Appeals Court Rules that Settlement To Which Abutter Was Not a Party Does Not Deprive Zoning Board of Appeals of Jurisdiction Over Abutter’s Appeal

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In Stevens v. Zoning Board of Appeals of Bourne, et. al., the Massachusetts Appeals Court upheld the Bourne Board of Selectman’s decision to reinstate a cease and desist order against Plaintiff Lighthouse Realty Trust despite a Land Court settlement agreement between the Plaintiff and the Town.

An “abutter” is the owner of adjoining land-one whose property boundaries touch the boundaries of the land at issue. In Stevens, the Appeals Court addressed whether a zoning board has jurisdiction over an abutter’s appeal of a zoning decision reached through a settlement agreement where the abutter was not a party to the litigation.

In this case, on January 15, 2013, following complaints of traffic and noise from neighbors, the town of Bourne, MA issued a cease and desist order against Plaintiff Lighthouse Realty Trust (“Lighthouse”) preventing it from renting its property, located in a residential area of Bourne, for weddings and other large gatherings. The town subsequently brought an action in Land Court pursuant to G.L.c. 40A § 7 seeking declaratory and injunctive relief on the basis that Lighthouse’s rental of the property constituted prohibited commercial use in a residential zoning district. An abutter, Molloy, filed a motion to intervene in the case after it was referred to alternative dispute resolution but the judge denied Molloy’s motion. Instead, the judge ordered that the town, through its building inspector, give notice to Molloy and any other abutter regarding any decisions to vacate, annul, or modify the January 2013 cease and desist order. Lighthouse and the town reached a settlement agreement, and the building inspector issued a new cease and desist order allowing Lighthouse to continue renting its property subject to specific restrictions.

Molloy appealed the new order to the Bourne Zoning Board, which reinstated the January 2013 cease and desist order despite the settlement agreement between Lighthouse and the town. Lighthouse appealed that decision to the Superior Court and eventually to the Appeals Court, asserting that the Zoning Board lacked the jurisdiction to hear Molloy’s claim and, thus, erred in reinstating the January 2013 cease and desist order because Molloy was bound by the settlement agreement in the Land Court. Lighthouse relied on a previous Massachusetts Appeals court decision, Morganelli v. Building Inspector of Canton. In Morganelli, the abutters brought an action against a building inspector challenging the issuance of a building permit for a nonconforming lot. However, that issue was resolved in a prior litigation between the former owner of the lot and the building inspector. The Morganelli court concluded that the abutters in that case were bound by the decision of the Land Court since the case had been fully adjudicated, and the building inspector-by defending his decision to deny the permit-already litigated the very claim the abutters were raising in court. The Appeals Court distinguished Molloy’s case from Morganelli’s by emphasizing that the Land Court action in Molloy was resolved by a voluntary agreement rather than adjudication. Further, the Court ruled that the abutters in this action had not had an opportunity in Land Court to ensure that their interest were protected. The Court also noted that the Land Court judge’s order to the building inspector to give notice to Molloy and the other abutters of any settlement decision signaled that he was seeking to preserve the abutters’ statutory rights.

The Court also concluded that the matter was properly before the Zoning Board since the settlement agreement was subject to the notice and hearing requirements under Chapter 40A. It reasoned that, otherwise, parties could use settlements as a mechanism to avoid the interest of abutters, other interested parties, and the procedural safeguards in Chapter 40A. Thus, the Appeals Court upheld the Superior Court and Zoning Board’s decision since the settlement agreement did not deprive the Zoning Board jurisdiction over the Molloy’s appeal. Furthermore, the Court ruled that the decision from the Zoning Board was not arbitrary or based on legally untenable ground.


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