NELI RIDGE, LLC and SIXTH REALTY TRUST v. SHARON GEORGE, as Town Clerk for the Town of Wilmington, and THE TOWN OF WILMINGTON.

This action concerns two parcels of property referred to as 4 Poplar Street and 12 Polk Street in the Town of Wilmington (Town), both of which have been the subject of prior litigation. Plaintiffs Neli Ridge, LLC and Sixth Realty Trust, the agent and trustee of which is Mark Nelson (Nelson), filed their complaint for relief in the nature of mandamus pursuant to G.L. c. 249, § 5, and a declaratory judgment pursuant to G.L. c. 231A, seeking an order requiring the Town Clerk to issue a certificate of occupancy for 4 Poplar Street and a building permit for 12 Polk Street.

Nelson argues that he filed applications for the certificate of occupancy and the building permit with the Town of Wilmington Building Inspector, which were denied, and appealed those denials to the Town of Wilmington Zoning Board of Appeals (ZBA), who failed to act on his appeals within 100 days. Nelson submits that since the ZBA failed to act within the given time period provided by G.L. c. 40A, § 15, his applications were constructively approved. The defendants, Town Clerk Sharon George (Town Clerk) and the Town, contend that there was no constructive approval of Nelson's applications because his applications were incomplete and not properly filed, so that the Building Inspector and, subsequently, the ZBA, each lacked jurisdiction to consider the applications. In addition, the defendants assert that the substance of Nelson's applications is either outside the jurisdiction of the ZBA or barred by principles of res judicata. Both parties have moved for summary judgment. This Memorandum and Order follows.

Procedural History

The Plaintiffs filed their Complaint on December 9, 2016. The Answer of the Town of Wilmington and the Town Clerk to Complaint was filed on January 9, 2017. A case management conference was held on January 17, 2017. Plaintiffs' Motion for Summary Judgment, Memorandum of Law in Support of Plaintiffs' Motion for Summary Judgment, and Statement of Facts (SOF) were filed on February 17, 2017. On March 27, 2017, the Defendants filed the Municipal Defendants' Land Court Rule 4 Response to the Plaintiffs' "Statement of Facts" and the Municipal Defendants' Statement of Additional Undisputed Facts (Def. SOF), Defendants' Opposition to the Plaintiffs' Motion for Summary Judgment, the Municipal Defendants' Request for Disposition Pursuant to Mass. R. Civ. P. 56(b) and 56(c) and their Request for Oral Argument, Memorandum of Law in Support of the Municipal Defendants' Opposition to the Plaintiffs' Motion for Summary Judgment and in Support of their Request for Disposition, Pursuant to Mass. R. Civ. P. 56(b) and 56(c), Affidavit of John Spaulding (Spaulding Aff.), and Defendants' Supplemental Appendix. Plaintiffs' Reply to Defendants' Opposition to Plaintiffs' Motion for Summary Judgment and Plaintiffs Response to Municipal Defendants' Land Court Rule 4 Response to the Plaintiffs' Statement of Facts, the Municipal Defendants' Statement of Additional Undisputed Facts (Resp. SOF), and Affidavit of Mark D. Nelson (Nelson Aff.) were filed on April 6, 2017. A hearing on the cross-motions for summary judgment was held on April 6, 2017, and the court took the motions under advisement.

Summary Judgment Standard

Generally, 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 College v. Town of Weston, 462 Mass. 280 , 284 (2012), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991).

Undisputed Facts

Based on the pleadings and the documents submitted with the cross-motions for summary judgment, the following facts are undisputed or deemed admitted:

Background

1. Plaintiff Neli Ridge, LLC (Neli Ridge) is a limited liability company organized under the laws of the Commonwealth of Massachusetts and is the record holder of a certain parcel of land improved by a residential dwelling known as 4 Poplar Street in Wilmington (4 Poplar Street). [Note 1] Nelson is an authorized agent of Neli Ridge. SOF ¶ 1; Def. SOF ¶¶ 1, 67-68; Exh. 1; Nelson Aff. ¶ 1; Spaulding Aff. ¶¶ 13-14.

2. Plaintiff Sixth Realty Trust (Sixth Realty) is the record title holder of the parcel known as 12 Polk Street in Wilmington (12 Polk Street). Nelson is a trustee and duly authorized agent of Sixth Realty. SOF ¶ 2; Def. SOF ¶¶ 2, 69; Exh. 2; Nelson Aff. ¶ 2; Spaulding Aff. ¶ 15.

3. 4 Poplar Street and 12 Polk Street are located on private ways in Wilmington. SOF ¶¶ 3, 29; Def. SOF ¶¶ 3, 29; Exh. 3.

4. Both properties are shown on a plan of land entitled "Wilmington Gardens Addition Wilmington, Mass., owned by Frank W. Couglin," dated June 12, 1909 (1909 Plan). The 1909 Plan is recorded with the Middlesex North Registry of Deeds (registry) in Plan Book 26, Page 36. Exh. 5; Nelson Aff. ¶ 18.

5. The Town has an official map, as provided for in G.L. c. 41, § 81E (Official Map). The Official Map was created and became effective after a vote at a special town meeting on June 25, 1973. The Official Map shows the public ways and parks in the Town and private ways then existing and used in common by more than two owners. Def. SOF ¶¶ 43, 62; Exhs. 5, 20; Resp. SOF ¶ 43; Spaulding Aff. ¶¶ 7-8; Exhs. D, E.

6. The Official Map affects the issuance of building permits and Certificates of Occupancy (COO). The Town of Wilmington Planning Board (Planning Board) requires roadway extension and improvement prior to the issuance of the building permit for any property located off a way that is not shown on the Official Map, as well as inclusion of that way on the Official Map. The procedure for requesting inclusion on the Official Map is by a petitioned Town Meeting Warrant Article, with approval by a vote of Town Meeting. Spaulding Aff. ¶ 9.

7. The Planning Board reviews all applications for inclusion on the Town's Official Map and either files a report or renders a decision on the applications pursuant to G.L. c. 41, §§81F, 81G, concerning, at a minimum, the proposed grading, surfacing and drainage of any such way and whether it has been approved. Spaulding Aff. ¶ 10.

8. G.L. c. 41, § 81G, provides "[a]fter a city or town has adopted an official map under section [81E], no person shall open a way for public use, except as provided in the subdivision control law, unless the location of such way is in accordance with such official map as it then appears, or has been approved by the planning board under the provisions of this section, and in either case, the grading, surfacing and drainage of such way has been approved by such board."

9. Poplar Street and Polk Street are not on the Town's Official Map. Def. SOF ¶¶ 44-45; Resp. SOF ¶ 45; Spaulding Aff., Exhs. D, E, G.

4 Poplar Street

10. The property at 4 Poplar Street has been the subject of extensive prior litigation regarding numerous issues. SOF ¶ 5; Def. SOF ¶ 5.

11. On February 14, 2000, the Land Court (Kilborn, J.) issued a decision in New England Landevelopment, Inc. v. Board of Appeals Town of Wilmington, 8 LCR 51 (2000), regarding the Town's Official Map and various small parcels of land on paper streets within the Town that were not shown on the Official Map. Included in these small parcels was 4 Poplar Street. The issue concerned whether portions of the streets should have been placed on the Official Map or whether they were entitled to hardship relief from Official Map requirements. The court concluded that some of the lots were exempt under G.L. c. 41, § 81FF, from complying with the requirements of the subdivision control law, including 4 Poplar Street. The court was explicit that a § 81FF exemption did not absolve compliance with the Official Map and G.L. c. 41, § 81E. The decision specifically found that a vote of a board of appeals to issue a building permit does not obviate compliance with § 81G, which the planning board must be involved (2000 Land Court Action). SOF ¶ 6; Def. SOF ¶ 6; Exh. 5.

12. On June 26, 2000, the Building Department issued a foundation only building permit for a new dwelling (#200962) to the 81FF Realty Trust, predecessor in interest to Neli Ridge for which Nelson was the trustee, for 4 Poplar Street. Exh. 32; Spaulding Aff. ¶ 34, Exh. M.

13. On July 10, 2001, the Planning Board issued a conditional Certificate of Approval of a Section 81G Application concerning 4 Poplar Street. The Certificate of Approval was recorded at the registry on July 25, 2014 in Book 28345, Page 281. SOF ¶ 7; Def. SOF ¶ 7; Exhs. 3, 39.

14. The Section 81G Plan approved by the Planning Board was recorded at the registry in Plan Book 195, Plan 15. SOF ¶ 8; Def. SOF ¶ 8; Exh. 6.

15. In 2003, Nelson sought a building permit for a new dwelling from the former Building Inspector, Dan Paret, for 4 Poplar Street. On January 6, 2003, Paret rendered a decision denying Nelson's request for a building permit stating: "I will not issue a building permit for [4 Poplar Street] until you [Nelson] have been granted 81G approval." Nelson appealed the Building Inspector's decision to the State Building Code Appeals Board (SBCAB). Spaulding Aff. ¶ 31, Exh. J.

16. During the SBCAB appeal, Nelson testified that he had a foundation only permit for 4 Poplar Street and that he built a garage without a building permit issued from the Town. The SBCAB upheld the Building Inspector's denial of the building permit. Spaulding Aff. ¶ 32, Exh. K.

17. Nelson appealed the decision of the SBCAB to the Superior Court via an action entitled Nelson v. State Building Code Appeals Board, No. 2003-02097. In the Superior Court appeal, a stipulation of dismissal with prejudice was filed on April 6, 2004 and the case was dismissed. Spaulding Aff. ¶ 33, Exh. L.

18. On March 10, 2004, the prior Building Inspector Paret issued a building permit (#20040351) for a residential dwelling on 4 Poplar Street to the 81FF Realty Trust. SOF ¶¶ 4, 9; Def. SOF ¶ 9; Exhs. 4, 32; Nelson Aff. ¶ 3; Spaulding Aff. ¶ 34, Exh. M.

19. Nelson asserts that all required inspections were completed in 2004 and 2005, although records show that certain wiring/electrical and gas inspections took place in 2011. Exh. 26.

20. On August 15, 2012, after completion of construction at 4 Poplar Street, the Building Inspector for the Town denied Nelson's June 22, 2012 application for a COO based upon his purported failure to comply with the State Building Code by not submitting correct as- built plans to the Planning Board pursuant to G.L. c. 41, § 81G, and certified as-built plot plans. SOF ¶ 10; Def. SOF ¶ 10; Exh. 25; Spaulding Aff. ¶ 26, Exh. F.

21. Nelson again appealed the denial of the COO to the SBCAB. On November 14, 2012, the SBCAB denied Nelson's appeal and upheld the denial of the COO, stating that accurate as-built plans must be provided and approved by the planning board. In the appeal, Nelson admitted that the house, as constructed, eliminated the attached garage portion as depicted in the plans which were approved by the Town on March 10, 2004, as part of the building permit application, and built a separate garage structure that was in violation of a variance setback. Nelson asserted that the building official at the time of framing for the main house "signed off" on the framing and elimination of the garage. The Building Inspector, John Spaulding (Spaulding), testified that Nelson failed to provide a set of as-built plans, the plans on file for the building permit did not accurately reflect what was actually constructed, and there was no building permit issued for the separate garage structure, only a foundation permit for the garage. The SBCAB found "[t]he evidence showed that, regardless of what a prior building official may have approved with respect to the framing of the dwelling, the actual plans for the dwelling on file with the Town and approved to issue the building permit did not reflect what was actually constructed. . . . In addition, the evidence showed that Appellant had not obtained the required approval from the Town's planning board." SOF ¶ 11; Def. SOF ¶¶ 11, 51-52, 81; Exh. 26; Spaulding Aff, Exhs. F, G.

22. Nelson appealed the decision of the SBCAB to the Superior Court as Civil Action No. 2012-04873, where he was named a plaintiff both individually and as trustee of the Fifth Realty Trust, which then owned 4 Poplar Street. On April 3, 2014, the Superior Court (Haggerty, J.) denied Nelson's Motion for Judgment on the Pleadings, upholding the decision of the SBCAB that Nelson must submit as-built plans demonstrating that "all work was completed in accordance with the provisions of the approved permit and the applicable codes stamped by a Professional Engineer" (2014 Superior Court Action). SOF ¶¶ 12-13; Def. SOF ¶¶ 12-13, 53, 82; Exhs. 7, 27; Spaulding Aff., Exhs. F, G, H, I.

23. Nelson appealed the Superior Court's decision to the Appeals Court as appeal no. 14-P-1077. On April 9, 2015, the Appeals Court affirmed the decision of the Superior Court upholding the decision of the SBCAB that affirmed the decision of the Building Inspector denying the requested COO because Nelson "admitted to the board that the buildings they constructed failed to conform to the plans they originally submitted with their application for a building permit. They also conceded they did not submit as-built plans, which would have corrected the issue and resolved their claims without litigation." The Appeals Court stated: "We need not consider the Nelsons' argument that they were not required to gain approval of the Wilmington planning board, as the board's decision was based on the Nelsons' failure to comply with the State building code." SOF ¶¶ 14-16; Def. SOF ¶¶ 14-16, 54; Exhs. 8, 28; Spaulding Aff., Exhs. F, G.

24. On May 26, 2016, Nelson submitted as-built plans to the Building Inspector for the purposes of issuance of a COO for 4 Poplar Street. SOF ¶ 17; Def. SOF ¶ 17; Spaulding Aff., Exhs. F, G; Nelson Aff. ¶ 5, Exh. C.

12 Polk Street

25. There is a house located at 6 Polk Street that is owned by Nelson's parents. While 12 Polk Street once had a structure on it that was erected sometime in the 1950s, a fire occurred sometime in 1973, which completely destroyed the structure. That structure has never been rebuilt. Spaulding Aff., Exh. C, ¶¶ 10-11, 19

26. While "Polk Street" appears on a subdivision plan approved by the Town Board of Survey in 1909, that subdivision was never built. The road work for that proposal has not been completed pursuant to the plan. The surface of Polk Street is decrepit and stops short of the lot boundary known as 12 Polk Street, by approximately 100 feet. Polk Street, as it abuts the 12 Polk Street parcel, has not been constructed. Spaulding Aff., Exh. C, ¶¶ 10, 20-21

27. On March 13, 2008, Nelson requested that the Building Inspector determine whether 12 Polk Street was a pre-existing, nonconforming lot. The Building Inspector responded on May 6, 2008, that 12 Polk Street was not a pre-existing, nonconforming lot. The Building Inspector's determination concluded that 12 Polk Street (1) failed to comply with § 5.2.3 of the Zoning Bylaw of the Town of Wilmington (Bylaw), and (2) had zero feet of frontage since Polk Street had not been constructed in the location of the 12 Polk Street parcel. The Building Inspector also noted that he was unable to determine if 12 Polk Street had been held in common ownership at any point, due to the fact that Nelson had submitted insufficient information. Exh. 15.

28. On June 5, 2008, the Building Inspector denied Nelson's application for a building permit for 12 Polk Street. Exh. 15.

29. On June 11, 2008, Nelson submitted an Application for Hearing to the ZBA requesting a variance from the Town's Official Map and appealing the Building Inspector's refusal to issue a building permit for 12 Polk Street (case no. 24B-08). Exh. 15.

30. The ZBA held a public hearing on Nelson's application on July 9, 2008. The hearing was continued to August 13, 2008, in order for the ZBA to obtain an opinion from Town Counsel regarding the ZBA's authority to issue a building permit pursuant to G.L. c. 41, § 81E. Exh. 15.

31. On July 14, 2008, Nelson provided additional information to the Building Inspector, including a plot plan that showed the existing paved and gravel portions of Polk Street, grades, topography, lot lines, abutting owners, and access to 12 Polk Street. Exh. 15.

32. In response to the additional information provided by Nelson, Town Counsel issued an advisory opinion on August 12, 2008, which concluded that Nelson was not entitled to a building permit for 12 Polk Street because (1) the lot did not comply with § 5.2.3 of the Bylaw, (2) the lot did not receive grandfather protection from the Bylaw because it lacked adequate frontage, (3) the alleged existence of a dirt street not constructed with Planning Board approval is not sufficient for establishing frontage, (4) even if a variance from the Official Map were granted, a building permit could not issue until the way providing frontage for 12 Polk Street was constructed with Planning Board approval, and (5) any grandfather protection that 12 Polk Street enjoyed has been abandoned. Exh. 15.

33. On August 13, 2008, the ZBA upheld the Building Inspector's denial of the building permit, but granted Nelson a variance under G.L. c. 41, § 81Y, from the Town's Official Map for 12 Polk Street, finding that there is a practical difficulty and unnecessary hardship in complying with the requirement that Nelson's property be on a way shown on the Official Map. The ZBA conditioned its approval on Nelson's compliance with G.L. c. 41, § 81G, which requires that the Planning Board approve construction of Polk Street with respect to its grading, surfacing and drainage. SOF ¶ 30; Def. SOF ¶ 30; Exh. 14; Spaulding Aff., Exhs. C, D.

34. Nelson appealed the ZBA's decision to the Land Court (08 MISC 383336) regarding the Building Inspector's denial of the building permit. No appeal was taken from the portion of the ZBA's decision regarding the condition in the variance that Nelson comply with G.L. c. 41, § 81G. SOF ¶ 31; Def. SOF ¶ 31.

35. On February 8, 2011, the Land Court (Scheier, J.) upheld the ZBA's denial to issue a building permit and affirmed the condition imposed by the ZBA regarding § 81G Planning Board approval of improvements to Polk Street. Regarding the conditional variance, the court specifically stated: "No appeal was taken from this portion of the Board's decision, by Plaintiff or by any other interested party; thus, the parties are bound by this decision. In order to obtain a building permit, Plaintiff must obtain Planning Board approval for the construction of Polk Street in accordance with G.L. c. 41, § 81G and actually construct the street in accordance with the approved plans" (2011 Land Court Action). Nelson appealed the Land Court's decision to the Appeals Court. SOF ¶ 32; Def. SOF ¶¶ 32, 48-49; Exhs. 15, 23; Spaulding Aff., Exhs. C, D.

36. On May 3, 2012, the Appeals Court affirmed the Land Court's decision in Nelson v. Town of Wilmington, 81 Mass. App. Ct. 1133 (2012). SOF ¶ 33; Def. SOF ¶¶ 33, 50; Exhs. 16, 24; Spaulding Aff., Exh. E.

37. No extension to Polk Street to serve an additional dwelling at 12 Polk Street has ever been presented to the Planning Board. Neither Nelson, nor anyone else acting on behalf of the property owner, has ever filed any application or plans for the construction or improvement of Polk Street. Def. SOF ¶ 76; Spaulding Aff. ¶ 22.

Current Action

38. On June 16, 2016, Nelson attempted to file an application with the Town Clerk seeking to overturn the decision of the Building Inspector's denial of the COO and requesting the issuance of the COO for 4 Poplar Street. The Town Clerk refused to accept the filing and directed Nelson to file the application with the Building Department. Nelson filed the application/petition with the Inspector of Buildings Office. SOF ¶ 18; Def. SOF ¶ 18; Nelson Aff. ¶ 6.

39. Also on June 16, 2016, Nelson filed a pre-application/petition to amend the previous ZBA decision to remove the § 81G condition from the variance granted on August 13, 2008, for 12 Polk Street that required a § 81G application and plan be filed with the Planning Board. Nelson's application also sought the issuance of a building permit for 12 Polk Street to allow construction of a single-family, two-bedroom dwelling for his personal residence. SOF ¶¶ 34-35; Def. SOF ¶¶ 34-35.

40. On June 21, 2016, the Building Inspector, Spaulding, sent two letters to Nelson regarding his applications—one for 4 Poplar Street and one for 12 Polk Street. In reference to 4 Poplar Street, Spaulding stated that Nelson's application could not go forward because, among other reasons, "no Planning Board approval [pursuant to § 81G] was ever sought or approved which is required." In reference to 12 Polk Street, Spaulding stated that as he had never received or reviewed any building permit application for that parcel, which is a prerequisite to any submission to the Board of Appeals, Nelson's application could not go forward since it was incomplete. SOF ¶¶ 19, 36; Def. SOF ¶¶ 19, 36; Exhs. 9, 18, 33-34; Nelson Aff. ¶ 7; Spaulding Aff. ¶¶ 22, 35-36, Exhs. N, O.

41. On June 28, 2016, Nelson sent application to the Town Clerk via priority mail appealing to the ZBA the Building Inspector's June 21, 2016 letters declining to review his applications for 4 Poplar Street and 12 Polk Street. The Town Clerk received and date stamped the application on June 30, 2016. In addition, the renewed application sought relief from the restrictions of the Official Map and a determination that the Official Map does not apply to 4 Poplar Street. The application also sought confirmation from the ZBA that the April 9, 2015 decision of the Appeals Court required only the submittal of "as-built" plans in order to authorize the issuance of a COO for 4 Poplar Street. SOF ¶¶ 21-23; Def. SOF ¶¶ 21-23; Exhs. 10, 17; Nelson Aff. ¶ 8.

42. On July 1, 2016, Secretary to the ZBA, Toni La Rivee, sent a letter to Nelson stating that the 4 Poplar Street and 12 Polk Street application materials were being returned because they were incomplete and/or not within the jurisdiction of the ZBA. The application materials were returned to Nelson. SOF ¶¶ 24, 37; Def. SOF ¶¶ 24, 37; Exhs. 11, 35-36; Nelson Aff. ¶ 9; Spaulding Aff. ¶¶ 37-38, Exhs. N, P, Q.

43. In reference to 4 Poplar Street, Nelson's package of attempted filings was returned to him for several reasons, including the fact that: (1) the ZBA does not have jurisdiction to issue certificates of occupancy, and (2) the ZBA does not have jurisdiction to approve G.L. c. 41, § 81G, plans. Spaulding Aff., Exhs. N, P.

44. In reference to 12 Polk Street, Nelson's package of attempting filings was returned to him because (1) the building inspector did not receive or review any building permit application, and thus, there was no decision on an application to appeal, and (2) all G.L. c. 41, § 81G, applications were to be filed with the Planning Board, not the ZBA. Spaulding Aff., Exhs. O, Q.

45. The ZBA did not open a public hearing on Nelson's applications for 4 Poplar Street and for 12 Polk Street. SOF ¶¶ 25, 38; Def. SOF ¶¶ 25, 38; Spaulding Aff., Exhs. O, Q; Nelson Aff. ¶ 10.

46. On October 14, 2016, more than 100 days after filing his application for the appeal of the denial of the COO for 4 Poplar Street, Nelson filed a Notice of Constructive Approval with the Town Clerk. SOF ¶ 26; Nelson Aff. ¶ 11; Exh. 12.

47. Also on October 14, 2016, more than 100 days after filing his application for the appeal of the denial of the 81G variance condition and building permit for 12 Polk Street, Nelson filed a Notice of Constructive Approval with the Town Clerk. SOF ¶¶ 39-40; Exh. 19; Nelson Aff. ¶ 16.

48. No appeal of either Notice of Constructive Approval was filed within 20 days. SOF ¶¶ 27, 41; Def. SOF, ¶¶ 27, 41; Nelson Aff. ¶¶ 12, 17.

49. On November 2, 2016, the Town Clerk sent a letter to Nelson indicating that no constructive approval of the 4 Poplar Street application or 12 Polk Street application had occurred, therefore she would not issue a Certificate of Constructive Approval to Nelson. SOF ¶¶ 28, 42; Def. SOF ¶¶ 28, 40, 42; Exhs. 13, 37.

Discussion

In their Complaint, the Plaintiffs seek relief in the nature of mandamus pursuant to G.L. c. 249, § 5, and a declaratory judgment pursuant to G.L. c. 231A They request that the court issue an order requiring the Town Clerk and Town (a) to issue a COO for the dwelling at 4 Poplar Street, (b) to remove the condition of the variance requiring a § 81G approved plan for 12 Polk Street, and (c) to issue a building permit for 12 Polk Street. Nelson contends that his appeals from the Building Inspector's decisions with respect to 4 Poplar Street and 12 Polk Street were constructively approved by the ZBA when it failed to act on the applications within the 100-day period allowed by G.L. c. 40A, § 15. In his Notices of Constructive Approval, filed with the Town Clerk on October 14, 2016, Nelson states that the Board failed to act on his applications with 100 days after June 30, 2016, the date he filed his appeals.

The Town contends that Nelson did not submit proper and complete applications to the Building Inspector and, thus, the Building Inspector declined to make a decision on the applications stating that the applications could "go no further." The Town asserts that because the Building Inspector issued no decision regarding the applications, the ZBA did not have jurisdiction to review Nelson's appeal, and the constructive approval period was never triggered. The Town also asserts that Nelson's claims in this action are barred by principles of res judicata. Each argument is addressed in turn below.

I. Constructive Approval

G.L. c. 40A, § 15, provides the procedure for an appeal to a board of appeals from an order or decision of a zoning administrator. Section 15 of G. L. c. 40A provides in relevant part:

The decision of the board shall be made within one hundred days after the date of the filing of the appeal, application or petition, except in regard to special permits, as provided for in section nine. . . . Failure by the board to act within said one hundred days or extended time, if applicable, shall be deemed to be the grant of the appeal, application or petition.

Section 15 provides a "two-step process for handling zoning applications: first, the board must decide ('act'); then, second, it must reduce its decision to final written form and file it with the town clerk." Burnham v. Town of Hadley, 58 Mass. App. Ct. 479 , 482 (2003). "The purpose of the constructive approval provisions of the statute, together with the requirement that the board make its decision within a set period of time, is to induce the board to act promptly on appeals." Niall v. Guaranteed Bldrs. & Dev., Inc., 23 LCR 589 , 592 (2015), citing Board of Aldermen of Newton v. Maniace, 429 Mass. 726 , 729 (1999); see Capone v. Zoning Bd. of Appeals of Fitchburg, 389 Mass. 617 , 623 (1983). "If not, the applicant prevails by default. Thus the statute takes aim at boards that fail to timely act and promotes the interests of applicants in prompt decisions and avoidance of stalemate by board inaction." Niall, 23 LCR at 592. Courts, however, have been particularly careful to consider what conduct of the zoning administrator and the board is sufficient to initiate the constructive approval period and whether there was proper jurisdiction.

Zoning boards of appeal have jurisdiction of the subject matter of appeals taken by any person aggrieved by any "order or decision" of a zoning officer. See G.L. c. 40A, §§ 8, 15. In general, this requires a written decision by a zoning administrator either approving or denying an application or request and stating the reasons for such a determination. Vokes v. Avery W. Lovell, Inc., 18 Mass. App. Ct. 471 , 477 (1984). "The lack of formal action by a [zoning officer] is a jurisdictional defect fatal to an appeal under G.L. c. 40A, § 8, though it disappears if ignored by the board of appeals." Maini v. MacDonald, 7 LCR 114 , 114 (1999), citing Worcester County Christian Communications, Inc. v. Board of Appeals of Spencer, 22 Mass. App. Ct. 83 , 85 (1986) (board raised jurisdictional defect only after plaintiff appealed under G.L. c. 40A, § 17, constituted waiver of jurisdictional flaw). In other words, G.L. c. 40A, §§ 8, 15 sets up a simple administrative procedure for zoning appeals, a prerequisite of which is an actual determination issued by a zoning administrator. See Elio v. Zoning Bd. of Appeals of Barnstable, 55 Mass. App. Ct. 424 , 430 (2002). Where the local zoning official has made no determination, courts have consistently held that the appeals board lacked jurisdiction since there was no appealable decision as contemplated by the statutory scheme. See id. at 428 (building inspector must provide a written denial of an enforcement request pursuant to G.L. c. 40A, § 7); Peterson v. Cargill, 14 LCR 403 , 406-407 (2006) (board of appeals lacked jurisdiction where building inspector did not issue formal decision from which an appeal can be taken); Maini, 7 LCR at 114 (building inspector's decision was advisory at best and lacked finality that would make it subject to appeal). In addition, where a board never accepts an appeal, courts have held that the constructive approval period never begins to run. See Zoning Bd. of Appeals of Town of Auburn v. Hipson, No. 022212D, 2005 WL 1476452, at *5-6 (Mass. Super. May 6, 2005) (where board never accepted appeal, the board did not fail to act within the meaning of § 15).

In this case, Nelson submitted two applications for Building Inspector Spaulding to review on June 16, 2016. The first application sought to overturn a previous decision of the Building Inspector to deny a COO for 4 Poplar Street and requested the issuance of the COO. The second application sought the issuance of a building permit for 12 Polk Street to allow construction of a single-family two-bedroom dwelling for his personal residence and to amend the previous ZBA decision to remove the § 81G condition from the variance granted on August 13, 2008. Spaulding did not provide any written determination to Nelson on the applications submitted for the two properties. Rather, on June 21, 2016, he sent letters to Nelson explaining that he was not accepting the applications as they were incomplete. In reference to 4 Poplar Street, Spaulding stated that Nelson's application could not go forward because, among other reasons, "no Planning Board approval [pursuant to § 81G] was ever sought or approved which is required." In reference to 12 Polk Street, Spaulding stated "I have not received or reviewed a building permit application [for 12 Polk Street]. This decision is a requirement to appeal my decision with the Boad of Appeals." Nelson's application for 12 Polk Street, could not go forward since it was incomplete. Spaulding's correspondence was not a final decision. It merely served to notify Nelson of the defects in his applications that prevented him from issuing a determination. There was no appealable decision on either application as contemplated by § 8.

Nevertheless, on June 28, 2016, Nelson mailed two Applications for Hearing to the ZBA, appealing the Building Inspector's June 21, 2016 correspondence in which he declined to review Nelson's applications for 4 Poplar Street and 12 Polk Street. The Town Clerk received and date stamped the applications on June 30, 2016. Both applications are two pages in length, the first being the application for hearing form and the second being a description of the proposed work/activity, which is a list of reasons why the request sought should be granted. Like Spaulding, the ZBA chose not to accept the applications as they were incomplete and/or not within the jurisdiction of the ZBA. On July 1, 2016, the Secretary of the ZBA sent letters notifying Nelson that his applications were not accepted, stated the reasons why, and informed him that his application materials were being returned to him. The ZBA did not open a public hearing on Nelson's applications for 4 Poplar Street and for 12 Polk Street and never discussed the merits of Nelson's applications.

The Secretary's letter makes it clear that the ZBA did not ignore or acquiesce to the lack of formal action by Spaulding and the jurisdictional defect in the administrative review process, but rather expressly agreed with Spaulding that the applications submitted were insufficient and not within the ZBA's authority to take the appeal. Because the ZBA lacked jurisdiction over the appeal from Spaulding and refrained from hearing the matter before ever discussing the merits, the time period for a constructive approval was never triggered. Since the ZBA never accepted the appeal, they did not fail to act within the meaning of § 15 and no constructive approval of the 4 Poplar Street application or the 12 Polk Street application occurred. General Laws as c. 231A may not be used to bypass the ordinary process for administrative review of zoning matters. See Maini, 7 LCR at 114, citing Clark & Clark Hotel Corp. v. Building Inspector of Falmouth, 20 Mass. App. Ct. 206 , 209-214 (1985). Accordingly, Nelson's claim for a declaratory judgment under G.L. c. 231A, that his applications were constructively approved, is dismissed for lack of subject matter jurisdiction.

II. Action in the Nature of Mandamus G.L. c. 249, § 5

The remaining count in Nelson's complaint is a claim for mandamus under G. L. c. 249, §5. Nelson seeks an order requiring the Town to issue a COO for the dwelling at 4 Poplar Street, to remove the condition of the variance requiring a § 81G approved plan for 12 Polk Street, and to issue a building permit for 12 Polk Street, since the Town Clerk refused to issue the Certificate of Constructive Approval. "Generally, an action in the nature of mandamus is a mechanism by which the court may compel the performance by a public officer of his or her official duty." Cyzoski v. Slade, 17 LCR 701 , 701 (2009), citing J & R Inv., Inc. v. City Clerk of New Bedford, 28 Mass. App. Ct. 1 , 7 (1989); G.L. c. 249, § 5; Knights v. Burrell, 236 Mass. 336 (1920). "[Where] a town clerk refuses to issue a certificate, a developer can seek relief in the nature of mandamus." Kitras v. Zoning Adm'r of Aquinnah, 453 Mass. 245 , 255 (2009). "It is an elementary principle that mandamus will not lie where there is available another and effective remedy." Madden v. Secretary of the Commonwealth, 337 Mass. 758 , 761 (1958).

Under the circumstances of this action, Nelson cannot request enforcement by mandamus. Since the Building Inspector never issued a decision denying Nelson's applications for a COO, building permit, and removal of the condition of the variance, there is no remedy to be sought. Nelson improperly appealed to the ZBA from the determination of the Building Inspector that the applications were incomplete or not properly before him. The ZBA lacked jurisdiction to review those applications or subject them to constructive approval. Because Nelson failed to follow the proper procedures of G.L. c. 40A, §§ 8 and 15, he cannot now request the issuance of the COO and building permit by mandamus. Nelson may not utilize G.L. c. 249, § 5 to bypass the appropriate administrative procedures. Nelson's claim under G. L. c. 249, § 5, must be dismissed.

III. Res Judicata

Even if Nelson's complaint did not suffer from such fatal jurisdictional defects, many of his claims would be barred by the doctrine of res judicata. 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.

Claim preclusion and issue preclusion have similar standards. "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). 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." Kobrin v. Board of Registration in Medicine, 444 Mass. 837 , 843 (2005), quoting Heacock, 402 Mass. at 23 n. 2. In order 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; . . . (3) the issue in the prior adjudication was identical to the issue in the current adjudication[; and (4)] the issue decided in the prior adjudication must have been essential to the earlier judgment." Id. at 843-844, quoting Tuper v. North Adams Ambulance Serv., Inc., 428 Mass. 132 , 134 (1998).

There is no dispute that the both the plaintiffs and the defendants in the current action are identical or in privity with the plaintiffs and defendants in prior actions. In the 2011 Land Court Action and 2014 Superior Court Action, Nelson was either named individually, or as a trustee of the Trust which owned the subject properties, and the Town was named as a defendant. Here, Nelson is the agent and trustee of the Plaintiffs Neli Ridge and Sixth Realty Trust, the current record owners of 4 Poplar Street and 12 Polk Street, and the Town and Town Clerk are named as defendants. 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 America, N.A., No. SUCV 201201282, 2013 WL 7196330, at *3 (Mass. Super. June 18, 2013).

In this action, the 2011 Land Court Action, and the 2014 Superior Court Action, Nelson's interest, whether individually, as agent, or as a trustee, was to obtain a COO for 4 Poplar Street and seek a building permit for 12 Polk Street, and that interest was adequately represented in those prior cases.

A claim or issue 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 Med. Ctr., 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).

The prior actions and the current action arise out of the same series of transactions: Nelson's attempt to obtain a COO for 4 Poplar Street and a building permit for 12 Polk Street. There is no change in the relevant facts between the previous actions and this action. The facts in all the cases are related. All the actions, including this one, have the same origin and motivation and seek the same result, that is the judicial overturning of the Building Inspector's and ZBA's refusal to issue a COO absent a § 81G plan approved by the Planning Board for 4 Poplar Street and the refusal to issue a building permit to 12 Polk Street. There has been 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) (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).

In the 2011 Land Court Action, judgment entered in favor of the Town, ZBA, and Building Inspector. The decision upheld the Building Inspector's refusal to issue the building permit for 12 Polk Street on the grounds that the property lacked frontage since it was not shown on the Official Map and that the ZBA "specifically requires [Nelson] to comply with G.L. c. 41, § 81G, which provides for approval from the Planning Board regarding grading, surfacing, and drainage of Polk Street." On May 3, 2012, the Appeals Court upheld the decision in the 2011 Land Court Action. Since then, no extension to Polk Street to serve an additional dwelling at 12 Polk Street has ever been presented to the Planning Board, and Nelson has never filed any application or plans for the construction or improvement of Polk Street. His petition to Spaulding in the present matter again sought a building permit for 12 Polk Street, but did not include a building permit application and in only one line requested "to remove the 81 G restriction from [the] variance." [Note 2] Nothing new has been presented by Nelson in this case that was not previously before the Building Inspector or the ZBA.

Similarly, in the 2014 Superior Court Action, judgment entered in favor of the Town, Planning Board, and Building Inspector. The decision upheld the Building Inspector's refusal to issue a COO for 4 Poplar Street, finding that Nelson must submit as-built plans to the Planning Board pursuant to § 81G demonstrating that "all work was completed in accordance with the provisions of the approved permit and the applicable codes stamped by a Professional Engineer." On April 9, 2015, the Appeals Court affirmed the judgment of the 2014 Superior Court Action. Nelson has not filed any § 81G plans for 4 Poplar Street nor obtained approval of such plans by the Planning Board. The claims and issues in this appeal are the same as those 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 issues decided in the prior judgments were all essential to those judgments. The claims and issues are the same for purposes of res judicata.

The last element of preclusion is also met here because the 2011 Land Court Action and the 2014 Superior Court Action both resulted in judgments on the merits, disposing of the claims and issues discussed above. All the elements of res judicata are satisfied. This action constitutes at least the third in a series of repetitive claims based on the same alleged wrong, and is precluded by the outcomes of the previous actions.

Conclusion

For the foregoing reasons, the Plaintiffs' Motion for Summary Judgment is DENIED and the Defendants Motion for Summary Judgment is ALLOWED. Judgment shall enter dismissing the complaint with prejudice.

SO ORDERED