Posted by: Patricia Salkin | November 21, 2019

MA Appeals Court Vacates Summary Judgement as Zoning Board of Appeals Had Insufficient Record to Support Its Decision

This post was authored by Raymond Fragola, ’20 Touro Law Center 

Defendant, Michael Madulka owns an ice cream shop and office building located in Worcester.  The ice cream shop use is located within a residential zoning district.  The defendant filed an application for a special permit to expand the ice cream shop to allow for the sale of other types of food and to provide sit-down service to its patrons.  In addition to the special permit, the defendant also required a parking variance as he could not meet the minimum number of parking spaces required for the expansion.  After the Wocester Zoning Board granted both the defendant’s proposals, three neighboring residents appealed the Zoning Board’s decision to the Superior Court.  The Superior Court granted the Zoning Board’s motion for summary judgement and denied plaintiffs motion for reconsideration.

The Zoning Board filed a statement of material facts with its motion for summary judgement which only included a copy of the Zoning Board’s decision and an affidavit that the copy was true and accurate, a copy of the plaintiff’s complaint, and the plaintiff’s response to interrogatories.  The plaintiff’s submitted a joint opposition to the Zoning Board’s motion, which was accepted by the judge despite the fact the filling was not in accordance with Rule 9A.  In granting the Zoning Board’s motion for summary judgement the Superior Court judge held “that the decision of the zoning board is factually supported, is reasonable, does not derogate from the intent of the zoning ordinance, is legally sound and not arbitrary or capricious.”

Judicial review of a decision of a local zoning board of appeals is not based on record review.  Rather the facts are to be established de novo in the judicial proceeding appealing the board’s decision.  Furlong v. Zoning Bd. Of Appeals of Salem, 90 Mass. App. Ct. 737, 739 (2016).  In order for summary judgement to be granted, a party must demonstrate there are not marterial facts in dispute.  In Massachusetts, this is accomplished by complying with Massacusettes Rule of Civil Procedure P. 56 which requires:

“Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein…The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits.”

The Appeals Court noted that the only affidavit submitted by the Zoning Board was the one certifying the copy of the Zoning Board decision was true and accurate.   The Appeals Court went on to state that this affidavit only establishes what the Zoning Board decided, and the judge “is not permitted to give the board’s finding or decision evidentiary weight.”  Josephs v. Board of Appeals of Brookline, 362 Mass. 290, 295 (1972).  Further, the Appeals Court stated that the plaintiff’s responses to interretories demonstrate that the plaintiffs contest the facts that the Zoning Board found with respect to the projected impacts of the restaurant expansion.  As a result, the Appeals Court held that the Zoning Board’s summary judgement package was deficient.  In response to this deficiency, the Zoning Board made no effort to defend its submission but instead claimed the plaintiffs waived the right to challenge by failing to comply with Rule 9A.

The Appeals Court found this argument unpersuasive.  It held that because the Zoning Board did not support its motion in the required manner, the plaintiff’s duty to respond in a timely manner was never triggered.  The Appeals Court also held that even when a motion for summary judgment is unopposed, the moving party still must demonstrate that it is entitled to judgement as a matter of law.   Because the Zoning Board’s motion for summary judgement was improperly allowed, the Appeals Court ordered that the summary judgement to be vacated.

Johnson v. Zoning Bd. of Appeals of Worcester, 2019 WL 6034797 (unrep. Mass. App. Ct. 11/14/2019)


Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s


%d bloggers like this: