WILLIAM M. KENISON and LYNNE E. KENISON v. TOWN OF PEPPERELL ZONING BOARD OF APPEALS and MARK WALSH, ANNETTE R. McLEAN, JAN ADAMCZYK, and SEAN McCAFFERY, as they are Members of the TOWN OF PEPPERELL ZONING BOARD OF APPEALS, and AALERUD PROPERTIES, LLC.

Introduction

William M. and Lynne E. Kenison (the Kenisons) claim that they are aggrieved by the decision of the Pepperell Zoning Board of Appeals (ZBA) granting a special permit to Aalerud Properties, LLC (Aalerud) to operate a party supply and tent rental business on a property directly across the street from the Kenisons' home on Canal Street in Pepperell. Aalerud filed Defendant Aalerud Properties, LLC's Motion for Summary Judgment, along with supporting memorandum of law, statement of material facts, and affidavit, on August 1, 2018. The Kenisons filed Plaintiffs' Opposition and Cross-Motion for Summary Judgment with Supporting Memorandum of Law (Cross-Motion for Summary Judgment), along with support response to and statement of additional material facts, appendix, and affidavit, on September 11, 2018. Aalerud filed its opposition to the Cross-Motion for Summary Judgment on October 9, 2018.

Aalerud's Motion for Summary Judgment was directed to defeating the Kenisons' standing as persons aggrieved under G.L. c. 40A, § 17, as well as alleging that their claims were barred by the doctrine of laches. The Kenisons' Cross-Motion for Summary Judgment sought to establish their aggrievement and further sought judgment on the merits of their claim that the ZBA erred in issuing the special permit. The Motion for Summary Judgment and the Cross-Motion for Summary Judgment were heard on October 16, 2018. At the hearing, the court found that Aalerud had rebutted the Kenisons' presumption of standing, see 81 Spooner Road, LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692 , 700-701 (2012), but that there are material facts in dispute as to the Kenisons' harms based on lost property value tethered to other harms, noise, light, traffic, and aesthetic impacts. The court further found that there are material facts in dispute with respect to the merits of the special permit. The court therefore denied the Motion for Summary Judgment and the Cross-Motion for Summary Judgment with respect to those issues.

The only remaining issue was Aalerud's argument that the Kenisons' complaint is barred by the doctrine of laches. The court took that portion of Aalerud's motion under advisement, and this memorandum and order follows. As set forth below, Aalerud has no claim for laches in the circumstances of this appeal under G.L. c. 40A, § 17. Therefore, the Motion for Summary Judgment and the Cross-Motion for Summary Judgment will be denied.

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

The court recites the following facts related to Aalerud's laches claim that are undisputed.

1. Aalerud owns the property at 15 Canal Street, Pepperell, Massachusetts (Aalerud property). Twin Bros Party Rentals operates a tent and party equipment rental business at the Aalerud Property. Statement of Material Facts in Support of Aalerud Properties, LLC's Motion for Summary Judgment (Def. SOF) ¶¶ 1-3; Plaintiffs' Response to Aalerud Properties' Statement of Facts with Additional Material Facts and Appendix (Pl. SOF) ¶¶ 1-3.

2. After receiving a cease and desist order from the Town of Pepperell Building Commissioner, Aalerud appealed the cease and desist order to the ZBA. That appeal was denied. At the same time, Aalerud applied for and obtained a special permit from the ZBA for use of the property for the tent and party equipment rental business. Def. SOF ¶¶ 5-6; Pl. SOF ¶¶ 5-6, 76; Aalerud Properties, LLC's Response to Plaintiffs' Additional Material Facts and Appendix ¶ 76 (Def. SOF Resp.).

3. The Kenisons own the property at 12 Canal Street, Pepperell, Massachusetts (the Kenison property), which sits directly across Canal Street from the Aalerud property. The Kenisons have lived at the Kenison property for 29 years. Def. SOF ¶¶ 7-8, 38; Pl. SOF ¶¶ 7-8, 38, 47; Def. SOF Resp. ¶ 47.

4. The Aalerud property is in a residential zoning district. Mr. Kenison knew that the Aalerud property was zoned residential in 1989. Def. SOF ¶¶ 4, 39; Pl. SOF ¶¶ 4, 39.

5. The Aalerud property has been used for non-residential/commercial purposes since at least 1975. There were variances issued for the property in 1979 and 1982. Pl. SOF ¶ 78; Def. SOF Resp. ¶ 78.

6. Mr. Kenison knew in 1989 that a business was operating out of the Aalerud property. Def. SOF ¶ 40; Pl. SOF ¶ 40.

7. The Town of Pepperell acquired the Aalerud property in 1995. It used the property as a Water Department garage. Pl. SOF ¶ 81; Def. SOF Resp. ¶ 81.

8. The Town conveyed the Aalerud property to Gary G. Cyr and Caroline M. Cyr (the Cyrs) in 2008. The Cyrs submitted to the Town of "Notice of Intent" that stated the property would be used by a glass fabricator and insulating glass manufacturer. The Notice of Intent was approved by the Building Commissioner. Pl. SOF ¶¶ 84-85; Def. SOF Resp. ¶¶ 84-85.

9. Mr. Kenison did not go to the Building Commissioner regarding commercial use of the Aalerud property in a residential zone before 2017. Def. SOF ¶ 43; Pl. SOF ¶ 43.

Discussion

Laches is an unjustified and unreasonable delay in raising a claim that results in prejudice to the party against whom the claim is brought. Srebnick v. Lo-Law Transit Mgt., Inc., 29 Mass. App. Ct. 45 , 49 (1990); see Norton v. Chioda, 317 Mass. 317 Mass. 446, 452 (1945); Stewart v. Finkelstone, 206 Mass. 28 , 36 (1910). Laches is a defense to equitable claims, and "[as] long as there is no statute of limitations problem, unreasonable delay in pressing a legal claim does not, as a matter of substantive law, constitute laches." Srebnick, 29 Mass. App. Ct. at 49-50 (1990). To establish a laches defense, there must be proof that the delay worked some prejudice or disadvantage to the defendant. Myers v. Salin, 13 Mass. App. Ct. 127 , 138 (1982), citing Norton, 317 Mass. at 452 and Mastandrea v. Baressi, 2 Mass. App. Ct. 54 , 57 (1974). For the purposes of this motion, the court will assume that the Kenisons' complaint sounds in equity, notwithstanding that is brings a claim deriving from a statutory right. See G.L. c. 185, §§ 1(k) (Land Court has jurisdiction over "matters cognizable under the general principles of equity jurisprudence where any right, title or interest in land is involved"); 1(p) (Land Court has jurisdiction over appeals brought under G.L. c. 40A, §17). "Whether particular circumstances establish the defense of laches is a question of fact." Id.

The Kenisons correctly state that laches does not bar a municipality from enforcing its own zoning standards because error or inaction cannot forfeit the public interest in valid health, safety, and welfare provisions misapplied or unapplied by governmental officers. Cape Resort Hotels, Inc. v. Alcoholic Licensing Bd. of Falmouth, 385 Mass. 205 , 224-225 (1982); McAleer v. Board of Appeals of Barnstable, 361 Mass. 317 , 322-23 (1972). Here, however, Aalerud's laches defense concerns a dispute between private parties. "In a private dispute between landowners, in which the municipality has independently represented the public interest, no comparable policy bars one private adversary from assertion of laches against the others in circumstances in which the bar of laches would sustain the municipal determination of the public interest." Richardson v. Board of Appeals of Chilmark, 81 Mass. App. Ct. 912 , 914 n.7 (2012). The question here is whether the Kenisons ought to have challenged the previous non-residential uses of the Aalerud property in order to preserve their right to object to the current non-residential use. Other than cases illustrating the general concept of laches, Aalerud provides no support for the assertion that the Kenisons are barred from raising a claim against the non-residential use by the current owners because they did not raise one against the previous owners. Rather, Aalerud acknowledges that the Kenisons had the ability to raise a claim against new owners of the property when it contends that the Kenisons had two "distinctly ripe opportunities" to challenge the non-residential use: first, in 1995, when the property was conveyed to the town of Pepperell and then 13 years later, in 2008, when it was conveyed to the Cyrs.

The first component of a laches defense is an unreasonable and unjustified delay. Srebnick, 29 Mass. App. Ct. at 49. The zoning violation alleged by the Kenisons is the commercial use of the Aalerud property for a party supply and tent rental business as an indoor facility for the rental of equipment or goods. There was no unreasonable or unjustified delay by the Kenisons in raising a claim against Aalerud for this new use. The Kenisons timely raised their claim of zoning violation against Aalerud twice: first by submitting a request for zoning enforcement and then by filing the current appeal. Under G.L. c. 40A, § 7, the Kenisons were required to request zoning enforcement within six years of the commencement of the alleged violation; the Kenisons submitted a request for zoning enforcement to the Town of Pepperell Inspector of Buildings on March 21, 2017, just six weeks after Aalerud acquired its property and began to use it for commercial storage and shipping. Following the request for zoning enforcement, the Town then sent a cease and desist letter to Aalerud, informing it that the use of the property was not allowed and directing it to apply to the ZBA for a special permit to continue the non-allowed use. Aalerud requested an administrative appeal or, in the alternative, a special permit. Though Aalerud's administrative appeal was denied, the ZBA did grant a special permit on September 27, 2017. The Kenisons appealed this special permit within the 20 day period set by G.L. c. 40A, § 17, by filing this action on October 16, 2017. The Kenisons have not "slept on their rights" in challenging this use of the property; they acted promptly to challenge the building permit and appealed the special permit within the short 20-day window set by § 17.

That the Kenisons may have had the right to challenge previous uses of the Aalerud property does not mean that they unreasonably delayed filing this claim against Aalerud. Since the Kenisons purchased their home in 1989, each subsequent owner of the abutting Aalerud property has operated it for a different use. The Town operated a water department garage, followed by the Cyrs who operated a glass manufacturing facility. There is a factual dispute as to whether those two non-residential uses were operating without special permits and whether the non-residential uses before 1995 were based on a variance or a nonconforming use. Whether the current use of a property constitutes a lawful nonconforming use is determined by the so-called three-part Powers test: (1) whether the present use reflects the nature and use at the time when zoning by-laws took effect, (2) whether there is a difference in the quality or character, as well as the degree, of the present use, and (3) whether the current use is different in kind in its effect on the neighborhood. Powers v. Building Inspector of Barnstable, 363 Mass. 648 , 661 (1973). This test is fact-specific and turns on the particular nature of the uses in question. While the Aalerud property has been used for non-residential purposes in the past, the current use could be different enough in quality or character and in its effect on the neighborhood to constitute a new use. In fact, the ZBA did find in its special permit that "[t]here was a change to the non-conforming use requiring a Special Permit." Pl.'s Compl. ¶ 22; Def.'s Ans. ¶22. Aalerud's new use is not necessarily how the Aalerud property has previously been used, which means that the Kenisons could not have objected to it before it had begun.

Moreover, the Kenisons could not bring this action appealing Aalerud's special permit unless they were aggrieved by the ZBA's decision. G.L. 40A, § 17; Green v. Board of Appeals of Provincetown, 404 Mass. 571 , 574 (1989). This means that the alleged injury that confers standing on the Kenisons in this case must be specific to Aalerud's activities and not an injury to the community at large, or deriving from the previous non-residential uses in general. See Barvenik v. Alderman of Newton, 33 Mass. App. Ct. 129 , 132-133 (1992) (injury must be special and different from the concerns of the rest of the community). Any possible harms from previous non-residential uses would be insufficient to establish standing to appeal this special permit and are therefore irrelevant to the question of laches. The Kenisons cannot be said to have failed to bring a claim that they would not have had standing to bring. There has been no delay, unreasonable or otherwise, by the Kenisons in raising their claim against Aalerud.

The second component of a laches defense is prejudice resulting from the unreasonable delay. Srebnick, 29 Mass. App. Ct. at 49; Myers, 13 Mass. App. Ct. at 138. No prejudice can result from an unreasonable delay where, as is the case here, there has been no delay. Any prejudice resulting from Aalerud's expenditure in reliance on the previous non-residential uses of the Aalerud property arises from the town's acquiescence to those uses, not from any delay by the Kenisons to object to such uses. There is no laches defense available to Aalerud against the Kenisons' claim.

CONCLUSION

For the foregoing reasons, Defendant Aalerud Properties, LLC's Motion for Summary Judgment is DENIED and Plaintiffs' Cross-Motion for Summary Judgment is DENIED.

SO ORDERED