LOUIS C. TUSINO
ZONING BOARD OF APPEALS OF DOUGLAS & another (and a companion case).
Heard: June 3, 2016.
action commenced in the Uxbridge Division of the District
Court Department on December 8, 2014. The case was heard by
David B. Locke, J., on a motion for summary judgment.
action commenced in the Land Court Department on August 21,
2009. The case was heard by Robert B. Foster, J., on a motion
for summary judgment.
E. Shugrue for Louis C. Tusino.
J. Lane for Joseph Bylinski.
Michael J. Kennefick for building commissioner of the town of
Douglas, & another.
Present: Vuono, Wolohojian, & Blake, JJ.
two cases arise out of the construction of a house on a
nonconforming lot in Douglas. The dispositive issue on appeal
is whether we have jurisdiction over a direct appeal from a
decision of the Uxbridge District Court in a zoning appeal
under G. L. c. 40A, § 17. Concluding that we do not, we
dismiss Tusino v. Zoning Board of
Appeals of Douglas, 2015-P-1400 (zoning appeal). Because
our disposition of this case renders moot Bylinski
v. Guaranteed Builders, Inc., 14-P-1193
(mandamus appeal), we dismiss it as well.
8, 2008, Tusino obtained a building permit to build a house
on a lot he owns in Douglas. Construction began in February,
2009, and Bylinski, who owns the adjacent property,
immediately thereafter asked the building commissioner to
revoke the permit. The commissioner denied that request, and
Bylinski appealed to the zoning board (board). The appeal was
constructively allowed, and the building permit was revoked.
On appeal, the Superior Court affirmed the revocation of the
permit. Tusino did not further appeal, and the Superior
Court's decision became final.
thereafter applied to the board for a variance. This too was
denied. He appealed the denial to the Land Court, which
entered summary judgment against him. On February 21, 2014,
in a memorandum and order issued pursuant to our rule 1:28,
we affirmed the Land Court's decision and it became
final. See Guaranteed Builders, Inc. v.
Zoning Bd. of Appeals of Douglas, 85 Mass.App.Ct.
Bylinski had filed a mandamus action in the Land Court
seeking to require the building commissioner (who had refused
Bylinski's enforcement request) to order the house be
removed. It should be noted at this juncture that, despite
the successful challenge to his building permit and his
inability to obtain a variance, Tusino had continued
construction of the house. A judge of the Land Court
dismissed the mandamus action on the grounds that (a) the
commissioner's obligation to enforce the zoning bylaw is
discretionary, (b) Bylinski had an available alternate
administrative remedy in the form of an appeal to the board,
and (c) justice did not require mandamus relief. This
dismissal is the subject of the mandamus appeal currently
the dismissal of his mandamus complaint, Bylinski again
requested that the building commissioner order Tusino to
remove the house. She again refused. Bylinski appealed to the
board, which ordered that the building be demolished and
removed. Tusino then appealed that order to the Uxbridge
District Court, where summary judgment entered in
Bylinski's favor. Tusino appealed this judgment directly
to us, rather than through the Appellate Division of the
own initiative, we asked the parties, who have submitted
supplemental authority, whether we have subject matter
jurisdiction over a G. L. c. 40A zoning appeal brought
directly from the District Court. Tusino relies on
Walker v. Board of Appeals of
Harwich, 388 Mass. 42 (1983) (Walker), for the
proposition that we have subject matter jurisdiction. Tusino
is indeed correct that Walker held that appeals from
District Court determinations in cases decided under G. L. c.
40A, § 17, were to be made directly to the Appeals
Court. Id. at 50. The conclusion in Walker
rested in large part on the fact that the Appellate Division
did "not have a general grant of equity jurisdiction and
. . . actions under G. L. c. 40A, § 17, are clearly
equitable in character." Id. at 48. At the time
Walker was decided, the District Court had only
limited equity jurisdiction. See G. L. c. 218, § 19C.
Walker, however, the statutory landscape changed
with the Legislature's extension of equity jurisdiction
to the district courts. The change occurred in stages as the
district courts in the various counties became subject to the
Legislature's creation of a "one trial system."
The reform began with a pilot program in Norfolk and
Middlesex counties. St. 1996, c. 358. "The system proved
successful . . .[, and] [i]n August, 2004, the Legislature
approved the one trial system and, with certain changes, made
it applicable to all divisions of the District and Boston
Municipal Court Departments. St. 2004, c. 252."
Sperounesv.Farese, 449 Mass.
800, 803 (2007). "Because the Appellate Division is a
part of the District Court, the equitable jurisdiction