Creating Thriving Communities Through Land Use And Real Estate Law

Kline House in Truro is One Step Closer to Demolition

The seemingly never-ending litigation involving what is still known as the Kline house in Truro moved one step closer to final resolution when the Appeals Court recently issued a decision upholding a Land Court decision concerning revocation of building permits and the Zoning Board’s subject matter jurisdiction.

This is the second Appeals Court decision involving this matter.  The litigation commenced after Donald Kline began construction on a large single-family home in accordance with two building permits issued by the Truro Building Commissioner.  The permits were issued under the Truro zoning bylaw’s definition of alteration – Kline proposed to convert the existing single-family home into a “habitable studio” and construct a new 8,000+ square foot summer home, situated 200 feet away from location of the preexisting structure.  A number of neighbors appealed the issuance of the building permits, and then the Zoning Board decision affirming the issuance of the permits, claiming that the construction of the new home could not be an “alteration” under any reasonable reading of the bylaw; they also challenged the impact the development would have on access to their properties, the only access for both the neighbors and the Kline properties being a narrow, winding road.  The neighbors also alleged that the structure marred the landscape that may have inspired American painter Edward Hopper, who owned a house next door in the 1900s.  Despite the appeals, Kline began (and completed) construction of the home, notwithstanding the judge’s warnings that such construction was imprudent.

In a 2010 summary judgment order the Land Court overturned the decision of the Zoning Board and remanded the matter to the Board, finding that the permits were for an “alteration” under the Bylaw but that “the Building Commissioner was incorrect when he determined that the Kline Project would not produce an increase in the nonconforming nature of the existing structures on the Kline Property.”  Schiffenhaus v. Kline, 18 LCR 223, 230 (Mass. Land Ct. 2010).  Kline appealed, and the Appeals Court affirmed the Land Court decision, albeit on different grounds from those relied on by the Land Court judge, finding that the building commissioner abused his discretion in “characteriz[ing] the new house as an alteration of the original one” because “an entirely new building in a different location, which is also completely different in appearance and more than four times the size of its predecessor, cannot correctly be deemed an ‘alteration’ of the original.”  Schiffenhaus v. Kline, 79 Mass. App. Ct. 600, 604 (2011).  The Appeals Court remanded the matter to the Board for further proceedings.  The homeowner, by this time represented by Landreth as trustee, requested further appellate review but the Supreme Judicial Court denied the petition.

After entry of the Appeals Court decision, the private parties settled the matter, and filed a motion in this court to vacate the remand, or to remand to the Land Court for dismissal, on the grounds that the neighbors were no longer “persons aggrieved” and therefore lacked standing to bring the original appeal, thereby depriving the Courts of jurisdiction.  The Zoning Board opposed this motion, which was denied not on the merits but because the matter had already been fully adjudicated – the case was over.

Nonetheless, the neighbors informed the Board that they were withdrawing their request for enforcement of the Zoning Bylaw.  The Board held a remand hearing in 2011 in accordance with the Court’s order, at which hearing they voted to order the Building Commissioner to revoke the building permits for the Kline house.  Landreth appealed this order to the Land Court, arguing that there was no aggrieved party for purposes of appeal under the Zoning Act and therefore the Board lacked jurisdiction to revoke the building permits.

On cross-motions for summary judgment a different judge of the Land Court upheld the Board’s decision.  Landreth v. Fromson, 22 LCR 11 (Mass. Land Ct. 2014).  The Court found that the Board had no choice but to hold a remand hearing in accordance with the Appeals Court’s decision and the “determination that the project does not constitute an alteration,” without a need to consider the standing of the original appellants.  Landreth appealed to the Appeals Court yet again; a decision recently entered under the Appeals Court’s Rule 1:28.

Although Landreth argued that the Zoning Board’s jurisdiction ceased to exist when the neighbors informed the Board that they were no longer “aggrieved” pursuant to the settlement, the Appeals Court concluded that the rule that “[a] court is not ousted of jurisdiction by subsequent events — jurisdiction once attached is not impaired by what happens later” applies equally to zoning boards.  The Court also noted that “the board was required to fulfill the order of the Appeals Court by ordering the building commissioner to revoke the building permits, notwithstanding the private parties’ agreement to resolve the underlying zoning issue,” and that the Board could have been held in contempt had it failed to act in compliance with the Court’s earlier order.

There are undoubtedly going to be further permutations in this case – we’ll be sure to keep you informed!