The Appeals Court has concluded that the Appellate Division of the District Court Department of the Trial Courts has jurisdiction to hear a G.L. c. 40A, § 17 appeal from the District Court, based upon the extension of equity jurisdiction to the district courts over the past two decades.
The Court’s decision in Tusino v. Zoning Board of Appeals of Douglas et al., 15-P-1400/14-P-1193 (August 25, 2016) is the most recent decision in a fairly-convoluted procedural process centered on a house on a nonconforming lot in Douglas. In 2008, Tusino applied for and received a building permit for a nonconforming lot he owned in Douglas. Shortly after Tusino began construction, his neighbor asked the Douglas Building Commissioner to revoke the permit. The Commission refused and the neighbor appealed to the Douglas Zoning Board. The appeal was constructively approved, thereby revoking the building permit, but Tusino appealed to Superior Court, where he was ultimately unsuccessful. Tusino declined to further appeal the Superior Court's decision.
Tusino then requested a variance, which was denied. He appealed the Board’s decision to the Land Court, where he lost on summary judgment. The Appeals Court affirm the Land Court’s decision, and Tusino did not seek further review.
During these court proceedings, Tusino had continued construction on his property. The neighbor filed a mandamus action in Land Court seeking to have the Commissioner order the house torn down, but the Land Court dismissed the action on the grounds that the Commissioner’s enforcement of the zoning bylaw is discretionary, and because the neighbor had a viable avenue of appeal – to the Zoning Board. The neighbor appealed the dismissal, and concurrently requested that the Commissioner order Tusino to demolish the house. The Commissioner refused, and the neighbor appealed to the Zoning Board, which overruled the Commissioner and ordered the house torn down. Tusino appealed pursuant to G.L. c. 40A, § 17 to the District Court, where summary judgment entered against him. He then appealed directly to the Appeals Court, rather than through the Appellate Division of the District Court.
The Appeals Court opted to address both the neighbor’s appeal of the dismissal of the mandamus action and Tusino’s appeal from the District Court in the same opinion. The Appeals Court asked the parties to address its subject matter jurisdiction over a c. 40A, § 17 appeal brought directly from the District Court, ultimately concluding that it lacked jurisdiction over Tusino’s appeal because the Appellate Division of the District Court gained equity jurisdiction over such appeals through the creation and implementation of the “one trial system.”
Moreover, despite recognizing that generally a dismissal for lack of subject matter jurisdiction is without prejudice, the Appeals Court effectively dismissed the matter with prejudice, relying on the District Court’s Appellate Division Rule 4(a) which states that an extension of time for filing a notice of appeal shall not be permitted more than 180 days after entry of judgment, even for good cause. Therefore, because Tusino failed to file a notice of appeal in the Appellate Division within 10 days of the date of final judgment in the District Court, March 31, 2015, and it is outside the 180 period, he is barred from refiling his appeal in the correct court.
As a result of appealing to the Appeals Court rather than the Appellate Division, Tusino has now lost the opportunity to contest the Board’s decision overruling the Building Commissioner’s discretion in allowing the house to remain. Presumably the house will now be removed, although given its history, further legal maneuvers may be forthcoming.
This case should serve as a warning to those who appeal a zoning board decision to the appropriate district court – an appeal must be first taken to the Appellate Division, rather than directly to the Appeals Court, and failure to follow the proper procedure may eliminate any opportunity for meaningful review of the merits of the appeal.