PETER TSINZO, v. THOMAS CARTER, GARY ILACQUA, DAVID PESSIA, ORLANDO DIGIAM PIETRO and ROBERT J. O'REGAN as members of the STOUGHTON ZONING BOARD OF APPEALS.

Introduction

Plaintiff Peter Tsinzo owns the property at 50 Barnes Road in Stoughton. Its house required a variance from the Zoning Board (the lot lacked sufficient frontage under the then-applicable by-law), and one of the conditions to that variance (the “1998 variance”) was a prohibition on further subdivision of the lot. [Note 1] No appeal was taken. Mr. Tsinzo has since tried to remove that condition on three occasions.

His first attempt was by application to the Zoning Board, which granted a new variance allowing a two-lot subdivision (the “2007 variance”). [Note 2] That new variance, however, was appealed to the Land Court by abutters and, at their request and without objection from Mr. Tsinzo, was annulled. Graber v. Epro, 18 LCR 18 , 19-20 (2010). This left the 1998 variance and its “no subdivision” condition in place.

Mr. Tsinzo’s second attempt was by application to the Planning Board for subdivision approval, which was granted by that board. That decision too, however, was appealed, and was reversed on the ground that the Planning Board had no authority to remove the “no subdivision” condition imposed by the Zoning Board in the 1998 variance — the operative regulation by virtue of the annulment of the 2007 variance. Graber, 18 LCR at 20.

This case concerns his third attempt. In an application to the Zoning Board, Mr. Tsinzo requested that the 1998 variance be rescinded, contending (1) it had never been recorded, and (2) for that reason, never went into effect. [Note 3] When the Board expressed uncertainty over whether it had the authority to rescind the variance in the circumstances of this case, Mr. Tsinzo (through counsel) requested that the Board obtain an opinion from Town Counsel. Under Rule 15 of the Board’s General Rules, an applicant may be required to pay the costs for a consultant, and the Board requested Mr. Tsinzo to post a $1500 retainer towards that cost. Mr. Tsinzo refused and, on instructions of his counsel, walked out of the hearing room. [Note 4] The Board then voted to dismiss his rescission request, with prejudice, for failure to prosecute. Mr. Tsinzo appealed that decision to this court.

The parties have now cross-moved for judgment on the pleadings. For the reasons set forth below Mr. Tsinzo’s motion is DENIED and the Board’s motion is ALLOWED. Mr. Tsinzo’s appeal is DISMISSED, WITH PREJUDICE.

Standard of Review

Motions for judgments on the pleadings are governed by Mass. R. Civ. P. 12(c). “A defendant’s rule 12(c) motion is actually a motion to dismiss that argues that the complaint fails to state a claim upon which relief can be granted.” Jarosz v. Palmer, 346 Mass. 526 , 529 (2002) (internal citations and quotations omitted). Thus, in ruling on the motion, the factual allegations of the complaint, as well as all reasonable inferences that may be drawn from those allegations, are taken as true. See Marram v. Kobrick Offshore Fund, Ltd., 442 Mass. 43 , 45 (2004); Fairneny v. Savogran Co., 422 Mass. 4699 , 470 (1996); Eyal v. Helen Broadcasting Corp., 411 Mass. 426 , 429 (1991). Documents either attached to or referenced in the complaint may also be considered, as well as facts and documents of which judicial notice may be taken. [Note 5] The court then “looks beyond the conclusory allegations in the complaint and focuses on whether the factual allegations plausibly suggest an entitlement to relief.” Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674 , 676 (2011) (internal citations and quotations omitted).

The facts recited above and in the discussion section below are in accordance with that standard. Discussion

Mr. Tsinzo contends that the Board’s denial of his application for rescission of the 1998 variance was arbitrary and capricious because its request for a consultant fee was criminal extortion under G.L. c. 265, §25 and bribery under G.L. c. 271, §39. He also seeks an affirmative judgment declaring the 1998 variance void because it was never recorded. I find no merit in either argument.

The Challenge to the Validity of the 1998 Variance

The Supreme Judicial Court’s recent decision in Grady v. Zoning Board of Appeals of Peabody, supra holds that the failure timely to record a variance does not automatically make it ineffective or cause it to lapse. “Substantial reliance” and an absence of prejudice to those who challenge it can suffice to uphold it. Id. Such reliance and absence of prejudice may well exist here. But I need not and do not decide these issues because Mr. Tsinzo’s challenge to the 1998 variance is clearly barred by issue preclusion.

“To defend successfully on the ground of issue preclusion, the defendant must establish that the issue of fact sought to be foreclosed actually was litigated and determined in a prior action between the parties or their privies, and that the determination was essential to the decision in the prior action.” Heacock v. Heacock, 402 Mass. 21 , 25 (1988). The present case satisfies all of these requirements. The Land Court (Trombly, J.) previously held that the 1998 variance existed and remained in effect. See Graber, 18 LCR at 20 (“I rule that the condition of the 1998 Variance is binding on the Planning Board”). Both Mr. Tsinzo and the Board were parties to that case, and its holding that the 1998 variance had binding effect was essential to the judgment. In the present case, Mr. Tsinzo claims that the 1998 variance is invalid because it was not properly recorded. This is simply a new legal theory and, under the principles of res judicata, parties may not re-argue the same claim based on different legal theories in subsequent litigation. Heacock, 402 Mass. at 23. Mr. Tsinzo’s challenge to the validity of the 1998 variance thus fails.

The Challenge to the Fee Requirement

Mr. Tsinzo’s second claim — that the Board’s decision to reject his application because he refused to pay the required consultant’s fee was invalid and/or arbitrary and capricious — also fails. Even though framed as an allegation of criminal conduct, it is more properly understood as a challenge to the validity and application of a Zoning Board rule and I construe it as such. See Mass. R. Civ. P. 8(f) (“All pleadings shall be so construed as to do substantial justice.”). The Board required that Mr. Tsinzo pay a fee to the town, not to themselves personally, so that it could engage Town Counsel pursuant to G.L. c.44, § 53G. There is nothing in the record suggesting that this requirement was criminal in nature. Accordingly, the court’s inquiry focuses on its validity.

A zoning board of appeals may require that an applicant pay a reasonable fee into escrow so that it may engage outside consultation. G.L. c.44, § 53G. If an applicant refuses to pay the required fee, then the Zoning Board may deny relief for that reason alone. See General Rules of the Zoning Board of Appeals at 6. By law, the Board must allow applicants to make an administrative appeal of its selection of an outside consultant. G.L. c.44, § 53G . However, the grounds for appeal are limited to the consultant being unqualified or having a conflict of interest. Id.

On March 17, 2011, Mr. Tsinzo assented to the selection of Town Counsel as an outside consultant. On April 7, 2011, the Zoning Board informed Mr. Tsinzo that it had not conferred with Town Counsel because he had not paid the required fee. Mr. Tsinzo then refused to pay and left the meeting without presenting his application for relief. Mr. Tsinzo and his attorney, Mr. Wainwright, never argued that Town Counsel might have a conflict of interest or was unqualified to give the requested opinion. They never argued that a $1500 retainer, refundable to the extent not used, was an unreasonable fee. Accordingly, the Board denied the requested relief for failure to prosecute. See Decision on Petition of Peter Tsinzo (“Petitioner was requested to post a $1,500 retainer for the Board to obtain a legal opinion, with any unused portion of the retainer to be refunded. The Petitioner’s counsel refused, and then instructed the petitioner to walk out of the hearing room with him. Accordingly, on April 26, 2011 it was VOTED UNANIMOUSLY to adopt this decision dismissing the application with prejudice”) (emphasis included). The Board’s General Rule on consultants’ fees is expressly authorized by G.L. c. 44, §53G and valid thereunder. Because the Board gave Mr. Tsinzo an opportunity to appeal the selection of Town Counsel as a consultant, it followed its General Rules at all times and validly denied Mr. Tsinzo’s application for failure to prosecute.

Conclusion

For the foregoing reasons, Mr. Tsinzo’s complaint and all claims therein are DISMISSED IN THEIR ENTIRETY, WITH PREJUDICE.

Judgment shall enter accordingly.

SO ORDERED.