Opinion
20-P-525
01-06-2022
WINDROCK TRUST COMPANY, LLC, trustee, v. ZONING BOARD OF APPEALS OF LINCOLN & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff trustee of Oak Ridge Realty Trust IX (Oak Ridge), appeals from a summary judgment of the Superior Court entered in favor of the defendants and from an order denying Oak Ridge's subsequent motion for relief from judgment under Mass. R. Civ. P. 60 (b) (3), 365 Mass. 828 (1974). Oak Ridge contends that (1) summary judgment was improper because there was a dispute of material fact whether "good cause" existed to warrant extension of a special permit under section 21.5 of the town of Lincoln's zoning bylaws (the bylaws); (2) the ZBA and the Superior Court erred in concluding that the Lincoln building inspector had the authority to unilaterally extend a special permit under section 21.5 of the bylaws; and (3) the Superior Court erred in denying the plaintiff's rule 60 (b) motion. We affirm.
Defendants zoning board of appeals of Lincoln (ZBA) and the building inspector of Lincoln joined in defendants Jonathan and Holly Hedlunds’ motion for summary judgment, but did not file a brief or participate in this appeal. We refer to the Hedlunds and the municipal defendants jointly as the "defendants" herein.
Background. 1. Issuance of the special permit. We recite the material facts as established by the summary judgment record, reserving additional details for later discussion. On May 7, 2015, the ZBA issued a special permit to the Hedlunds to construct a horse barn and paddock on their property. The special permit provided that it would lapse in eighteen months if construction had not commenced, pursuant to section 21.5 of the bylaws. On June 18, 2015, after the conclusion of the statutorily required appeal period, see G. L. c. 40A, § 11, the Hedlunds recorded the special permit with the registry of deeds.
In opposing the defendants’ motion for summary judgment, Oak Ridge did not respond to the defendants’ statement of material facts in the form required by Rule 9A (b) (5) (iii) (A) of the Rules of the Superior Court (2019). When a party fails to comply with this rule, "each fact set forth in the moving party's statement of facts is deemed to have been admitted." Id. We therefore deem the defendants’ statement of material facts admitted and recount the facts accordingly. See Dziamba v. Warner & Stackpole LLP, 56 Mass. App. Ct. 397, 401 (2002) ("The judge acted within her discretion in taking as admitted those facts asserted by the moving party ... that were not disputed by the party opposing the motion for summary judgment ... in accordance with [Rule 9A (b) (5)]").
The Hedlunds planned to obtain barn materials for their barn from A&B Lumber LLC (A&B). During July and August 2016, the Hedlunds had conversations with Charles Noyes III (Noyes), whom they believed to be the owner of A&B. These conversations led them to believe that the future of A&B was uncertain. In October 2016, the Hedlunds, on reaching out to A&B to arrange delivery of the barn materials, came to believe that A&B was no longer in business and would not be able to deliver the barn materials. Thus, the Hedlunds concluded that they had no option but to pursue another vendor. In December 2016, the Hedlunds secured a new vendor, Barnyard Enterprises.
The defendants’ statement of undisputed material facts provides that "[t]he Hedlunds first learned that A&B Barnes would no longer be able to uphold its end of the agreement to deliver the barn ... when Holly Hedlund attempted to contact [A&B] in order to arrange delivery." Oak Ridge's competing statement of undisputed material facts contest this representation, characterizing it as a "misrepresentation" because "A&B ... had been operating as a continuous business since the 1970's." Oak Ridge's contention was based on an affidavit indicating that the A&B website showed they were still in business and recounting a phone call to A&B where the affiant was informed by "Pat" that A&B had changed ownership sometime in 2015 but still "carried on ... as it had before." For three reasons we conclude that, at the time of summary judgment, it was undisputed that the Hedlunds believed A&B would not be able to deliver the barn.
First, the defendants’ claim was not denied in the form required by Rule 9A (b) (5) of the Rules of the Superior Court (2019). It is therefore deemed admitted. See note 4, supra. Second, nothing in the plaintiff's affidavit directly refutes the Hedlunds’ claim that, in October 2016, they believed A&B would not be able to deliver the barn. Third, Oak Ridge's contention is based on inadmissible hearsay. Thus, the plaintiff's competing statement is insufficient to defeat summary judgment. Madsen v. Erwin, 395 Mass. 715, 721 (1985) ("Hearsay in an affidavit is unacceptable to defeat summary judgment"); Halbach v. Normandy Real Estate Partners, 90 Mass. App. Ct. 669, 670-671 (2016) ("factual allegations not based on personal knowledge [are] insufficient to avoid summary judgment" [citation omitted]).
After securing a new vendor, the Hedlunds requested a building permit and were denied. They were informed by the building inspector that their special permit had lapsed on November 7, 2016 (eighteen months after it had been issued by the ZBA). On December 20, 2016, the Hedlunds requested that the ZBA extend their special permit.
The Hedlunds mistakenly believed that the eighteen-month period ran from the date the special permit was recorded with the registry of deeds and not the date of issuance by the ZBA.
2. Extension of the special permit and appeal. At a February 2, 2017 hearing, the ZBA concluded -- after consultation with town counsel -- that the Hedlunds had made the showing of "good cause" required for the extension of a special permit under section 21.5 of the bylaws. Accordingly, the ZBA unanimously approved the extension "subject to the ... issuance of a written decision." Before the ZBA issued the written decision, the Hedlunds wrote to the building inspector explaining the recent ZBA extension and again seeking a building permit. The building inspector issued the defendants a building permit based on his own finding of good cause. During consultation with the ZBA, the Hedlunds were informed that the ZBA permit extension was no longer needed, because the building inspector had already issued the building permit, and withdrew their ZBA application accordingly. Therefore, the ZBA did not issue a written decision finalizing the February 2, 2017 ZBA extension decision. Oak Ridge then appealed to the ZBA, challenging the building inspector's extension of the special permit.
The ZBA considered Oak Ridge's written and in-person opposition to the extension.
The ZBA again held a hearing on the extension of the special permit. Oak Ridge argued, inter alia, that the Hedlunds had not shown good cause and that the building inspector did not have the unilateral authority to extend a permit under section 21.5 of the bylaws. The ZBA unanimously upheld the decision of the building inspector, relying in part on the opinion of town counsel that both the ZBA and the building inspector have the authority to determine good cause and extend a permit under section 21.5 of the bylaws -- an interpretation that was "consistent with the Town's historic practices." Oak Ridge then sought review by the Superior Court pursuant to G. L. c. 40A, § 17.
In the Superior Court, Oak Ridge again challenged the Hedlunds’ showing of good cause and the building inspector's authority to unilaterally extend a special permit under section 21.5 of the bylaws. On cross motions for summary judgment, the judge granted the defendants’ motion, concluding that the undisputed facts provided a substantial basis for the ZBA's decision and declining to disturb the ZBA's interpretation of their own bylaw.
3. Rule 60 (b)(3) motion. Oak Ridge appealed the summary judgment order to this court and subsequently filed a motion in the Superior Court seeking relief from judgment on the grounds of fraud on the court, pursuant to Mass. R. Civ. P. 60 (b) (3), 365 Mass. 828 (1974). The rule 60 (b) (3) motion alleged fraud regarding representations the Hedlunds made about their relationship with A&B. The motion was denied, and, upon leave of this court, an appeal of that denial was consolidated with the appeal of the summary judgment order.
Oak Ridge captions its rule 60 (b) motion as a "motion for reconsideration," as required by Rule 9D of the Rules of the Superior Court (2021). The content of that motion makes clear that it takes the form of a rule 60 (b) (3) motion, and we therefore refer to it as such.
Oak Ridge contends that the consolidated record, including the new evidence introduced in the 60 (b) (3) motion, should be considered by this court in deciding whether summary judgment was proper. This is incorrect. We review a grant of summary judgment "[f]rom the same record viewed by the motion judge." Kewley v. Department of Elementary & Secondary Educ., 86 Mass. App. Ct. 154, 158 (2014). We consider the consolidated record only for the purpose of determining whether the judge abused her discretion in denying Oak Ridge's rule 60 (b) (3) motion.
Discussion. 1. Good cause. Oak Ridge argues that summary judgment was improper because material issues of fact existed whether good cause had been established as a matter of law. This argument is unavailing.
Oak Ridge also argues that the judge's decision rested on factual conclusions that did not view the record in the light most favorable to the nonmoving party. We do not address these claims since we have reviewed the summary judgment record de novo and do not rely on the motion judge's interpretation of that record.
We review a grant of summary judgment de novo to determine "whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to judgment as a matter of law" (citation omitted). Casseus v. Eastern Bus Co., 478 Mass. 786, 792 (2018). "The moving party bears the burden of affirmatively demonstrating the absence of a triable issue." Milliken & Co. v. Duro Textiles, LLC, 451 Mass. 547, 550 n.6 (2008). If the moving party carries its burden, "the party opposing the motion must respond and allege specific facts establishing the existence of a genuine issue of material fact." French King Realty Inc. v. Interstate Fire & Cas. Co., 79 Mass. App. Ct. 653, 659-660 (2011).
Section 21.5 of the bylaws provide that "[s]pecial permits [for construction] shall lapse within a period of eighteen months ... if construction has not begun by such date except for good cause." This is in accord with G. L. c. 40A, § 9, which provides that "[z]oning ordinances or by-laws shall provide that a special permit granted under this section shall lapse within a specified period of time, not more than two years, ... from the grant thereof ... if construction has not begun by such date except for good cause." Good cause in G. L. c. 40A, § 9, is not defined in the statute and it has not been clearly defined by our courts.
The statute was amended effective August 10, 2016, to substitute "3 years" for "two years." St. 2016, c. 219, § 30.
We conclude that the circumstances here satisfied the "good cause" standard of G. L. c. 40A, § 9. Based on the summary judgment record, it was undisputed that the Hedlunds (1) believed their vendor would not be able to deliver the materials for a planned construction; and (2) secured a new vendor within a few months. The extension at issue was relatively brief -- a matter of approximately three months. Those circumstances fit the concept of a "good cause" extension expressly contemplated by the statute.
See notes 4 and 5, supra.
Oak Ridge contends that the extension of a special permit for good cause is only permitted on a showing of circumstances beyond the permit holder's control. We disagree. The authority Oak Ridge relies on, Cornell v. Board of Appeals of Dracut, 453 Mass. 888, 893 (2009), addresses the different issue of tolling the time limit for exercise of a variance, not the meaning of the "good cause" language of § 9. Whereas § 9 expressly provides that "good cause" will except a permit holder from having the permit lapse, the provision governing variances, G. L. c. 40A, § 10, does not contain such language. The distinction is unsurprising where "[a] variance ... is not analogous to a special permit. Unlike a special permit, which is issued for uses ‘in harmony with the general purpose and intent of the ordinance or by-law,’ a variance is ‘always in derogation’ of a town's zoning system" (citations omitted). Bernstein v. Chief Bldg. Inspector, 52 Mass. App. Ct. 422, 427-428 (2001). In short, Cornell is plainly distinguishable.
General Laws c. 40A, § 10, provides, in relevant part:
"If the rights authorized by a variance are not exercised within one year of the date of grant of such variance such rights shall lapse; provided, however, that the permit granting authority in its discretion and upon written application by the grantee of such rights may extend the time for exercise of such rights for a period not to exceed six months; and provided, further, that the application for such extension is filed with such permit granting authority prior to the expiration of such one year period."
2. Building inspector's authority to find good cause. Oak Ridge argues that the ZBA and the judge erred in concluding that the building inspector had the authority to make a finding of good cause and extend the special permit. We are not persuaded.
"We review the judge's determinations of law, including interpretations of zoning bylaws, de novo." Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirley, 461 Mass. 469, 475 (2012). We review the ZBA's findings of fact de novo, but "must review with deference legal conclusions within the authority of the [ZBA]." Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374, 381 (2009). This is due, in part, to the ZBA's "special knowledge of ‘the history and purpose of its town's zoning by-law’ " (citation omitted). Id. We must uphold the ZBA's interpretation "unless it is based on a legally untenable ground" (citation omitted). Id. at 382.
The bylaws provide that "[t]he [ZBA] shall hear and decide requests for special permits." Lincoln's Zoning Bylaws, § 20.2 (c). The building inspector is charged with "administer[ing] and enforc[ing]" the bylaws but may not "approve[ ] [an application for a nonconforming building permit] unless the applicant has secured a written permit from the [ZBA]." Lincoln's Zoning Bylaws, § 19, § 19.1 (a). Oak Ridge contends that the bylaws generally restrict the authority of the building inspector, and the building inspector's authority should therefore be interpreted narrowly. As a result, Oak Ridge concludes that the building inspector is, in effect, an administrative conduit in the application process and the bylaws allow only the ZBA to issue or extend a special permit.
Oak Ridge is correct that the building inspector cannot decide an initial special permit request. However, a good cause determination under section 21.5 of the bylaws is not equivalent to the issuance of a new permit. Rather, a good cause determination extends the period of validity of an existing permit. See Lincoln's Zoning Bylaws, § 21.5 (a special permit for construction "shall lapse within a period of eighteen months ... if construction has not begun by such date except for good cause"). Thus, under the circumstances presented here, it was legally tenable for the ZBA to construe their own bylaws as allowing the building inspector -- as the "administ[rator] and enforce[r]" of the bylaws, Lincoln's Zoning Bylaws, § 19 -- to make a good cause determination and extend an existing written permit that was initially granted by the ZBA. We decline to disturb the ZBA's reasonable interpretation of their own bylaws and therefore affirm the entry of summary judgment.
We note that the ZBA reached the same conclusion as the building inspector as to good cause.
3. The 60 (b) motion. Oak Ridge contends that the defendants committed fraud on the court warranting relief from judgment under Mass. R. Civ. P. 60 (b) (3), 365 Mass. 828 (1974), and that the judge's denial of their motion to that effect was an abuse of discretion. We do not agree.
A judge may grant a hearing on a rule 60 (b) motion, see Rule 9D of the Rules of the Superior Court (2021) ("If, upon reviewing the motion and supporting documents, the Justice who decided the original motion desires to hold a hearing on the motion for reconsideration, he or she may schedule a hearing thereon"), but the movant is not entitled to one even on request. See, e.g., Knight v. Board of Appeal on Motor Vehicle Liab. Policies & Bonds, 87 Mass. App. Ct. 1121 (2015) (rule 23.0). Furthermore, there is no presumptive right to a hearing on a rule 60 (b) motion, see Rule 9A (c) (3) of the Rules of the Superior Court (2021), and no hearing was requested in the present case. See Rule 9A (c) (2) of the Rules of the Superior Court (2021) ("Failure to request a hearing shall be deemed a waiver of any right to a hearing afforded by statute or court rule").
"The resolution of motions for relief from judgment ‘rests in the discretion of the trial judge.’ Accordingly, the ‘denial of a motion under Rule 60 (b) will be set aside only on a clear showing of an abuse of discretion’ " (citations omitted). Atlanticare Med. Ctr. v. Division of Med. Assistance, 485 Mass. 233, 247 (2020). Rule 60 (b) (3), 365 Mass. 828 (1974), provides for relief from judgment for "fraud ..., misrepresentation, or other misconduct of an adverse party." "Since neither the fraud nor misrepresentation is presumed, the moving party has the burden of proving by clear and convincing evidence that the alleged fraud or misrepresentation exists and that [the party] is entitled to relief." Reporters’ Notes to Mass. R. Civ. P. 60, Massachusetts Rules of Court, at 96 (Thomson Reuters 2020). See also Adoption of Yvonne, 99 Mass. App. Ct. 574, 583 n.15 (2021) (finding fraud under rule 60 (b) (3) must be shown by clear and convincing evidence).
"A ‘fraud on the court’ occurs where ‘it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party's claim or defense’ " (citation omitted).
Wojcicki v. Caragher, 447 Mass. 200, 209-210 (2006).
Here, Oak Ridge proffered an affidavit in support of its rule 60 (b) (3) motion that purports to show fraud by the Hedlunds. The affidavit from Noyes, a salesperson for A&B, avers, inter alia: A&B changed ownership but never went out of business; Noyes did not "experience[ ] uncertainty about whether A&B ... and its successor, Belletetes, could continue to offer the core A&B barn building material product lines"; he "would never have informed any customer about any A&B or Belletetes internal company business, including uncertainty about continuing a product line or a corporate event that [A&B] had gone out of business, which again, did not happen"; his dealings with the Hedlunds did not result in a contract and did not go beyond providing a material list, elevation drawing, and price quote; and his last contact with the Hedlunds occurred in September 2016, when he informed Holly Hedlund that he could not provide full structure plans "without a commitment to purchasing a material package" and "encouraged her to speak with Belletetes’ management." While Noyes's affidavit presents inconsistencies with the Hedlunds’ account of events, it was within the judge's broad discretion to conclude that the competing affidavit did not provide clear and convincing evidence of a scheme calculated to interfere with the judicial system. See Wojcicki, 447 Mass. at 209-210. See also Pina v. McGill Dev. Corp., 388 Mass. 159, 166 (1983) ("in order for the defendant to establish ... fraud, the [movant] here must prove ‘the most egregious conduct involving a corruption of the judicial process itself’ by establishing to the satisfaction of the trial judge that there was perjured testimony which influenced the judgment of the court" [citation omitted]). The judge did not abuse her discretion in determining that Oak Ridge did not meet its challenging burden under rule 60 (b) (3). Thus, we affirm the denial of that motion.
Judgment affirmed.
Order dated January 28, 2021, affirmed.