Opinion
16-P-404
06-27-2017
Kevin R. MCGEE v. ZONING BOARD OF ROCKLAND.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Kevin R. McGee appeals from a summary judgment affirming the denial by the zoning board of Rockland of McGee's application for a special permit to sell used cars on his property, which is located in a residential zone. We affirm.
Background. The following undisputed facts are taken from the summary judgment record. Prior to 2007, McGee operated a used car dealership on his property, a practice the town allowed as a grandfathered, nonconforming use. McGee renewed his class II used car dealer's license in 2007, and that license expired on December 31, 2007.
Where McGee failed to deny the zoning board's requests for admissions, they were deemed admitted by the Superior Court judge. See Mass.R.Civ.P. 36, 365 Mass. 795 (1974).
McGee reapplied for a class II license in 2010. The town board of selectmen denied that application and McGee filed a complaint in Superior Court, McGee v. Town of Rockland & others, Civil Action No. 10-1036 (McGee I ), claiming that the denial was unlawful. The defendants moved for summary judgment, and the motion judge dismissed McGee's claims, noting, as one ground, the absence of evidence supporting McGee's claim. McGee appealed from an order denying his motion to vacate the summary judgment, which was affirmed by this court. McGee v. Rockland, 88 Mass. App. Ct. 1119 (2016).
McGee alleges that he also filed class II license applications in 2008 and 2009. It does not appear from the record that a class II license issued for 2008 or 2009. See Chokel v. Genzyme Corp., 449 Mass. 272, 279 (2007) (appellate court not required to look beyond appendix to consider missing documents).
On March 13, 2012, McGee petitioned the zoning board for a special permit to allow him to sell cars on his property. Because he had not had a license to sell cars on his property for over two years, the zoning board denied his application, based on § 415-24(E) of the town's zoning bylaws which states that any nonconforming uses that have been "abandoned or discontinued for more than two years shall not be reestablished and any future use shall be in conformity with the provisions of this bylaw." Following the denial, McGee filed a complaint in Superior Court, where the court granted summary judgment for the zoning board. This appeal followed.
Discussion. We review a grant of summary judgment de novo. DeWolfe v. Hingham Centre, Ltd., 464 Mass. 795, 799 (2013). A court may deny a summary judgment motion or order a continuance to permit affidavits to be obtained or depositions to be taken if it appears that the opposing party "cannot for reasons stated present by affidavit facts essential to justify his opposition." Mass.R.Civ.P. 56(f), 365 Mass. 824 (1974).
1. Discovery motions. McGee argues that summary judgment was improperly granted because the zoning board did not comply with discovery orders, leaving triable issues of fact. However, in his opposition to summary judgment, McGee did not state that he had insufficient evidence to support his position, and thus failed to "avail" himself of rule 56(f). A. John Cohen Ins.Agency, Inc. v. Middlesex Ins. Co. 8 Mass. App. Ct. 178, 183 (1979). Without a showing that "the necessary facts or evidence are possessed or controlled by the moving party," McGee failed to demonstrate a genuine issue of material fact. Id. at 183-184 ("Because the agency failed to file a sufficient affidavit under either rule 56 [e] or [f], there was no error in allowing the motion for summary judgment").
2. Issue preclusion. Because McGee did not renew his class II license to sell cars after it expired on December 31, 2007, the zoning board concluded in its 2012 decision that that existing nonconforming use of McGee's property had been discontinued for more than two years and thus denied his special permit application. McGee argues on appeal that he attempted to renew his class II license and the town board of selectmen improperly denied his 2010 license application. The zoning board argues that McGee I precludes McGee from challenging the rejection of this license application. McGee argues that preclusion does not apply because the zoning board was not a party to that action.
"A nonparty may use [issue preclusion, also known as] collateral estoppel [,] defensively against a party to the original action who had a full and fair opportunity to litigate the issues in question." Martin v. Ring, 401 Mass. 59, 61 (1987). Issue preclusion may be applied defensively if four conditions are met: (a) there was a final judgment on the merits in a prior adjudication, (b) the party against whom estoppel is asserted was a party or in privity with a party to the prior adjudication, (c) the issue in the prior adjudication is identical to the one at bar, and (d) the issue decided in the prior adjudication was essential to that judgment. See Supeno v. Equity Office Properties Mgmt., LLC, 70 Mass. App. Ct. 470, 473-474 (2007).
In McGee I, there was a final judgment on the merits against McGee where the issue is the same one McGee presses here as the claimed flaw in the zoning board's decision—namely, whether the board of selectmen's rejection of McGee's license application was unlawful, and resolution of that issue was essential to the decision. See McGee v. Rockland, 88 Mass. App. Ct. 1119. McGee, the party against whom estoppel is asserted, was a party to that action. Since all of the conditions for issue preclusion are met, McGee is precluded from relitigating the denial of his class II license. See Supeno, supra.
3. Zoning board's decision. Regardless of the preclusive effect of the board of selectmen's decision on McGee's class II license, the zoning board was within its right to reject McGee's petition for a special permit. The decision of the zoning board "cannot be disturbed unless it is based on a legally untenable ground or is based on an unreasonable, whimsical, capricious or arbitrary exercise of its judgment in applying land use regulation." Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374, 381-382 (2009) (quotations omitted). "With respect to conclusions regarding interpretations of a zoning ordinance and their application to the facts," an appellate court is "highly deferential" to a zoning board's denial, id. at 383, given the zoning board's special knowledge of its town's regulations. See id. at 381. See also Gulf Oil Corp. v. Board of Appeals of Framingham, 355 Mass. 275 (1969).
As previously noted, § 415-24(E) of the town's zoning bylaws state that any nonconforming use that has been discontinued for more than two years "shall not be reestablished and any future use shall be in conformity with the provisions of this bylaw." McGee admits that when he applied for a special permit in 2012, he did not have a license to sell cars and had not sold cars on his property since 2008. Thus, the zoning board's finding that the use had been discontinued was not "unreasonable, whimsical, capricious or arbitrary." Wendy's, supra at 382.
Because McGee failed to deny the following facts in response to the zoning board's request for admissions, he was deemed to have admitted them:
"REQUEST NO. 5
You do not currently possess a Class II Used Car Dealer license.
"REQUEST NO. 6
You have not possessed a Class II Used Car Dealer license since 2007, when your license expired.
"REQUEST NO. 7
You did not apply for renewal of the Class II Used Car Dealer license in 2008 or 2009.
"REQUEST NO. 8
You did not possess a Class II Used Car Dealer license during the following years: 2008; 2009; 2010; 2011; and 2012."
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Accordingly, the summary judgment dismissing McGee's appeal from the zoning board's decision denying his application for a special permit is affirmed.
4. Fees and costs. The zoning board argues that the board should be awarded fees and costs for this appeal under G. L. c. 40A, § 17, which states, "[c]osts shall not be allowed against the party appealing from the decision of the board or special permit granting authority unless it shall appear to the court that said appellant or appellants acted in bad faith or with malice in making the appeal to the court." G. L. c. 40A, § 17, inserted by St. 1975, c. 808, § 3. Bad faith actions are those "interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation." Sheehan v. Zoning Bd. of Appeals of Plymouth, 65 Mass. App. Ct. 52, 61 (2005), quoting from Hahn v. Planning Bd. of Stoughton, 403 Mass. 332, 337 (1988).
Although McGee's appeal lacked merit, we cannot say that he acted in bad faith or with malice. The record does not suggest that McGee filed this suit to drive up costs or harass the zoning board. See Sheehan, supra. Nor did he take part in "the type of extensive, baseless legal maneuvering that is intended solely to cause delay." Id. at 62. We therefore deny the zoning board's request for fees and costs.
Judgment affirmed.