THOMAS RUBLE, in his capacity as, BUILDING COMMISSIONER and ZONING ENFORCEMENT OFFICER of the TOWN OF ROCKLAND; and TOWN OF ROCKLAND vs. ROBERT DELPRETE

I. INTRODUCTION

This matter came on to be heard on the complaint for contempt filed by plaintiffs Thomas Ruble, in his capacity as Building Commissioner and Zoning Enforcement Officer of the Town of Rockland, and the Town of Rockland's ("Ruble" or "Town"). In the complaint for contempt, plaintiffs contend that defendant Robert DelPrete ("DelPrete") failed to comply with the Agreement for Judgment entered into by DelPrete and the plaintiffs to resolve this zoning enforcement action. The Agreement for Judgment was approved by the court in this case on September 25, 2017; in it, DelPrete agreed to, among other things, complete the demolition of his home located at 320 Concord Street, Rockland, Plymouth County, Massachusetts, not later than June 20, 2018. Plaintiffs, in the complaint for contempt, asks the court to adjudicate DelPrete to be in contempt and to compel DelPrete to comply with the terms of the Agreement for Judgment by demolishing the home.

Plaintiffs filed the complaint for contempt on July 9, 2018, and the court, at my direction (see Mass. R. Civ. P. 65.3(d)), issued on July 16, 2018, a summons requiring DelPrete to appear for a hearing on the complaint for contempt. On July 26, 2018, I held an initial hearing on the complaint for contempt. Following that hearing, I ordered the parties to submit a further report to provide the court with the parties' positions on whether there had been progress towards achieving compliance with the Agreement for Judgment. I held an evidentiary hearing on the complaint for contempt on September 24, 2018. A stenographer was present to transcribe the proceedings. I then invited post-hearing memoranda, proposed findings of facts, and proposed rulings of law. After those were submitted, on March 13, 2019, the parties appeared for closing arguments at which all parties were represented by counsel.

II. FACTS

Based on the submissions of the parties, their admissions, the relevant uncontested facts, the testimony and other evidence introduced at the hearing I held, and the inferences I draw from the foregoing, I find and rule as follows:

1. Robert DelPrete is the owner of the improved parcel of land located at 320 Concord Street, Rockland, Plymouth County, Massachusetts.

2. In prior proceedings in this court, see DelPrete v. Ruble, 12 MISC 458553, 21 LCR 320 (2013), the erection and maintenance by DelPrete of the residential structure on the property was determined to be unlawful under the Town's zoning laws. Following review by the Appeals Court, DelPrete v. Zoning Bd. of Appeals of Rockland, 87 Mass. App. Ct. 1104 (2015), this court after trial directed the municipality to take all appropriate action in light of the final judgment in that case, authorizing the Zoning Enforcement Officer to issue appropriate orders to achieve compliance with the Town's zoning laws, and determining that "balancing the factors that may enter into such a calculus, there are not present in the facts of this case as tried to the court sufficient grounds to require a judge to impose an equitable alternative to a tear-down order, should a lawful, final order for demolition be issued by the local officials and then be reviewed on judicial appeal, including following administrative appeal in the Town, if taken. The officials in the Town may, if they determine it to be a lawful and appropriate result, order a remedy or remedies for the zoning violations at the Property that include physical alteration or demolition of the structure there, but, notwithstanding the preceding sentence of [the court's] Judgment, the officials in the Town are in no manner ordered or obliged to do so. They, after necessary deliberation, may proceed with enforcement as the law, and the discretion they enjoy under it, lead them to act. ..." Judgment entered April 6, 2016 pursuant to the court's decision of that same date, 24 LCR 160 (2016). DelPrete noticed an appeal to the Appeals Court from that Judgment, but did not pursue the appeal, and the Judgment is a final one.

3. On January 17, 2017, Ruble and the Town of Rockland filed the current action pursuant to G. L. c. 40A, §7, to enforce the local zoning law and to compel the removal of the residential structure constructed in violation of the Rockland Zoning Bylaws, and which the Town had ordered removed - - in orders not timely appealed by DelPrete.

4. DelPrete and the municipal parties engaged in mediation at the urging of the court. A mediation unfolded over the course of several months, overseen by mediator retired Appeals Court Associate Justice David A. Mills, and culminating in the signing of an Agreement for Judgment dated September 20, 2017. On September 20, 2017, Ruble and DelPrete filed with the court their Agreement for Judgment in which DelPrete agreed, among other things, to complete the demolition of the home on the Property not later than June 20, 2018.

5. DelPrete also agreed, following demolition, to restore the site to grade not later than June 20, 2018.

6. The court, acting pursuant to Land Court Rule 10, by order entered September 25, 2017, approved the parties' Agreement for Judgment, closing the case; the Agreement for Judgment accordingly constitutes the judgment of the court in this case.

7. DelPrete has a medical history of seizures which has required him to undergo surgeries and rehabilitation. He has had a series of medical procedures and surgical interventions to attempt to treat and control his seizure disorder, including in November, 2017 the placement of electrodes in the brain, and neurosurgery in February, 2018 that included removal of a portion of his left temporal lobe. The court was not presented with direct expert medical evidence of the nature and scope of these conditions, the outcome of the procedures to address them, and the current prognosis for DelPrete in dealing with his seizure disorders. Nevertheless, I am convinced, based on the undisputed history of the extensive interventional treatment and procedures DelPrete has undergone, that these seizures are of legitimate medical origin and present a serious medical condition which limits, at least to some material degree, DelPrete's neurological function, and causes some impairment of his memory and thought-processing.

8. A component of DelPrete's rehabilitation includes activities such as riding a bicycle, mowing the law, and sweeping. He is prohibited from doing work such as climbing ladders, digging holes, and climbing on roofs. In general, I conclude, based on the limited evidence I received on this score, that DelPrete is capable of a significant degree of independent mobility and activity, but is restricted in performing certain more demanding and intensive physical tasks and activities.

9. As a result of a workplace injury, DelPrete has also been out of work since October, 2016. DelPrete began collecting worker's compensation payments, but those have stopped.

10. DelPrete's income consists of approximately $1,200.00 per month in social security benefits. I did not receive credible evidence that he currently has regular, reliable, tangible income beyond these benefits.

11. In May, 2018, DelPrete received a disbursement from the DelPrete Family Living Trust for approximately $4,334.00.

12. Despite the orders entered at the municipal level, which were not timely appealed or challenged, and notwithstanding the Agreement for Judgment to which DelPrete voluntarily agreed, the house located at the Property has not been demolished.

III. DISCUSSION

I incorporate into this decision the Agreement for Judgment approved by the court on September 25, 2017. In that agreement, the parties agreed that DelPrete was "to complete the demolition of the home not later than June 20, 2018 . . . [f]ollowing the demolition of the home the site shall be restored to grade and this work shall be completed also by June 20, 2018." See Agreement for Judgment ¶¶ 3, 5, Sep. 20, 2017 (emphasis in original). In his answer to the complaint for contempt, DelPrete states that due to "[his] declining health . . . this has left him destitute and unable to pay someone to tear the house down and he is physically unable to do the work himself."

To prevail on a complaint for contempt, a complainant must show that there was a "clear and unequivocal command and an equally clear and undoubted disobedience." Demoulas v. Demoulas, 424 Mass. 501 , 565 (1997) citing United Factory Outlet, Inc. v. Jay's Stores, Inc., 361 Mass. 35 , 36-7 (1972) See also, Oakham Sand & Gravel Corp. v. Town of Oakham, 54 Mass. App. Ct. 80 , 86 (2002); Sax v. Sax, 53 Mass. App. Ct. 765 , 771 (2002). Civil contempt requires a clear and undoubted disobedience of a clear and unequivocal command, and must be proved by clear and convincing evidence. In re Birchall, 454 Mass. 837 , 852-853 (2009). "Civil contempt proceedings are 'remedial and coercive,' intended to achieve compliance with the court's orders for the benefit of the complainant." Furtado v. Furtado, 380 Mass. 137 , 141 (1980) citing Cherry v. Cherry, 253 Mass. 172 , 174 (1925).

An agreement for judgment, agreed to by the parties, approved by the court, and entered onto the docket of the court, is a judgment of the court. Land Court Rule 10. "[W]hen any party files an agreement for judgment . . . the agreement . . . shall, upon being filed, constitute the judgment, for all purposes . . ." Mass. R. Civ. P. 58 (a). An agreement is effective upon entry on the docket of the court. Id.; Mass. R. Civ. P. 79 (a). The Agreement for Judgment in this case was signed by the parties, approved by the court in accordance with Rule 10 of the Land Court Rules, and entered on the docket. It has the force of a judgment of the court.

I find that the language incorporated into the parties' Agreement for Judgment was clear and unequivocal. DelPrete bound himself to complete demolition of the home by June 20, 2018. I find that plaintiffs have met the burden of showing a clear and unequivocal command. This has been proved by evidence that is clear and convincing.

I next turn to the remaining element of proof of contempt: "an equally clear and undoubted disobedience." Demoulas, 424 Mass at 565. It is undisputed that DelPrete has not demolished the house to date, nor has DelPrete engaged a third-party to demolish the house for him. He has not applied for or obtained the required and agreed demolition permit. However, DelPrete raises the defense of impossibility, citing his lack of financial resources and declining health. Def.'s Answer at 2, Aug. 10, 2018.

"Noncompliance with a court order may be excused where compliance becomes impossible," Commonwealth v. One 1987 Ford Econoline Van, 413 Mass. 407 , 412 (1992), although the defense of impossibility is unavailing where an alleged contemnor is responsible for his inability to comply. Allen v. School Comm. of Boston, 400 Mass. 193 , 195 (1987), citing United States v. Asay, 614 F.2d 655, 660 (9th Cir.1980) (defendant who relinquished possession of summoned documents properly subject to contempt sanctions). The burden of proving impossibility lies with the alleged contemnor and would require, at a minimum, that the defendant present evidence that he was "reasonably diligent and energetic in attempting to accomplish what was ordered." Commonwealth v. One 1987 Ford Econoline Van, 413 Mass. at 412, quoting from Ricci v. Okin, 537 F.Supp. 817, 824 (D. Mass.1982).

Although not binding as a matter of precedent, I am guided by what a panel of the Appeals Court in a Rule 1:28 Memorandum and Order has noted: "at least one Federal Court of Appeals has stated the burden as follows: 'To show that compliance is presently impossible, the defendant... must demonstrate: "(1) that they were unable to comply, explaining why categorically and in detail, (2) that their inability to comply was not self-induced, and (3) that they made in good faith all reasonable efforts to comply."'" DeSantis v. DeSantis, Mass. App. Ct., No. 97-P-140, at n.4 (Dec. 12, 2001); citing United States v. Santee Sioux Tribe of Nebraska, 254 F.3d 728, 736 (8th Cir. 2001).

I do not discount that DelPrete is suffering from a serious medical condition (seizures and epilepsy) and that his ability to exert himself and be physically mobile is limited to some material degree as well. I conclude that as a result of these conditions, DelPrete is unable to perform the work of demolition himself. Even if DelPrete were not suffering from these conditions, and notwithstanding the fact that DelPrete was previously employed in the construction industry, I would not expect an individual to possess the knowledge, expertise, and physical capacity to tear down a single family home safely by himself. I also find credible the DelPretes' testimony that their income is comprised of only social security benefits in the amount of $1,200 per month.

I do not find in the evidence I credit any real basis to show me that DelPrete possesses sufficient funds of his own to cause the house's demolition to be performed properly by licensed contractors. If he has a reservoir of money that he has kept hidden, there was no proof of it at the trial I conducted. I conclude that there has not been proof that DelPrete has the funds it will take to have the demolition accomplished (which, though not proved with precision to me, I conclude would require approximately $25,000, at a minimum).

This begs the question why DelPrete, lacking the needed money, entered into the Agreement for Judgment - - in which he undertook unconditionally to have the demolition done. I accept that at the time he entered into the Agreement for Judgment, DelPrete thought he would be inheriting funds, and he contemplated that if he inherited the funds would he be financially in a position to pay contractors to fulfill his obligation to tear down the house. When asked about why he signed the agreement, DelPrete stated: "it was more important to just sign it and if I inherited funds, as Mrs. Brigham has stated, I would have thrown it down, but I don't have the funds, far from it." Tr. 76:15-18, Sept. 24, 2018.

I find that DelPrete only intended to comply with the Agreement if he inherited this unspecified sum of money. But this was a limitation on his performance of the Agreement that he kept to himself. There is nothing in the evidence I credit to indicate that DelPrete did anything to make this vital condition precedent to his performance known to the municipal officials and counsel with whom he struck the deal during the course of the mediation. They were assured by the Agreement for Judgment that DelPrete signed and filed with the court that he was willing to see the demolition through, and they reasonably would have accepted that he possessed the ability to do what he formally had committed to do. Nothing signaled to the Town that DelPrete was going to be unable to carry out the demolition.

I have difficulty concluding that, even with the receipt of sufficient inherited funds, DelPrete would have made good on his undertaking to demolish the structure and bring his lot into compliance. I do not find that he would have used the funds he had hoped to inherit to hire a third-party to tear down the structure. When presented with a lump sum check in the amount of approximately $4,344 (an amount far less than he hoped to receive, and far less than necessary to bring about the demolition) Delprete did not use that amount to aid with carrying out the demolition. Instead, he gave much of these funds to his daughter to help with college, and retained the balance. Id. at 67:1-68:25; 90.

The structure at 320 Concord Street has stood for a long time following the final determination that it violates the zoning law of the Town. It has been standing for years after orders that it be demolished. The municipality's demolition orders followed multiple unsuccessful efforts by DelPrete to resolve the lot's dimensional shortcomings. He exhausted all alternatives to demolition, and the court, after trial, determined that the municipality was well within its rights, if it chose to do so, to insist that the building be razed. The Town required that that happen years ago. This action for enforcement has been pending for some time. When he undertook in the Agreement for Judgment to tear down his structure, the enforcement action already had been pending for nine months, and the Town consented in the Agreement to a further nine months passing before the demolition was to be complete. The Town is entitled to have the remedy it chose - to have the building DelPrete built on his undersized lot torn down.

The challenge is how to accomplish what the Town is entitled to have accomplished. Without doubt, DelPrete is bound by the obligation into which he entered freely and voluntarily. I find and rule, based on clear and convincing evidence, that DelPrete behaved contemptuously. He has clearly and undoubtedly disobeyed a clear and unequivocal judgment of this court. I will direct entry of a judgment finding DelPrete in contempt.

I cannot, however, order DelPrete to perform an action that he lacks the physical and financial ability to carry out. Because I am convinced that he lacks sufficient funds to engage professional contractors to cause the demolition to take place, and I also am sure that he cannot physically or practically demolish the house himself, another way needs to be found to achieve the required legal outcome and have the Town's demolition order carried out. I will allow the Town, if it so chooses, and upon adequate notice, to enter onto the property and complete the demolition itself - - or by using contractors to be paid for by the Town. The Town, if it elects, may incur the costs of a lawful, safe, and proper demolition of the house on the Property, and of its restoration to a safe and lawful condition after that demolition.

Ultimately, the financial responsibility for this work, even though to be borne in the first instance by the Town, will rest with DelPrete. If the Town proceeds in this fashion, and incurs reasonable costs in connection with the demolition of the structure and the restoration of the lot, the Town may apply to this court for an order directing payment of that amount by DelPrete to the Town, and an execution for the aggregate amount of those reasonable costs actually incurred by the Town will issue. The Town may proceed to levy and otherwise collect on that execution in any lawful manner. In this fashion, the demolition that the Town wishes to see carried out will be carried out, and the ultimate responsibility for the needed costs of the demolition will be assigned to DelPrete, to pay to the Town when and as he legally is required to do so. The Town may apply to the court for appropriate orders (including, if indicated, orders and execution for possession) if and as necessary to cause DelPrete and any others resident in the house on the Property to vacate the house, and to remove or abandon personal property kept there--should DelPrete not cause the house to be vacated upon reasonable advance order from the Town to do so. The Town also may apply to the court for an order that the amount DelPrete is to pay to the Town include the reasonable value of the attorney's fees the Town incurs in this proceeding for contempt.

Judgment to issue accordingly on the complaint for contempt.