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Barkan v. Zoning Board of Appeals of Truro

Appeals Court of Massachusetts, Suffolk

May 30, 2019

JOANNE BARKAN & others[1]

          Heard: November 5, 2018.

         Civil action commenced in the Superior Court Department on April 26, 2017.

         After transfer to the Land Court Department, a motion to dismiss was heard by Howard P. Speicher, J.

          Robert 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.

          MILKEY, J.

         Before 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.[3] 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 relied.


         1. The 2008 building permit.

         At the 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."

         As of 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 alteration").

         2. The Schiffenhaus litigation.

         A group 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.

         In 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 house.

         On May 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.

         3. The Schiffenhaus parties settle and the town changes its position.

         Soon 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.

         With 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.

         We 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).

         4. The ...

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