶ 21; Def. Response & Facts ¶ 21; Complaint Exh. B.
18. The Decision states that:
It is undisputed that the owner of the property did not repair, reconstruct or restore the structure within 2 years of the damage or destruction as required by the Zoning By-Laws in effect at the time of said damage and/or destruction. Because of this, the Board felt that in accord with the prior Land Court and/or Superior Court decisions regarding this property, the applicant could not establish he was entitled to the protection of the Scituate Zoning By-Laws regarding construction (or reconstruction) of a new single family home on the non-conforming lot located at 141 Turner Road. The Board further felt that the applicant had also failed to establish he was entitled to his permit under any revised Scituate Zoning By-Law, under any applicable Massachusetts General Law, or any applicable decision of the State Supreme Court or the Appeals Court including but not limited to Gale v. Zoning Board of Appeals of Gloucester, 80 Mass. App. Ct. 331 (2011).
Pl. Facts ¶ 22; Def. Response & Facts ¶ 22.
19. The ZBA allowed the owner of the property at 19 Beaver Dam Road, Scituate, to reconstruct a structure almost 25 years after it was damaged in a gas explosion in 1982. The property owner timely obtained a permit to reconstruct after the explosion and sought extensions. Pl. Facts ¶ 24; Def. Response & Facts ¶ 24; Bjorklund Aff., Exh. 1; Def. App., Exh. A, Affidavit of Neil Duggan (Duggan Aff.) ¶ 4.
20. The ZBA allowed the owner of the property at 47 Ocean Drive, Scituate, to reconstruct and expand an existing structure almost 10 years after it was damaged and unoccupied. The structure was still in existence at the time of application. Pl. Facts ¶ 26; Def. Response & Facts ¶ 26; Bjorklund Aff., Exh. 3; Def. App., Exh. A, Duggan Aff. ¶ 6.
21. The ZBA allowed the owners of the property at 167 Jericho Road, Scituate, to rebuild and seek further special permits to expand the size of the dwelling. The owners applied for a permit to reconstruct soon after it was damaged in 1987, and made several attempts to rebuild from 1988 to 2012. Pl. Facts ¶ 28; Def. Response & Facts ¶ 28; Bjorklund Aff., Exh. 5; Def. App., Exh. A, Duggan Aff. ¶ 8.
I. Bjorklund's Complaint is barred by the doctrine of res judicata because of his multiple, prior actions litigating the same claim and issues.
The doctrine of res judicata prevents relitigation of claims or issues that were or could have been raised in prior litigation. Bagley v. Moxley, 407 Mass. 633 , 636 (1990). The doctrine serves to relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance on adjudication. Id., quoting Anderson v. Phoenix Inv. Counsel of Boston, Inc., 387 Mass. 444 , 449 (1982). Res judicata includes both claim preclusion, which prohibits the same parties or their privies from relitigating the same claim that was the subject of an earlier action between the same parties, and issue preclusion, which prohibits the same parties or privies from relitigating an issue that was already litigated in an earlier action based on a different claim. Blanchette v. School Comm. of Westwood, 427 Mass. 176 , 179 n.3 (1998); Bagley, 407 Mass. at 636-637; Heacock v. Heacock, 402 Mass. 21 , 23 (1988). The Complaint is barred by both claim and issue preclusion.
A. Claim Preclusion.
Three elements are essential for invocation of claim preclusion: (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. DaLuz v. Department of Correction, 434 Mass. 40 , 45 (2001); Franklin v. North Weymouth Coop. Bank, 283 Mass. 275 , 280 (1933). Here, the first element is met because the defendant in the current action is identical to the defendant in prior actions, namely the ZBA, and the plaintiffs in this action and all prior actions are in privity, if not identical. Bjorklund as trustee of the Atlantis Trust, the plaintiff here, was the plaintiff in the 1996 Land Court Action. While Bjorklund, individually, was the plaintiff in the Superior Court Action and the 1995 Land Court Action, he stands in privity with himself as trustee of the Atlantis Trust. Privity applies where the current party's interest was represented by a party in the prior litigation. Mongeau v. Boutelle, 10 Mass. App. Ct. 246 , 249-250 (1980); Epps v. Bank of Am., N.A., 2013 Mass. Super. LEXIS 209 (2013). In this action, the Superior Court Action, and the 1995 Land Court Action, Bjorklund's interest, whether as a trustee of the trust or as an individual, was to build a single-family dwelling on a non-conforming lot, and that interest was adequately represented in those prior cases.
As to the second element, a claim is considered to be the same for res judicata purposes if it is derived from the same transaction or series of connected transactions. St. Louis v. Baystate Medical Center, Inc., 30 Mass. App. Ct. 393 , 399 (1991). What constitutes a transaction or series of connected transactions should be determined pragmatically, considering whether the facts in each are related in origin or motivation and form a convenient trial unit, for the policy reason that parties and the judiciary should be spared repetitive actions based on the same wrong. Id.; Restatement (Second) of Judgments § 24(2) (1980). Here, all prior actions and the current action arise out of the same series of transactions: the removal of the Original Home, the vacancy on the Property since 1980, and the failure to timely apply for a permit to reconstruct. There is no change in the relevant facts between the previous actions and this action, such as the lot dimensions, when the dwelling was razed, or when the owners first applied for a building permit. The facts in all the cases are related in origin and motivation, to seek judicial overturning of the ZBA's denial of a permit under G.L. c. 40A, § 6. While the ZBA has issued a new Decision, that Decision is based on the same facts as its previous decisions and is essentially the same.
There is also no actual change in the bylaw provisions themselves, nor in c. 40A or the relevant decisional law that would produce a different result than the prior actions and warrant relitigation. Zelinsky v. Pontbriand, 15 LCR 183 , 185 (2007) (Piper, J.) (finding res judicata barred an appeal of a new ZBA denial of plaintiff's permit because there was no material change in the facts and the law). The claim in this appeal of the Decision is the same as the claims in the previous actions, and there has been no change in facts or law that would cause the ZBA to reach a different outcome. The claims are the same for purposes of res judicata.
The third element is met here because there have been three prior final judgments on the merits. A dismissal with prejudice constitutes an adjudication on the merits as fully and completely as if the order had been entered after trial constitutes a final judgment for the purposes of res judicata. See Bagley, 407 Mass. at 637; Boyd v. Jamaica Plain Co-op Bank, 7 Mass. App. Ct. 153 , 157 n.8 (1979). The Superior Court Decision and the 1998 Land Court Decision were both judgments on the merits. The 1995 Land Court Decision dismissed the 1995 Land Court Action based on the doctrine of res judicata, but stated that even absent res judicata, Plaintiff would not be entitled to the relief requested, as Plaintiff's nonconforming use was extinguished by non-use. Bjorklund v. Leonard, 3 LCR 141 , 143 (1995). All three prongs of claim preclusion are met. This action constitutes the fourth in a series of repetitive claims based on the same alleged wrong, and is precluded by the outcomes in the three previous actions.
B. Issue Preclusion.
The Complaint is also barred by issue preclusion. To preclude 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. Tuper v. North Adams Ambulance Ser., Inc., 428 Mass. 132 , 134 (1998). Additionally, the issue decided in the prior judgment must have been essential to the earlier judgment. Id. at 134-135. As discussed above, the Superior Court Decision, the 1995 Land Court Decision, and the 1998 Land Court Decision were final judgments on the merits in the Superior Court Action, the 1995 Land Court Action, and the 1996 Land Court Action, respectively, and the parties in those actions and this current actions are in privity, if not identical. The first issue in the case at bar, whether the ZBA arbitrarily and capriciously denied Bjorklund the ability to build a non-conforming structure under C.L. c. 40A, § 6, was adjudicated in and essential to the Superior Court Decision and therefore may not be re-litigated. The second issue, whether Bjorklund is entitled to relief based on the decision in Gale v. Zoning Bd. of Appeals of Gloucester, 80 Mass. App. Ct. 331 (2011), is irrelevant because, as discussed below, Gale does not apply to a case where a non-conforming structure has been abandoned.
II. Neither the Appeals Court's decision in Gale v. Zoning Bd. of Appeals of Gloucester nor the question of disparate treatment constitutes a new issue of law or fact that could not have been raised in previous actions.
Bjorklund argues this action is not precluded because there is new applicable law developed by Gale v. Zoning Bd. Of Appeals of Gloucester, supra, and new factual developments based on ZBA-granted permits for similarly situated properties that purportedly show disparate treatment of the Property. Neither of these arguments holds. The Gale decision is inapplicable to this case, and the few properties presented by Bjorklund that he could not have presented in the previous actions do not establish that the ZBA treated the Property differently.
A. The Appeals Court's decision in Gale does not apply to the case at hand and would not result in a different outcome that warrants re-litigation.
The Plaintiff argues that the Appeals Court's decision in Gale v. Zoning Bd. of Appeals of Gloucester, supra, prevents the ZBA from applying provisions of the bylaw in addition to the framework of G.L. c. 40A, § 6, ¶ 1, and that the ZBA's Decision denying zoning relief was therefore improper. The court in Gale held that if a board finds, pursuant to G.L. c. 40A, § 6, ¶ 1, that a proposed alteration to an existing nonconforming residential structure is not substantially more detrimental to the neighborhood than the existing nonconforming structure, then a special permit will be granted and a variance is unnecessary. Gale, 80 Mass. App. Ct. at 337-338; see G.L. c. 40A, § 6, ¶ 1. The court stated that the framework provides that under the second except clause of the first paragraph of the statute, as concerns single or two-family residential structures, the permit granting authority must first identify the particular respect or respects in which the existing structure does not conform to the present by-law and then determine whether the proposed alteration or addition would intensify the existing nonconformities or result in additional ones. Gale, 80 Mass. App. Ct. at 337-338, quoting Bransford v. Zoning Bd. Of Appeals of Edgartown, 444 Mass. 852 , 858 (2005). If a proposed alteration or addition does not intensify the existing nonconformities, then the board shall issue a special permit; if it does, then the board shall determine if there is substantial detriment, and, if it finds none, issue the special permit without requiring a further variance. See id. at 337.
Gale does not apply, however, to a case where the non-conforming structure was abandoned or extinguished by non-use. General Laws c. 40A, § 6, only applies to structures or uses lawfully in existence or lawfully begun. Id. (emphasis added). Although c. 40A, § 6, . . . to some degree protect[s] nonconformities, [it] provide[s] that nonconformities may be deemed abandoned in certain situations. Dial Away Co. v. Zoning Bd. of Appeals of Auburn, 41 Mass. App. Ct. 165 , 171 (1996). Thus, before a board can determine whether a proposed expansion of a nonconforming structure intensifies existing nonconformities and/or is not substantially more detrimental, it must first determine the threshold issue of whether there is an existing nonconforming structure in the first place. This question is governed, in part, by G.L. c. 40A, § 6, ¶ 3, which states that a zoning ordinance or by-law may define and regulate nonconforming uses and structures abandoned or not used for a period of two years or more. G.L. c. 40A, § 6, ¶ 3; see Bartlett v. Board of Appeals of Lakeville, 23 Mass. App. Ct. 664 , 668-669 (1987). Here, the Town of Scituate has adopted a bylaw regulating nonconforming uses and structures that equates non-use for a period of two years or more with abandonment. Bylaw § 7.A. The bylaw also restricts restoration of a non-conforming structure to restoration completed within two (2) years of said damage or destruction. Id. at § 7.C. Thus, under § 6, ¶ 3, the Town's bylaw governs whether there is abandonment or extinguishing of a nonconformity.
There has been no nonconforming residential structure on the Property since 1980, and no attempts to restore the nonconforming structure were made until 1991, which is much longer than the two-year period of non-use deemed to constitute abandonment under the bylaw. Because there is no existing nonconforming structure on the Property, the Appeals Court's decision in Gale that a variance is unnecessary for an expansion of an existing nonconforming structure if it causes no substantial detriment is irrelevant. There is no nonconforming structure to be expanded. Any construction on the Property is subject to the requirements of the bylaw, and if it cannot comply then a variance is necessary. Put in different terms, variances are only waived for extensions or additions of existing nonconformities under Gale, and variances are still required for the creation of any new nonconformity. Deadrick v. Zoning Bd. of Appeals of Chatham, 85 Mass. App. Ct. 539 , 553 (2014). Here, Bjorklunds proposed structure would be a new nonconformity, and therefore, Gale does not apply.
B. Either the claim of disparate treatment by the ZBA could have been brought in prior actions, or the properties referred to by Bjorklund are distinguishable from this case and cannot support a finding that the ZBA acted arbitrarily or capriciously.
Bjorklund claims that the ZBA has not been consistent in its application of the bylaw and has treated the Property differently than similarly situated properties. The majority of examples cited by the Plaintiff that allegedly evidence disparate treatment by the ZBA occurred well before Bjorklund filed his first legal action. Bjorklund could have brought the disparate treatment claim in the previous actions and therefore is barred from bringing this claim with respect to those properties now. Bagley, 407 Mass. at 638; Franklin v. North Weymouth Coop. Bank, 283 Mass. at 280.
With respect to the remaining properties, they do not constitute a factual change that would support consideration of this action. First, zoning applications must be addressed individually and not in comparison to other applications. See Reynolds v. Board of Appeals of Springfield, 335 Mass. 464 , 469-470 (1957); Spalke v. Board of Appeals of Plymouth, 7 Mass. App. Ct. 683 , 686-687 (1979); see also Burgraff v. Zoning Bd. of Appeals of Phillipston, 81 Mass. App. Ct. 1112 , n.3 (2012). Moreover, even if the Court were to consider whether disparate treatment of like properties that occurred after the last litigation demonstrated that the ZBA acted arbitrarily and capriciously, the properties provided by the Plaintiff are distinguishable from the Property. The property owners of all those properties applied for a permit to reconstruct within the two-year time frame set forth by the bylaw and were therefore never found to have abandoned the non-conforming structure. The 19 Beaver Dam Road property is distinguishable from the Property because the owner of 19 Beaver Dam Road immediately and continuously obtained permits to reconstruct, showing that the owner had not abandoned the non-conforming structure. The 47 Ocean Drive property is distinguishable from the Property because the dwelling on 47 Ocean Drive was still standing and in existence at the time of the permit applications, whereas here the Property did not have an existing non- conforming structure at the time of its application. The 167 Jericho Road property is distinguishable from the Property because the owners of 167 Jericho Road sought their first permit to rebuild in 1988, closely after it was destroyed by the flood in 1987. In other words, where the court to consider this evidence, it would give deference to the ZBAs legal conclusions and interpretation of its own bylaw, and determine whether the ZBA had applied the bylaw in an unreasonable, whimsical, capricious, or arbitrary manner. Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirley, 461 Mass. 469 , 474-475 (2012); Wendys Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374 , 381-382 (2009); Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478 , 486 (1999). The evidence of the other properties would not support a finding that the ZBA acted arbitrarily or capriciously through disparate treatment of the Property, and the ZBA's Decision would be affirmed.
For the foregoing reasons, the Plaintiff's Motion for Summary Judgment is DENIED, and the Defendant's Cross-Motion for Summary Judgment is ALLOWED. Judgment shall enter dismissing the Complaint with prejudice.