Home JOSEPH M. LAZAREK, as Trustee of the Cliffs Realty Trust v. MICHAEL SULLIVAN, BRIDGET MURRAY, JAMES DIEDRICH, ANDREW COCKER, and GARY GILBERT, as Members of the Manchester-By-The-Sea Board of Appeals, and CATHLEEN E. KAVANAUGH, as Trustee of the Smith's Point Realty Trust.

MISC 15-000555

February 9, 2018

Essex, ss.




In 1943, the United States of America seized 0.37 acres from a 2.24-acre property owned by Mary Sumner, atop Gales Point in Manchester-By-The-Sea. The U.S. Army erected upon the site a ten-story, 100-foot-tall concrete "fire control" tower, one with a sweeping view of the Atlantic. The tower wasn't built to control fires, of course; instead, it was to assist the Boston Harbor Defense Command in directing coastal artillery (that is, "control" the "fire" of guns) towards offshore targets, principally enemy submarines. The tower also sheltered uniformed ground observers, many of them civilian volunteers, whose charge was to spot those submarines and approaching enemy aircraft.

The tower's role in homeland defense ended with the Allied victories in 1945. In 1951, the government sold the tower and the lot beneath it to the new owners of Mrs. Sumner's property, Richard and Anita Curtis. (With one reservation: in a nod to the new era of warfare, the United States reserved the right to reenter the lot and remove "uranium, thorium, and all other materials determined pursuant to Section 5(b)(1) of the Atomic Energy Act of 1946 . . . to be peculiarly essential to the production of fissionable materials, contained in whatever contraption, in deposits" at the site.) One of the defendants in the two cases now before this Court, Cathleen E. Kavanaugh, the trustee of the Smith's Point Realty Trust (Smith's Point being the modern name for Gales Point), currently owns the Curtis property, tower and all. Trustee Kavanaugh has renovated the tower at considerable expense, creating what some have called a "luxury yacht standing upright." She built the land yacht with the permission of the Town of Manchester-By-The-Sea, which considers the tower to be a lawful nonconforming structure under the town's Zoning By-law.

An abutter, plaintiff Joseph M. Lazarek, the current trustee of the Cliffs Realty Trust ("CRT"), finds the former defense facility to be, well, offensive. CRT asked the town's building inspector in 2015 to enforce the town's Zoning By-law against Trustee Kavanaugh. The inspector refused. CRT appealed the refusal to the town's Board of Appeals. (The Board is also a defendant in these cases.) The Board sided with the inspector, and CRT appealed further to this Court under G.L. c. 40A, § 17, in Case No. 15 MISC 000555 ("Case 1"). (CRT originally claimed in Case 1 that Trustee Kavanaugh also had violated By-law requirements pertaining to increasing impervious surfaces, altering topography and removing earth. CRT also challenged Trustee Kavanaugh's construction of a pergola on her property. CRT dropped those claims in October 2016.)

In late 2016, at Trustee Kavanaugh's request, the Board granted a modification to a special permit obtained in 2011 by a prior owner of the tower. The modification allowed Trustee Kavanaugh to connect the tower to a corridor linking the Trustee's principal residence and a new garage on her property. CRT appealed the modification decision to this Court under § 17, in Case No. 17 MISC 000144 ("Case 2").

The parties are before the Court on cross-motions for summary judgment, in both Case 1 and Case 2. CRT's strongest attack on Trustee Kavanaugh's activities centers on the tower's alleged loss of its status as a lawful nonconforming structure under the town's Zoning By-law. Understanding CRT's arguments, and whether they'll accomplish what enemy forces did not, requires examining two histories: that of the tower, and that of the Zoning By-law.

Those histories are largely undisputed. When the Army built the tower, Manchester-By-The-Sea had no zoning bylaw. The town didn't adopt one until 1945, and when it did, the military could care less, as the federal government was (and still is) exempt from local zoning laws. See Mark Bobrowski, Handbook of Massachusetts Land Use and Planning Law, § 4:10 (3d ed. 2011).

But the 1945 By-law did apply to the Curtises. When they bought the tower, they were obliged to use it in accordance with the By-law. Their property lay within what the 1945 By-law called a Single Residence District. In that district, one could use a property for residential and certain accessory uses, and no building could "exceed two and one-half stories in height," "towers . . . not used for human occupancy" excepted.

The tower well exceeded the height limit. But § IV.A of the 1945 By-law came to the Curtises' rescue. Section IV.A provided in part (emphasis in original):

Continuation of Non-conforming uses of Buildings and Land. Any building or use of a building . . . lawful and existing at the time this by-law is adopted may be continued, unless and until abandoned, although such building or use does not conform to the provisions hereof. . . .

The tower was both "lawful and existing" as of the By-law's adoption, and thus § IV.A allowed the Curtises to do two things. First, it allowed them to continue using the tower as a defense facility, "unless and until abandoned." As far as anyone knows, the Curtises didn't use the tower militarily; such uses likely yielded to residential activities such as storage of household items and enjoying a good view. Second, and more importantly, § IV.A allowed the Curtises to continue using the too-tall tower as a residential or other accessory structure, "unless and until abandoned." Whether the Curtises or their successors in interest ever abandoned the tower outright, as a structure, is the hot issue in Cases 1 and 2.

The 1945 By-law didn't define "abandoned." The Commonwealth's zoning enabling act circa 1945 didn't use the word "abandon" either, but it did allow municipalities to regulate the "nonuse of nonconforming buildings and structures so as not to unduly prolong the life of nonconforming uses." G. L. c. 40, § 26, as added by St. 1933, c. 269, § 1. In reviewing a local zoning bylaw that ended protection of nonconforming uses once they had been "discontinued," the Court in Pioneer Insulation & Modernizing Corp. v. Lynn, 331 Mass. 560 , 565 (1954), agreed with the general principle that "'discontinued' is the equivalent of abandoned." The Court went on to hold that

the discontinuance of a nonconforming use results from the concurrence of two factors, (1) the intent to abandon and (2) voluntary conduct, whether affirmative or negative, which carries the implication of abandonment. Thus nonoccupancy of the premises and suspension or cessation of [its use] due to causes over which the owner has no control do not of themselves constitute a discontinuance; and lapse of time is not the controlling factor, although it is evidential, especially in connection with facts showing an intent to discontinue the use.

Id. (bracketed material added). To the same effect is another postwar case, Dobbs v. Board of Appeals of Northampton, 339 Mass. 684 , 686-87 (1959).

Pioneer Insulation's notion of "abandonment"– what this Decision will call the "common-law" abandonment test – persists to this day. See, for example, Chiaraluce v. Zoning Board of Appeals of Wareham, 89 Mass. App. Ct. 290 , 294 (2016). And as Chiaraluce instructs, one may "abandon" a nonconforming structures just like one may "abandon" a nonconforming use.

CRT contends that, although the Curtises paid good money for the tower, they abandoned it. And once abandoned (so argues CRT), the tower lost its status as a lawful nonconforming structure, and thus the permits Trustee Kavanaugh received in later years to renovate the tower – permits that depended on the tower's status as a lawful nonconforming structure – are worthless.

CRT offers evidence that by 1972, the Curtises had fenced off the tower. High grass and trees had grown around it, and the tower's unheated interior was dark, dank and musty. (This testimony comes from Stephen R. Holt, a local architect who, at age 33 and in broad daylight, somehow penetrated the thick brush surrounding the tower, breached its perimeter fence, and evaded Mrs. Curtis (her spouse had died) to get a good look inside.) CRT asks the Court to infer from the tower's condition in 1972 that Mrs. Curtis had both the intent to abandon the tower as a structure and had taken voluntary steps to effect abandonment.

CRT wants the Court to draw these inferences from evidence that CRT has tendered in support of its motion for summary judgment. In considering such a motion, a court may not draw from the moving party's evidence inferences that favor the moving party. Any reasonable inference from evidence offered by the moving party must be drawn in favor of the non-moving party (here, Trustee Kavanaugh and the Board). See Regis College v. Town of Weston, 462 Mass. 280 , 284 (2012). That Cases 1 and 2 are before the Court on motions for summary judgment distinguishes them from Gomes v. Collins, 21 LCR 67 (2013), a case decided after a case-stated proceeding. The evidence of abandonment in Gomes also was much stronger, and much more definitive, than what CRT has offered about Mrs. Curtis and her tower.

At any rate, the Court needn't decide whether Mrs. Curtis had abandoned the tower by 1972. That's because, after 1972, two important things happened. The first benefits CRT's position on abandonment. As of 1972, § IV.A had evolved to read, in pertinent part:

Any building or use of land or part thereof lawful and existing at the time this By-law is adopted may be continued, unless and until abandoned or changed to a conforming use, although such building or use does not conform to the provisions hereof.

The 1972 version of the By-law still didn't define "abandoned," meaning that the common-law test still controlled. Six years later, however, the town recodified the By-law. The recodified By-law now had a § 6.1.4. It provided:

Abandonment: Any structure or lot, in or on which a nonconforming use is superseded by a permitted use, shall thereafter conform to the regulations for the district and the nonconforming use may not thereafter be resumed. A nonconforming use or structure not used for a period of 2 years shall be deemed abandoned and shall not again be revived or such structure used except in conformity with all applicable provisions of this By-Law or any amendment thereto.

Section 6.1.4 tips the "abandonment" analysis, to the extent the By-law governs the issue, heavily in CRT's direction. Since 1975, c. 40A, § 6 has permitted municipalities, through their zoning bylaws, to "define and regulate nonconforming uses and structures abandoned or not used for a period of two years or more." (Emphasis added.) The courts have construed this provision as doing two things. First, it creates a state-wide, statutory rule, one employing the common-law test, that dictates when a structure or use is "abandoned." Second, through its "not-used-for-two-years-or-more" clause, § 6 gives municipalities the option to adopt zoning bylaws that are less forgiving than the common-law abandonment test with respect to unused structures and terminated uses. See Chiaraluce, 89 Mass. App. Ct. at 294. And where a town has adopted a zoning bylaw that employs both the "abandonment" and the "not-used-for-two-years-or-more" tests (as Manchester-By-The-Sea did, in 1978), those tests are disjunctive: failing one is as bad as failing both. See Ka-Hur Enterprises, Inc. v. Zoning Bd. of Appeals of Provincetown, 424 Mass. 404 , 406 (1997).

While Mr. Holt's testimony might not be enough to prove that Mrs. Curtis had "abandoned" the tower by 1972 under the common-law test, it may be enough to prove that by August 1980, two years after the effective date of § 6.1.4, Mrs. Curtis had "not used" the tower for more than two years. Mrs. Curtis or her estate owned the tower through May 1981, and neither party has shown any change in the (non-)use of the tower between Holt's 1972 reconnaissance mission and, at the earliest, 1984. Trustee Kavanaugh and the Board's only evidence of use of the tower between 1972 and 1984 is entirely inferential: that in order for a tower that big to survive on the Massachusetts coast, someone had to have "used" the tower, if only to maintain it. (The Trustee and the Board don't have direct proof of maintenance between 1972 and 1984. One could just as easily infer from the current record that the Greatest Generation simply built towers to last.) The Trustee and the Board also challenge CRT's interpretation of § 6.1.4: they argue that its two-year-nonuse provision applies only to nonconforming uses (and "revivals" of such uses), and that the common-law abandonment test remains the sole measure of whether a nonconforming structure has lost its protection under the By-law.

It's at this point that a second change in the law swoops in to relieve the Court from having to determine whether Mrs. Curtis, her estate, or the owner of the tower between 1981 and 1984 stopped using it at any time for more than two years. In 2016, the Legislature amended c. 40A, § 7 to insert the following paragraph:

If real property has been improved by the erection or alteration of 1 or more structures and the structures or alterations have been in existence for a period of at least 10 years and no notice of an action, suit or proceeding as to an alleged violation of this chapter or of an ordinance or by-law adopted under this chapter has been recorded in the registry of deeds for the county or district in which the real estate is located . . . within a period of 10 years from the date the structures were erected, then the structures shall be deemed, for zoning purposes, to be legally non-conforming structures subject to [c. 40A,] section 6 and any local ordinance or by-law relating to non-conforming structures.

St. 2016, c. 184, § 1. The Legislature made the new paragraph applicable "regardless of whether the structure was erected prior to or after the effective date of [the] act," November 2, 2016. Id. at § 2.

The 2016 legislation has this result: it requires the Board and this Court to deem the original tower to be, since November 2, 2016, a legally nonconforming structure under c. 40A, § 6 and the Zoning By-law, even if at some point between August 1980 and November 2, 2016 it was not. CRT argues that Cox v. Davis, 25 LCR 67 (2017), is to the contrary, but this Court finds no such holding in Cox. Instead, Cox says this about a house that was built in the 1800s, but allegedly abandoned between 2004 and 2008: "[W]hether or not protected under [c. 40A,] § 6, the house is protected under G.L. c. 40A, § 7." Cox, 25 LCR at 70. Cox rested that conclusion, in part, upon the 2016 legislation.

The 2016 legislation thus makes the original tower a legal nonconforming structure. The legislation also insulates the tower from one other potential problem. It is undisputed that in 1987, the then-owners of the former Curtis property, the Donovans, applied for and received a building permit to "enlarge windows + lower deck in existing tower." It is also undisputed that about that same time, the Donovans added two levels to the tower, and that no one challenged those additions within ten years of their construction. Since the 2016 legislation applies to not only the "erection . . . of structures" but also their "alteration," the Board and this Court must treat the 1987 improvements to the tower as lawful under c. 40A, § 6 and the Zoning By-law.

The 2016 legislation thus protects the tower and everything done to it prior to November 2, 2006, ten years before the effective date of the legislation. What about work after that date? To understand the status of that work, one needs additional undisputed facts, starting with the Donovans. They sold the former Curtis property to Donald Besser in 2009. In 2011, the Board granted Besser, under § 6.1.2 of the Zoning By-law, a special permit for an ambitious project. It included demolition of the former Curtis single-family residence, construction of a huge new house, and attachment of that house to the tower via a three-story wing.

No one appealed Besser's special permit. But after he got the permit, Besser thought better of his plans. He didn't exercise his rights under the permit, and instead he sold the Curtis property to Trustee Kavanaugh in 2014. In July 2014, she received a building permit for the "upright luxury yacht" project.

CRT claims that, even if the tower had retained as of July 2014 its status as a lawful nonconforming structure, the 2014 renovations required a special permit. Section 6.1.2 of the Zoning By-law (the provision Besser invoked in 2011) governs "Changes, Extensions and Alterations" of nonconforming structures. Section 6.1.2's requirements echo those found in c. 40A, § 6. Section 6.1.2 provides:

A nonconforming structure . . . may be changed, extended or altered, provided that in each case the Board of Appeals grants a special permit therefor after finding that such change, extension or alteration is not substantially more detrimental or injurious to the neighborhood than the existing nonconforming structure. . . .

It is undisputed that most of the 2014 renovations occurred within the tower's walls. Work inside of a lawful nonconforming structure does not require a special permit under c. 40A, § 6 unless it accompanies or produces a change in a nonconforming use of the structure. See Bjorklund v. Zoning Bd. of Appeals of Norwell, 450 Mass. 357 , 362-63 (2008). It's undisputed that the 2014 interior renovations facilitated only residential and accessory uses of the tower site. (CRT has more to say about those uses; the Court will get to them later.) It's also undisputed that the only work on the exterior of the tower consisted of modifications to its 1987-era balconies, repair of lighting fixtures, and the addition of a two-foot lightning rod to the top of the tower. Only the lightning rod "extended" the tower; the remaining work does not amount to a "change, extension or alteration" that requires a special permit under c. 40A, § 6. See Bjorklund, 450 Mass. at 362-63; Bobrowski, Handbook of Massachusetts Land Use and Planning Law at § 6.05[A][1]. As for the lightning rod, § 5.5 of the Zoning By-law allows "spires . . . not used for human occupancy" to extend as of right up to ten feet beyond the "highest point of the roof" of a structure. The lightning rod qualifies as such a "spire," and thus the 2014 renovations didn't need a special permit under § 6.1.2 of the Zoning By-law or c. 40A, § 6.

We now come to December 2016. Trustee Kavanaugh applied at that time for a "modification" of Mr. Besser's 2011 special permit, the one he'd received under § 6.1.2 for his grandiose demolition/residential-reconstruction/connect-the-tower plan. Besser's special permit was still in effect as of December 2016, thanks to the Commonwealth's Permit Extension Act. See St. 2010, c. 204, § 173; St. 2012, c. 238, §§ 73-74. Trustee Kavanaugh volunteered to cede all of her rights under the Besser permit in exchange for permission to build a 26.2-square foot, single-story corridor (the "Tower Corridor"). That corridor was proposed to extend one foot from the base of the tower to another ground-level corridor, one already built by the time the Trustee applied for modification of the 2011 special permit. The latter corridor linked the existing principal residence on the Trust's property to a newly constructed garage. The ZBA granted the requested modification in March 2017, after finding that the Tower Corridor would not be "substantially more detrimental to the neighborhood that the existing or originally- proposed construction. . . ." CRT appealed the modification (the appeal that yields Case 2), although Trustee Kavanaugh has since built the Tower Corridor, chancing that this Court will uphold the modification.

CRT doesn't question the Board's power, as a general matter, to modify special permits. Chapter 40A, § 11 twice uses the phrase "special permit, or any extension, modification or renewal thereof," in describing the procedures that apply to the granting of special permits. Chapter 40A, § 14 further gives boards of appeals the power to "make orders or decisions . . . or modify any order or decision" in connection with "applications for special permits. . . ." Chapter 40A thus allows special-permit granting authorities to modify any special permit they have issued. See also Wendy's Old Fashioned Hamburgers of New York, Inc. v. Board of Appeals of Billerica, 454 Mass. 374 , 384-85 (2009). In the absence of something in the Zoning By-laws that affirmatively deprives the Board of that power (and the By-laws are silent on the subject), this Court must conclude that the Board has the power to modify its own special permits.

Barlow v. Planning Board of Wayland, 64 Mass. App. Ct. 314 , 317-21 (2005), holds that when considering a modification request, the special-permit granting authority must comply with both the procedural requirements for the issuance of special permits and the authority's substantive standards for granting them. CRT argues that Barlow imposes a further limitation on modification requests: that when they "substantially" depart from what the authority originally approved, the applicant must file for an entirely new special permit. The Court finds no such limitation in c. 40A, the Zoning-Bylaw, Barlow, or a case that Barlow quotes, Chambers v. Building Inspector of Peabody, 40 Mass. App. Ct. 762 (1996). This Court reads the latter cases as denying permit holders the ability to evade the permit-granting authority's original discretionary powers, either by claiming that some other official or board has agreed to modify the permit (the vice in Chambers) or by asserting that the authority has no discretion to deny the modification (the vice in Barlow). By contrast, Trustee Kavanaugh made her modification request to the Board, the same authority that had granted the 2011 special permit. That Board reviewed the request under § 6.1.2 of the Zoning By-law, the same provision that the Board used when it granted the 2011 special permit. Trustee Kavanaugh thus did not need to file for a new special permit to get approval of the Tower Corridor.

Trustee Kavanaugh contends (and CRT doesn't dispute) that the Board followed all of c. 40A and the By-law's procedural requirements pertaining to special permits. It's also undisputed that the Board applied the correct By-law provision, § 6.1.2, in weighing the request. Section 6.1.2's sole criterion for issuing a special permit (and, by extension, modifying any special permit granted under § 6.1.2) is whether the proposed "change, extension or alteration [of an existing nonconforming structure] is not substantially more detrimental or injurious to the neighborhood than the existing nonconforming structure." In deciding whether a zoning board has lawfully granted a special permit (or, by extension, lawfully modified a special permit), "the court must find the facts de novo and give no weight to those the board has found." Nevertheless, "[i]n the end, the court must affirm the board's decision unless [the court] finds that denial of the application was 'based on a legally untenable ground, or [was] unreasonable, whimsical, capricious or arbitrary.'" Britton v. Zoning Board of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 72 (2003), quoting MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 639 (1970) (first two brackets added; last brackets in original).

Trustee Kavanaugh moves for summary judgment on the issue of whether the Board correctly found that the Tower Corridor would not be "substantially more detrimental or injurious to the neighborhood" than the nonconforming tower as it existed at the time the Trustee applied for the modification. Britton requires the court to find facts de novo, but Britton doesn't require a trial if those facts are undisputed. It turns out that the evidence that's pertinent to a comparison of the Tower Corridor's detriment or injury to the Smith's Point neighborhood, versus that associated with the pre-2017 tower, are undisputed: the tower's existing twelve-story nonconformity is a given, as are the dimensions of the Tower Corridor (one story high, one foot long, and 26.5 feet wide). CRT points to no other facts that are relevant to the comparison. CRT also offers no evidence that the Board considered "legally untenable grounds" in deciding to modify the 2011 special permit, or that the Board otherwise acted unreasonably, whimsically, capriciously, or arbitrarily.

The Court thus may reach on summary judgment the question of whether there are any substantive grounds to overturn the Board's decision to modify the 2011 special permit. There aren't. The Tower Corridor doesn't change the tower's existing nonconforming twelve-story height. To be sure, the corridor doesn't shrink the tower, but it also doesn't send it skyward. It also was okay for the Board to consider, as it did, that giving Trustee Kavanaugh permission to build the Tower Corridor would avoid the demolition of an existing residence, the construction of a much larger residence, and the erection of the three-story Besser wing. The Court thus must affirm the Board's modification decision.

All of this leaves CRT with just one argument: that the 2014 renovations created an illegal second "dwelling" on Trustee Kavanaugh's property. Section 4.1 of the Zoning By-law provides that in the Single Residence District,

[N]o building or land shall be used . . . for any purpose except one or more of the following:

4.1.1 A dwelling having not more than one dwelling unit.

. . .

4.1.9 Accessory use on the same lot with and customarily incident to any of the above permitted uses. . . .

Section 2.4 of the By-law defines "dwelling" as "[a] detached building designed or arranged to accommodate one or more dwelling units and separated by side yards from any other structure except accessory buildings. . . ." As of 2014, the tower was a "detached building." Hence, the 2014 renovations made the tower a "dwelling" under § 2.4 only if they were "designed or arranged to accommodate one or more dwelling units. . . ." Section 2.5 of the Bylaw defines "dwelling unit" as "[a] building or portion thereof occupied or suitable for occupancy as a residence and arranged for the use of one or more individuals living as a single housekeeping unit. . . ."

The By-law doesn't explain what constitutes "residential" occupancy or "arrange[ments] for the use of one or more individuals living as a single housekeeping unit." In its 2015 decision upholding the building inspector's refusal of CRT's request for zoning enforcement, the Board held that a structure became a "dwelling unit" under § 2.5 only if it had a separate address, a separate mailbox, and "full-kitchen facilities." A zoning board's reasonable interpretation of undefined terms in a local zoning bylaw is entitled to deference, see Wendy's, 454 Mass. at 381 (2009); Cameron v. DiVirgilio, 55 Mass. App. Ct. 24 , 29 (2002); Duteau v. Zoning Bd. of Appeals of Webster, 47 Mass. App. Ct. 664 , 669 (1999), and CRT offers no arguments that the Board's "dwelling unit" test is wrong. The Board also conditioned its 2015 decision on Trustee Kavanaugh not establishing a separate address for the tower, not giving it a separate mailbox, not renting the tower, and not using it "as a residence or dwelling." At oral argument on the parties' cross-motions for summary judgment, the Court asked whether the tower has become a "dwelling unit"; counsel for Trustee Kavanaugh contended that the tower still lacks a full kitchen, and CRT didn't dispute that assertion.

The Court thus holds that the 2014 renovations did not create a "dwelling unit" within the tower, and thus those renovations didn't create an illegal second "dwelling" on Trustee Kavanaugh's property. Instead, the uses of the tower, post-2014, as guest quarters, for storage of household items, as a home office, and for household entertainment are "accessory" and customarily incidental to the permitted use of the existing dwelling on Trustee Kavanaugh's property. See By-law, § 2.1 (defining "accessory" as a "use which is subordinate to, and the use of which is customarily incidental to, and is located on the same lot with the principal building, structure or use to which it is accessory"). Of course, this holding is limited to the facts circa 2014-2015. If circumstances have changed (for example, if the land yacht's galley is now a full kitchen), and if the Trustee hasn't received necessary approvals for those changes, the town is free to take enforcement action, and abutters like CRT are free to request enforcement action.

Because the Court holds that the 2014 renovations supported lawful accessory uses of the tower, the Court won't decide whether construction of the Tower Corridor in 2017 made the tower no longer "detached" from the Trustee's principal dwelling for purposes of § 2.4 of the By-law. And as the Court has rejected the last of CRT's attacks on the 2014 tower renovations and the 2017 modification decision, the Court will DISMISS CRT's claims in both Cases 1 and 2, on the merits. Because these dismissals are on the merits of CRT's claims, the Court won't decide whether CRT's original request for zoning enforcement was timely under c. 40A, § 7, or whether CRT has standing under c. 40A, § 17 to bring either Case 1 or Case 2. See Cox, 25 LCR at 68.

Judgments in both Case 1 and Case 2 to enter accordingly.