Opinion
13-P-1749
02-04-2015
ROBERT DELPRETE v. ZONING BOARD OF APPEALS OF ROCKLAND & others.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Robert DelPrete, appeals from a Land Court judge's grant of summary judgment in favor of the defendants, upholding the denial by the Rockland zoning board of appeals (board) of his request for a variance. He also appeals from the denial of his motion pursuant to Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974), for relief from judgment. We vacate the judgment and remand for the limited purpose of consideration of the factors that may inform an equitable remedy determination, and we affirm the denial of the rule 60(b) motion.
D i scussion. DelPrete argues it was improper to grant summary judgment in favor of the defendants. Judicial review of a local zoning board's decision "involves a combination of de novo and deferential analyses." Shirley Wayside, Ltd. Partnership v. Board of Appeals of Shirley, 461 Mass. 469, 474 (2012). "A board's decision cannot be disturbed unless it is based on legally untenable ground or is unreasonable, whimsical, capricious or arbitrary." E & J Properties, LLC v. Medas, 464 Mass. 1018, 1019 (2013) (quotation omitted). "No person has a legal right to a variance and they are to be granted sparingly." Steamboat Realty, LLC v. Zoning Bd. of Appeal of Boston, 70 Mass. App. Ct. 601, 602 (2007) (Steamboat) (quotation omitted). General Laws c. 40A, § 10, sets out three requirements to receive a variance. DelPrete's attorney has conceded that the lot does not satisfy these three requirements. Nonetheless, DelPrete argues that the board was required by the concepts of equity or estoppel to grant his application for a variance.
If variances are granted with undue frequency or liberality and without strict compliance with the prescribed statutory criteria, "zoning regulations can become a matter of administrative whim." Steamboat, supra at 602-603.
A landowner must show that (1) "owing to circumstances relating to the soil conditions, shape, or topography of such land or structures and especially affecting such land or structures but not affecting generally the zoning district in which it is located," (2) "a literal enforcement of the provisions of the ordinance or by-law would involve substantial hardship, financial or otherwise, to the petitioner, and [(3)] that desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of such ordinance or by-law." G. L. c. 40A, § 10, inserted by St. 1975, c. 808, § 3.
DelPrete contends that he relied on the building and occupancy permits issued by the building inspector, and thus the town should be estopped from enforcing its zoning by-law. However, courts have frequently and consistently held "that a municipality cannot ordinarily be estopped . . . from enforcing its zoning by-law or ordinance." Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, 162 (1977) (Sanderson). A town officer cannot forfeit the right of the public to have the zoning by-law properly enforced. See Building Commr. of Franklin v. Dispatch Communications of New England, Inc., 48 Mass. App. Ct. 709, 715 (2000) (Franklin). "[T]he doctrine of estoppel cannot stay the hand of a municipality in enforcing its zoning laws." Sanderson, supra (quotation omitted). Because the lot in this case does not meet the necessary statutory requirements and a building permit cannot estop a municipality from enforcing its zoning by-law, the board's decision to deny a variance was not based on a legally untenable ground; nor was it unreasonable, whimsical, capricious, or arbitrary.
"The governmental zoning power may not be forfeited by the action of local officers in disregard of the statute and the ordinance. The public has an interest in zoning that cannot thus be set at naught." Sanderson, supra at 162-163 (quotation omitted).
See Brady v. Board of Appeals of Westport, 348 Mass. 515, 521 (1965) ("[i]n a proceeding for enforcement of the zoning law, the existence of a permit is inconsequential). See also Franklin, supra at 716 ("a permit [cannot] legalize a structure or use that violates the zoning by-law").
During oral argument, DelPrete's attorney acknowledged that the case law does not support estoppel.
That being said, a number of cases have allowed an equitable remedy for a zoning by-law violation. In Sheppard v. Zoning Bd. of Appeal of Boston, 81 Mass. App. Ct. 394, 405 (2012), the court held that monetary damages were sometimes an alternative remedy for zoning violations. Additionally, in Marblehead v. Deery, 356 Mass. 532, 537-538 (1969) (Deery), the court allowed a house to remain standing although it violated the town zoning by-law. The court made this decision because a tear-down order would result in substantial hardship and expense to the landowner, the landowner had greatly changed his position in reliance on the approval of the subdivision, and there was no injury to a public interest. See id. at 538. In Steamboat, 70 Mass. App. Ct. at 606-607, the court looked at similar factors, and ultimately held that an equitable remedy was not appropriate.
The court also noted there was no suggestion that any of the participants had acted in bad faith. See Deery, supra at 537.
See Brandao v. DoCanto, 80 Mass. App. Ct. 151, 158-159 (2011) ("Our decisions have recognized a narrow exception to the general rule favoring removal in rare and exceptional cases where an order of removal would be, for various reasons, oppressive and inequitable").
While a judge cannot order a town zoning board to grant a variance, he does have some discretion to grant an equitable alternative to a tear-down order. Here, the judge denied such a remedy. The judge may very well be correct in his ruling. In an abundance of caution, we remand only so that he may consider the balance of factors that may enter into such a calculus. For example, such factors could include whether a tear-down would cause substantial hardship, whether DelPrete greatly changed his position as a result of actions taken by a town official and whether such reliance was reasonable, whether there is injury to a public interest if the house remains standing, and finally, whether the parties acted in good faith throughout this process. In remanding, we do not intimate in any fashion whatsoever how the judge should rule.
While reliance cannot estop a town from enforcing its by-law, it can help determine what remedy is appropriate for a violation.
In Steamboat, supra at 605-606, the zoning board had a well-established interest in preserving the architectural integrity of the neighborhood, and had consistently denied all requests for a height variance. Thus, there was more than just a mere technical violation of the zoning by-law. See id. at 606-607.
See note 7, supra. In Steamboat, supra at 607, while the court did not explicitly find bad faith, the court did mention that there was a building permit issued, but that the permit did not approve the increase in height. The application for the permit "showed no increase in height or exterior volume." Ibid.
The calculus might specifically consider how much DelPrete actually spent to build this house, whether DelPrete had knowledge of the lot's nonconformity prior to purchase, what DelPrete originally intended for this property, whether DelPrete had actually exhausted every possible option possible to bring this lot into conformity with the zoning by-law, and whether a third party canceled a purchase and sale agreement with DelPrete as a result of its own due diligence.
Finally, we find no merit in DelPrete's claim for relief pursuant to Mass.R.Civ.P. 60(b), and affirm the denial of such relief.
We note that, contrary to DelPrete's characterizations, the conscientious judge conducted the prior proceedings with judiciousness and impartiality. We also discern no merit in the claim of newly discovered evidence.
The judgment is vacated, and the matter is remanded for further proceedings consistent with this memorandum and order.
The order denying the rule 60(b) motion is affirmed.
By the Court (Kantrowitz, Graham & Katzmann, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: February 4, 2015.