NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-1021
TIMOTHY BURKE, trustee,1
vs.
ZONING BOARD OF APPEALS OF DENNIS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After the building commissioner for the town of Dennis
declined to issue a building permit, the plaintiff, Timothy
Burke, as trustee of the TVB Trust, unsuccessfully challenged
that decision before the town's zoning board of appeals (board).
The plaintiff appealed the board's decision to the Land Court by
filing a complaint against the board pursuant to G. L. c. 40A,
§ 17. A judge entered summary judgment for the board. The
plaintiff now appeals, and we affirm.
Background. On October 24, 1973, the town amended its
zoning bylaws and increased the minimum lot area in its R-40
Zoning District from 7,500 square feet to 20,000 square feet.
1 Of the TVB Trust. Forty-three years later, on October 13, 2016, the plaintiff
bought a non-conforming, unimproved lot containing 7,650 square
feet within the R-40 Zoning District. On June 2, 2020, the
plaintiff filed an application for a building permit. The
building commissioner denied the application, and the plaintiff
appealed that decision to the board. On March 3, 2021, the
board issued its decision indicating that it unanimously upheld
the decision of the building commissioner.
On March 19, 2021, the plaintiff filed his complaint and
raised two claims: (1) the board's decision was legally
unsupportable, arbitrary, and capricious, and (2) the board
issued a special permit allowing him to build on the property.
The judge allowed the board's motion for summary judgment,
affirmed the board's decision, and further concluded that the
board did not issue a special permit.
Discussion. Our review of an allowance of a motion for
summary judgment is de novo. Blake v. Hometown Am. Communities,
Inc., 486 Mass. 268, 272 (2020). We must view the record
evidence, and all reasonable inferences that can be drawn
therefrom, in the light most favorable to the nonmoving party,
here the plaintiff. Id. Summary judgment is appropriate only
where, viewing the record in that light, there is no genuine
issue of material fact, and the moving party is entitled to
judgment as a matter of law. Mass. R. Civ. P. 56 (c), as
2 amended, 436 Mass. 1404 (2002). In the context of a zoning case
decided by summary judgment, the judge "does not engage in fact
finding," so "we do not give deference to the judge's decision."
81 Spooner Rd., LLC v. Zoning Bd. of Appeals of Brookline, 461
Mass. 692, 699 (2012), citing Albahari v. Zoning Bd. of Appeals
of Brewster, 76 Mass. App. Ct. 245, 248 (2010).
1. Bylaw amendment. The plaintiff bases his claim on
section 1.9 of the town's zoning bylaws adopted in 1973 that
expressly replaced the existing bylaws "but shall not affect
such rights or duties that have matured." Based on this
language, the plaintiff contends that because the property
satisfied the minimum lot requirement prior to the effective
date of the 1973 amendment, his right to build had "matured"
before the amendment. We disagree.
The Legislature permits cities and towns to "adopt[] and
from time to time change[] by amendment" zoning ordinances and
bylaws. G. L. c. 40A, § 5. The 1973 amendment at issue here
did exactly that by increasing the minimum lot size. We discern
nothing in the summary judgment record to suggest that the
amendment did not apply to the property at issue. See
Leominster Materials Corp. v. Board of Appeals of Leominster, 42
Mass. App. Ct. 458, 461 (1997) ("court cannot read into the
ordinance an unexpressed exception"). The plaintiff's
reasoning, that his rights were forever fixed by the lot size
3 requirements of the superseded bylaw, is simply at odds with the
power of the municipality to create uniform districts and to
amend its bylaws. See G. L. c. 40A, § 4, 5. See also SCIT,
Inc. v. Planning Bd. of Braintree, 19 Mass. App. Ct. 101, 107
(1984) ("basic assumption underlying the division of a
municipality into zoning districts is that, in general, each
land use will have a predictable character and that the uses of
land can be sorted out into compatible groupings").
His contention is also at odds with the plain language of
section 1.9. Nothing in the record suggests that the
plaintiff's particular "rights or duties" somehow matured
through circumstances existing in 1973 when the amendment became
effective. At that point in time, no "rights or duties" beyond
the title of a prior owner existed: the plaintiff did not own
the property, no building permit had been requested, no building
permit had been issued, and no construction of a dwelling had
commenced. Thus, forty-three years later when the plaintiff
acquired title to the property, he did not also acquire
ancillary "rights or duties," that had "matured" as contemplated
by section 1.9. See 81 Spooner Rd., LLC, 78 Mass. App. Ct. 233,
245 n. 29 (2010) ("local zoning bylaw must be reasonably
construed, and must not be interpreted in a manner that would
produce an absurd result"). Consequently, summary judgment
properly entered for the board.
4 We also discern nothing in the board's decision that is
unreasonable, arbitrary, whimsical, or capricious. The
plaintiff asks us to look beyond the four corners of the
decision and the governing law and consider the board's "long
history of making zoning decisions which advanced the interests
of some but excluded nonresidents." He contends that residents
have successfully obtained variances from the lot size
limitations where nonresidents have failed. The case before us,
however, is not an appeal from the denial of a variance; it is
an appeal from the denial of a request to build as a matter of
right. As the board conceded at oral argument, discretionary
zoning relief may, theoretically, be available to the plaintiff
through a dimensional variance, but he has not requested one.
Therefore, the differential treatment claim that the plaintiff
is now raising in connection with variances is not properly
before us, and we decline to consider it.
We reject the plaintiff's alternative argument that the
board actually issued a special permit after all. He relies on
a line in the board decision, clearly boilerplate and added in
error, "[t]his Special Permit shall lapse if substantial use or
construction has not commenced without good cause within one
year from the date issued." The line is entirely inconsistent
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-1021
TIMOTHY BURKE, trustee,1
vs.
ZONING BOARD OF APPEALS OF DENNIS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After the building commissioner for the town of Dennis
declined to issue a building permit, the plaintiff, Timothy
Burke, as trustee of the TVB Trust, unsuccessfully challenged
that decision before the town's zoning board of appeals (board).
The plaintiff appealed the board's decision to the Land Court by
filing a complaint against the board pursuant to G. L. c. 40A,
§ 17. A judge entered summary judgment for the board. The
plaintiff now appeals, and we affirm.
Background. On October 24, 1973, the town amended its
zoning bylaws and increased the minimum lot area in its R-40
Zoning District from 7,500 square feet to 20,000 square feet.
1 Of the TVB Trust. Forty-three years later, on October 13, 2016, the plaintiff
bought a non-conforming, unimproved lot containing 7,650 square
feet within the R-40 Zoning District. On June 2, 2020, the
plaintiff filed an application for a building permit. The
building commissioner denied the application, and the plaintiff
appealed that decision to the board. On March 3, 2021, the
board issued its decision indicating that it unanimously upheld
the decision of the building commissioner.
On March 19, 2021, the plaintiff filed his complaint and
raised two claims: (1) the board's decision was legally
unsupportable, arbitrary, and capricious, and (2) the board
issued a special permit allowing him to build on the property.
The judge allowed the board's motion for summary judgment,
affirmed the board's decision, and further concluded that the
board did not issue a special permit.
Discussion. Our review of an allowance of a motion for
summary judgment is de novo. Blake v. Hometown Am. Communities,
Inc., 486 Mass. 268, 272 (2020). We must view the record
evidence, and all reasonable inferences that can be drawn
therefrom, in the light most favorable to the nonmoving party,
here the plaintiff. Id. Summary judgment is appropriate only
where, viewing the record in that light, there is no genuine
issue of material fact, and the moving party is entitled to
judgment as a matter of law. Mass. R. Civ. P. 56 (c), as
2 amended, 436 Mass. 1404 (2002). In the context of a zoning case
decided by summary judgment, the judge "does not engage in fact
finding," so "we do not give deference to the judge's decision."
81 Spooner Rd., LLC v. Zoning Bd. of Appeals of Brookline, 461
Mass. 692, 699 (2012), citing Albahari v. Zoning Bd. of Appeals
of Brewster, 76 Mass. App. Ct. 245, 248 (2010).
1. Bylaw amendment. The plaintiff bases his claim on
section 1.9 of the town's zoning bylaws adopted in 1973 that
expressly replaced the existing bylaws "but shall not affect
such rights or duties that have matured." Based on this
language, the plaintiff contends that because the property
satisfied the minimum lot requirement prior to the effective
date of the 1973 amendment, his right to build had "matured"
before the amendment. We disagree.
The Legislature permits cities and towns to "adopt[] and
from time to time change[] by amendment" zoning ordinances and
bylaws. G. L. c. 40A, § 5. The 1973 amendment at issue here
did exactly that by increasing the minimum lot size. We discern
nothing in the summary judgment record to suggest that the
amendment did not apply to the property at issue. See
Leominster Materials Corp. v. Board of Appeals of Leominster, 42
Mass. App. Ct. 458, 461 (1997) ("court cannot read into the
ordinance an unexpressed exception"). The plaintiff's
reasoning, that his rights were forever fixed by the lot size
3 requirements of the superseded bylaw, is simply at odds with the
power of the municipality to create uniform districts and to
amend its bylaws. See G. L. c. 40A, § 4, 5. See also SCIT,
Inc. v. Planning Bd. of Braintree, 19 Mass. App. Ct. 101, 107
(1984) ("basic assumption underlying the division of a
municipality into zoning districts is that, in general, each
land use will have a predictable character and that the uses of
land can be sorted out into compatible groupings").
His contention is also at odds with the plain language of
section 1.9. Nothing in the record suggests that the
plaintiff's particular "rights or duties" somehow matured
through circumstances existing in 1973 when the amendment became
effective. At that point in time, no "rights or duties" beyond
the title of a prior owner existed: the plaintiff did not own
the property, no building permit had been requested, no building
permit had been issued, and no construction of a dwelling had
commenced. Thus, forty-three years later when the plaintiff
acquired title to the property, he did not also acquire
ancillary "rights or duties," that had "matured" as contemplated
by section 1.9. See 81 Spooner Rd., LLC, 78 Mass. App. Ct. 233,
245 n. 29 (2010) ("local zoning bylaw must be reasonably
construed, and must not be interpreted in a manner that would
produce an absurd result"). Consequently, summary judgment
properly entered for the board.
4 We also discern nothing in the board's decision that is
unreasonable, arbitrary, whimsical, or capricious. The
plaintiff asks us to look beyond the four corners of the
decision and the governing law and consider the board's "long
history of making zoning decisions which advanced the interests
of some but excluded nonresidents." He contends that residents
have successfully obtained variances from the lot size
limitations where nonresidents have failed. The case before us,
however, is not an appeal from the denial of a variance; it is
an appeal from the denial of a request to build as a matter of
right. As the board conceded at oral argument, discretionary
zoning relief may, theoretically, be available to the plaintiff
through a dimensional variance, but he has not requested one.
Therefore, the differential treatment claim that the plaintiff
is now raising in connection with variances is not properly
before us, and we decline to consider it.
We reject the plaintiff's alternative argument that the
board actually issued a special permit after all. He relies on
a line in the board decision, clearly boilerplate and added in
error, "[t]his Special Permit shall lapse if substantial use or
construction has not commenced without good cause within one
year from the date issued." The line is entirely inconsistent
with the remainder of the text in the decision as well as the
unanimous vote of the board. Such an evident clerical error
5 does not amount to a conscious decision to reverse direction and
issue a special permit (that was not even requested). See
Burwick v. Zoning Bd. of Appeals of Worcester, 1 Mass. App. Ct.
739, 742 (1974).
2. Discovery. The scope of permissible discovery is
governed by Mass. R. Civ. P. 26 (b), 365 Mass. 772 (1974). In
general, "[p}arties may obtain discovery regarding any matter,
not privileged, which is relevant to the subject matter involved
in the pending action." Mass. R. Civ. P. 26 (b) (1). However,
"[t]he conduct and scope of discovery is within the sound
discretion of the judge." Cardone v. Boston Reg'l Med. Ctr.,
Inc., 60 Mass. App. Ct. 179, 191 (2003), quoting Solimene v. B.
Grauel & Co., KG, 399 Mass. 790, 799 (1987). The plaintiff
"must show that the denial of his motion to compel discovery
constituted such an abuse of discretion." Cardone, 60 Mass.
App. Ct. at 191.
We discern no abuse of discretion here where the judge
placed reasonable limitations on wide-ranging discovery
requests. The plaintiff sought all records of approved
residential construction on lots of 7,500 square feet or less
from October 1, 1973, until December 10, 2021. After a hearing,
the judge ordered the board to produce any of its decisions
relating to section 1.9 from the effective date of the bylaw
amendment in 1973 to 1980. The judge denied the motion to the
6 extent it sought additional records, concluding that the board
"[has] already produced a substantial number of documents and
the request for documents beyond this timeframe or scope is
overbroad, unduly burdensome (requiring substantial manual labor
by the Town staff) and speculative." The judge further
concluded that the "[p]laintiff has failed to provide a
reasonable explanation or any evidentiary support as to why
documents beyond this timeframe are reasonably calculated to
lead to the discovery of admissible evidence in light of the
limited issue before the court in this case." Especially in the
absence of demonstrated relevance, the judge acted well within
her discretion by limiting discovery.
3. Motion to amend complaint. The judge denied a motion
to amend the complaint that "proposed additional facts, [which
did] not appear to be relevant, and may be misleading, as they
related to the standard for a variance while the plaintiff seeks
to build as of right." We review the denial of a motion to
amend a complaint for abuse of discretion. See Murphy v.
I.S.K.Con. of New England, 409 Mass. 842, 864 (1991). While
leave to amend should be "freely given when justice so
requires," Mass. R. Civ. P. 15 (a), 365 Mass. 761 (1974), such
leave may be denied where there is undue delay, undue prejudice
to the opposing party, or futility in the amendment. Mathis v.
Massachusetts Elec. Co., 409 Mass. 256, 264 (1991). We discern
7 no abuse of discretion where the plaintiff sought to add
allegations related to dimensional variances granted by the
board in other cases and the granting of a building permit that
did not involve the board.
4. Motion to strike. Finally, the plaintiff contends that
the judge erred in allowing the board's motion to strike an
exhibit containing a chart prepared by the plaintiff and
summarizing board decisions on variance applications issued
following the 1973 bylaw amendment, as well as an exhibit
containing a 1993 building permit that purportedly issued in
connection with the property. Here, again, the judge acted
within her discretion in striking matters that were not relevant
to the case before her. See Mass. R. Civ. P. 12 (f), 365 Mass
754 (court may strike any "redundant, immaterial, impertinent,
or scandalous matter"). The chart summarizing decisions on
variance applications was irrelevant to the determination of
whether the property met the minimum lot size requirement. See
Warren v. Board of Appeals of Amherst, 383 Mass. 1, 9 (1981),
citing Charter v. Board of Appeals of Milton, 348 Mass. 237,
241-243 (1964) ("The factual and legal basis on which to judge
the propriety of the board's grant or denial of a variance . . .
is not the same as it would be if the original application had
been for a permit as of right"). Similarly, the 1993 building
8 permit did not issue through board action and did not bear any
connection to the issues in the case.
The board's request for attorney's fees and costs is
denied.
Judgment affirmed.
By the Court (Singh, D'Angelo & Hodgens, JJ.2),
Clerk
Entered: August 19, 2025.
2 The panelists are listed in order of seniority.