JAMES D. WALL, Plaintiff, v. IRENEUSZ GORALCZYK a/k/a JERRY GORALCZYK, Building Inspector for the Town of Montgomery, JACOB CHAPMAN, DONALD WASHBURN, and MICHAEL MORRISSEY, as the Town of Montgomery Board of Selectmen, KEVIN LaFRENIERE, and HEART AND HOME REALTY, LLC, as Trustee for 46 New State Road Land Trust, Defendants

Procedural History

James D. Wall (Wall) filed the Complaint on December 10, 2019. The defendants Ireneusz Goralczyk a/k/a Jerry Goralczyk, Building Inspector for the Town of Montgomery (Building Inspector), and Jacob Chapman, Donald Washburn, and Michael Morrissey, as the Town of Montgomery Board of Selectmen (Board) (together, the Town) filed the Answer of the Town on January 22, 2020. Defendant Heart and Home Realty, LLC, as Trustee for 46 New State Road Land Trust (H&H) filed its Answer on January 27, 2020. The case management conference was held on February 24, 2020. Defendant Kevin LaFreniere filed his Answer on August 17, 2020.

On September 28, 2020, Wall filed Plaintiff's Motion to Strike/Dismiss Certain Portions of Defendant, Kevin J. LaFreniere's Answer (Motion to Strike), Plaintiff's Motion for Partial Summary Judgment Affirming the Decision/Order of the Zoning Board of Appeals and Selectboard and Granting Equitable Relief Enforcing Such Pursuant to Mass. Rules of Civil Procedure 56 (Motion for Summary Judgment), Plaintiff's Statement of Issues, Legal Elements and Argument, Statement of Undisputed Material Facts (Facts), Appendix of Cited Material (App.), and the Affidavit of James D. Wall (Wall Aff.). On October 27, 2020, H&H filed the Motion to Dismiss by Defendant Heart & Home Realty, LLC, Trustee (Motion to Dismiss) and the Supporting Memorandum for Motion to Dismiss by Defendant Heart & Home Realty, LLC, Trustee. On October 28, 2020, the Town filed Town of Montgomery's Opposition and Cross Motion for Summary Judgment (Cross-Motion for Summary Judgment), Town of Montgomery's Response to Plaintiff's Statement of Undisputed Material Facts (Def. Resp.), Town of Montgomery's Memorandum of Law in Support of Opposition and Cross-Motion for Summary Judgment, and Town of Montgomery's Joinder in Heart and Home Realty, LLC's Motion to Dismiss. On November 12, 2020, Wall filed Plaintiff's Motion for Leave to Amend Prayers for Relief in Complaint (Motion to Amend) and Plaintiff's Reply Brief to Defendant, Heart and Home Realty, LLC, as Trustee for 46 New State Road Land Trust, and Town of Montgomery. Hearing was held on the motions and on November 13, 2020, and the motions were taken under advisement. This Memorandum and Order follows.

Summary Judgment Standard

Summary judgment may be entered if the "pleadings, depositions, answers to interrogatories, and responses to requests for admission . . . together with the affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Mass. R. Civ. P. 56(c). In viewing the factual record presented as part of the motion, the court is to draw "all logically permissible inferences" from the facts in favor of the non-moving party. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). "Summary judgment is appropriate when, 'viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.'" Regis College v. Town of Weston, 462 Mass. 280 , 284 (2012), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991). Where the non-moving party bears the burden of proof, the "burden on the moving party may be discharged by showing that there is an absence of evidence to support the non-moving party's case." Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 711 (1991), citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see Regis College, 462 Mass. at 291-292.

Facts

The following facts are undisputed.

1. Wall owns and resides at the property at 50 New State Road, Montgomery, Hampden County, MA (Wall property). Facts ¶ 1; Resp. ¶ 1.

2. H&H owns the property at 46 New State Road, Montgomery, Hampden County, MA (H&H property). LaFreniere leases the H&H property. The Wall property and the H&H property abut each other. Facts ¶ 2; Resp. ¶ 2.

3. By a letter to the Building Inspector dated January 7, 2019, Wall made a demand for zoning enforcement. Wall asked the Building Inspector to order LaFreniere to cease and desist from keeping pigs, chickens, a rooster, and turkeys on the H&H property. Facts ¶ 2; Resp. ¶ 2.

4. On April 18, 2019, the Board issued a cease and desist letter to LaFreniere, ordering him to immediately remove the pigs from the H&H property. Facts ¶ 3; Resp. ¶ 3; App. Exh. 2.

5. On May 1, 2019, Wall appealed to the Montgomery Zoning Board of Appeals (ZBA) the portion of the April 18, 2019 cease and desist letter that failed to address and order removal of the chickens, rooster, and turkeys from the H&H property (May 2019 appeal) Facts ¶ 6; Resp. ¶ 6; App. Exh. 3.

6. The ZBA failed to act on the May 2019 appeal within the time limit set by G.L. c. 40A, § 15. Wall filed a notice of constructive approval with the Montgomery Town Clerk (clerk) on August 15, 2019. Facts ¶ 7; Resp. ¶ 7; App. Exh. 4.

7. The clerk issued a Certificate of Approval on October 3, 2019 (constructive approval). Facts ¶ 8; Resp. ¶ 8; App. Exh. 5.

8. On October 24, 2019, counsel for Wall sent a letter to the Board and the Building Inspector (the October 2019 letter). In the October 2019 letter, counsel for Wall recited the history set forth above, and stated that the Certificate of Approval "means the demand that 'all chickens, roosters, and turkeys (approximately 50 chickens, 1 rooster, and 24 turkeys) be removed and that only such a number as are accessory to single family residential uses be allowed' must be enforced by either" the Building Inspector or the Board. Counsel for Wall stated that "Mr. Wall expects you to enforce such within a reasonable time. In the event you have not initiated enforcement proceedings, Mr. Wall hereby gives notice that he inten[d]s to file a Court action and order to compel you to enforce such if not initiate within twenty-one (21) days." Facts ¶ 9; Resp. ¶ 9; App. Exh. 6.

9. Neither the Board nor the Building Inspector replied to the October 2019 letter. Wall Aff. ¶ 5.

10. Wall brought the complaint in this action on December 10, 2019. Complaint.

Discussion

Wall seeks to amend the Complaint to add prayers for relief. Specifically, he seeks to add a prayer seeking an order that the Building Inspector respond to the October 2019 letter. Rule 15 provides that leave to amend "shall be freely give when justice so requires." Mass. R. Civ. P. 15(a). The Motion to Amend is ALLOWED. The court will consider the Motion for Summary Judgment, the Motion to Dismiss, and the Cross-Motion for Summary Judgment as applying to the Complaint as amended.

There is no dispute that the constructive approval is final. Therefore, the May 2019 appeal was successful, and there is a pending ZBA order that all chickens, roosters, and turkeys (approximately 50 chickens, 1 rooster, and 24 turkeys) be removed from the H&H property and that only such a number as are accessory to single family residential uses be allowed on the property. Wall seeks essentially two forms of relief. First, he wants the constructive approval enforced, either by an order of mandamus or an order that the Building Inspector respond to the October 2019 letter. Second, he has brought a nuisance claim against H&H and LaFreniere, and seeks a judgment abating the nuisance.

It is questionable whether a direct order of mandamus is appropriate. In Bylinski v. Building Comm'r of Douglas, No. 18-P-450, 2020 WL 1969933, 97 Mass. App. Ct. 1113 (Apr. 24, 2020) (unpublished decision), the Appeals Court addressed a similar situation, in which there was an apparently final order from the zoning board of appeals for a tear-down of a nonconforming structure. The neighboring landowner sought and obtained a judgment ordering the tear down. Id. at *1-*2. The Appeals Court reversed, finding that there was no individual cause of action to enforce a zoning bylaw, but only an administrative remedy for enforcement, and that mandamus was not available without exhausting administrative remedies. Id. at *7-*8, citing Hingham v. Department of Housing & Community Dev., 451 Mass. 501 , 505 (2008).

In light of this analysis, the court finds that the relief Wall has requested in his amended complaint is the appropriate one: an order that the Building Inspector respond to the October 2019 letter. Judgment shall enter deeming the October 2019 letter a request for enforcement to the Building Inspector pursuant to G.L. c. 40A, § 7. Given the unusual nature of this judgment and issues created by the COVID-19 pandemic, the Building Inspector shall be given 30 days to respond instead of the 14 days provided in § 7. The remainder of the claims for mandamus or other orders for enforcement shall be dismissed without prejudice.

This leaves Wall's nuisance claim against LaFreniere and H&H. Were the zoning enforcement claims to remain in this action, there might be an argument that the nuisance claims are ancillary under the principles of Ritter v. Bergmann, 72 Mass. App. Ct. 296 (2008), although that case is more narrowly addressed to the right to seek damages in claims that are otherwise within the court's subject matter jurisdiction. See id. at 301. The zoning enforcement claims having been dismissed or resolved, however, the court has no jurisdiction over a stand-alone nuisance action. A nuisance claim does not, standing alone, involve a claim "cognizable under the general principles of equity jurisprudence where any right, title or interest in land is involved." G.L. c. 185, § 1(k). "Dismissals for lack of subject matter jurisdiction are ordinarily without prejudice because dismissal for lack of jurisdiction is typically not an adjudication on the merits." Abate v. Fremont Inv. & Loan, 470 Mass. 821 , 836 (2015), citing Bevilacqua v. Rodriguez, 460 Mass. 762 , 780 (2011). Wall's nuisance claim shall be dismissed without prejudice.

Conclusion

For the foregoing reasons, the Motion to Amend is ALLOWED. The Motion for Summary Judgment, the Motion to Dismiss, and the Cross-Motion for Summary Judgment are each ALLOWED IN PART AND DENIED IN PART. Judgment shall enter (a) deeming the October 2019 letter as an enforcement request to the Building Inspector pursuant to G.L. c. 40A, § 7, and ordering the Building Inspector to respond to the request withing 30 days of the date of judgment, and (b) dismissing all other claims of the amended complaint without prejudice. [Note 1]

SO ORDERED