Heard: November 5, 2018.
action commenced in the Superior Court Department on April
transfer to the Land Court Department, a motion to dismiss
was heard by Howard P. Speicher, J.
J. Shapiro for the plaintiffs.
Jonathan M. Silverstein for zoning board of appeals of Truro.
Jonathan W. Fitch (Lester J. Murphy, Jr., also present) for
Benjamin E. Zehnder.
Present: Milkey, Henry, & Englander, JJ.
us now is yet another chapter in the saga of a residence in
Truro (town) known as the "Kline house" (house). In
2011, we held that the building permit pursuant to which the
house was built was invalid, and we remanded the case for
further proceedings. Schiffenhaus v.
Kline, 79 Mass.App.Ct. 600, 604-606 (2011). Town
officials subsequently ordered that the house be removed.
Meanwhile, the private parties who had brought the action
challenging the building permit dropped their opposition to
the house after they reached a settlement agreement with the
house's current owners. Eventually, town officials also
settled with the current owners, and an agreement for
judgment approved by a Land Court judge allowed the house to
remain. This spurred various individuals who were not parties
to the earlier rounds of litigation (or the settlements that
flowed from them) to bring the current action seeking to have
the house torn down. The question we face is whether it is
too late for these plaintiffs to pursue such relief, as the
Land Court judge concluded. For the reasons that follow, we
affirm the judgment dismissing the case, albeit on a
different ground from the one on which the judge principally
The 2008 building permit.
center of this case is a 9.11-acre parcel overlooking Cape
Cod Bay. The parcel was owned by a nominee trust of which
Donald Kline was the beneficiary. Kline died during the
course of the litigation, which was continued by the trustee
of the trust who already was named as a nominal defendant.
For ease of reference, we refer to Kline and the trustee
interchangeably as the "original owner."
2008, there was a modest, cottage-style residence on the
parcel that qualified as a preexisting nonconforming
structure. Under the applicable zoning bylaw, further
development of the parcel was constrained by the narrow width
of the existing town road that provided the parcel's
frontage. Nevertheless, the original owner sought to
construct a grand new residence there. His specific plan was
to convert the existing cottage into a studio, and to
construct a new 6, 800 square foot structure some 200 feet
away. This proposal was put forth as a mere
"alteration" of the existing cottage (a preexisting
nonconforming structure) that would not increase the
nonconforming nature of that structure. The town building
commissioner approved the proposal on that basis and issued a
building permit. His interpretation of the term
"alteration" with such promiscuity apparently was
consistent with the town's long-standing application of
its zoning bylaw, albeit this time on a particularly
audacious scale. See Schiffenhaus, 79 Mass.App.Ct.
at 605 n.7 (noting that town counsel had represented
"that in nineteen years, without exception, [the town]
had never determined that a change [to an existing
nonconforming structure] did not qualify as an
The Schiffenhaus litigation.
of individuals appealed from the issuance of the building
permit to the zoning board of appeals (board). That group
included all but one of the current plaintiffs, as well as
four other individuals (Schiffenhaus parties). After the
board affirmed the issuance of the building permit, the
Schiffenhaus parties continued the fight by filing an appeal
from the board's decision in the Land Court pursuant to
G. L. c. 40A, § 17. The current plaintiffs did not join
that litigation. Undeterred by the filing of the Land Court
action, the original owner began constructing the house by
October 23, 2008, at which point the Land Court judge warned
him that he was proceeding at his own risk.
2010, the judge ruled that the board acted within its
authority when it concluded that the new house could be
considered an alteration of the existing structure that
remained. However, the judge also concluded that the board
erred in determining that the construction of the house would
not increase the existing nonconformity. He therefore vacated
the board's decision and remanded the matter to the board
to consider whether the original owner's proposal would
be "substantially more detrimental to the neighborhood
than the existing nonconforming use or structure." The
original owner appealed from the judgment to our court.
Meanwhile, in February of 2011, the original owner secured a
certificate of use and occupancy for the then-completed
26, 2011, we issued a decision that affirmed the judgment
vacating the board's decision, but on broader grounds.
Schiffenhaus, 79 Mass.App.Ct. at 606. Specifically,
we held that, as a matter of law, the house could not be
considered an "alteration" of the existing cottage.
Id. at 604 ("an entirely new building in a
different location, which is also completely different in
appearance and more than four times the size of its
predecessor, cannot correctly be deemed an
'alteration' of the original"). We ordered that
the matter be remanded to the board for further proceedings.
Id. at 606.
The Schiffenhaus parties settle and the town changes its
after our opinion was published, but before the rescript
issued, the original owner filed a petition for rehearing.
That petition included some arguments on the merits, but its
primary purpose appears to have been to notify us that the
private parties in the litigation were close to settling
their dispute. Shortly thereafter, the parties reached a
settlement pursuant to which the original owner agreed to
expand the portion of the parcel that was subject to an
existing conservation restriction (thereby providing some
additional buffering protection for the Schiffenhaus
parties). The record includes allegations that the settlement
included unspecified cash payments to the Schiffenhaus
parties, but the additional terms of the settlement are not
in the record before us.
the settlement in hand and the rescript still not having
issued, the original owner and the Schiffenhaus parties
jointly filed a motion to vacate our remand order. They
argued that the Schiffenhaus parties were no longer
"aggrieved" and therefore lacked standing to
maintain the action. Up until this point, the board had been
an enthusiastic codefendant supporting the position of the
original owner. However, once we adjudicated the building
permit invalid, the town changed its position and opposed the
motion to vacate our remand order.
denied the petition for rehearing and the motion to vacate
the remand order. Then, once the Supreme Judicial Court
denied the original owner's petition for further
appellate review, we issued our rescript remanding the case
to the Land Court. The Land Court in turn remanded the matter
to the board, which on December 19, 2011, ordered the
building commissioner to revoke the 2008 building permit. At
this point, the board did not purport to determine the fate
of the house going forward but, instead, directed the
building commissioner to take "such other appropriate
action that he deems necessary." The original owner
appealed from the board's order, arguing again that
because the Schiffenhaus parties who brought the underlying
action were no longer aggrieved, the building permit could
not be revoked. A different Land Court judge dismissed this
new action, and we summarily affirmed. Landreth
v. Zoning Bd. of Appeals of Truro, 88
Mass.App.Ct. 1115 (2015).