Tusino v. Zoning Board of Appeals of Douglas

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15-P-1400 Appeals Court
14-P-1193

LOUIS C. TUSINO vs. ZONING BOARD OF APPEALS OF DOUGLAS
& another1 (and a companion case2).

Nos. 15-P-1400 & 14-P-1193.

Worcester. June 3, 2016. - August 25, 2016.

Present: Vuono, Wolohojian, & Blake, JJ.

Jurisdiction, Zoning. District Court, Jurisdiction, Appellate
Division. Zoning, Appeal. Appeals Court, Jurisdiction.
Practice, Civil, Zoning appeal, Appellate Division:
appeal, Action in nature of mandamus, Moot case. Mandamus.
Moot Question.

Civil action commenced in the Uxbridge Division of the
District Court Department on December 8, 2014.

The case was heard by David B. Locke, J., on a motion for
summary judgment.

Civil action commenced in the Land Court Department on
August 21, 2009.

1
Joseph Bylinski.
2
Joseph Bylinski vs. Guaranteed Builders, Inc., & another.
These two cases have not been consolidated for appeal. They are
factually and legally related and we therefore dispose of them
together in this opinion.
2

The case was heard by Robert B. Foster, J., on a motion for
summary judgment.

Gerald E. Shugrue for Louis C. Tusino.
Henry J. Lane for Joseph Bylinski.
Michael J. Kennefick for building commissioner of the town
of Douglas, & another.

WOLOHOJIAN, J. These two cases arise out of the

construction of a house on a nonconforming lot in Douglas. The

dispositive issue on appeal is whether we have jurisdiction over

a direct appeal from a decision of the Uxbridge District Court

in a zoning appeal under G. L. c. 40A, § 17. Concluding that we

do not, we dismiss Tusino v. Zoning Board of Appeals of Douglas,

2015-P-1400 (zoning appeal). Because our disposition of this

case renders moot Bylinski v. Guaranteed Builders, Inc., 14-P-

1193 (mandamus appeal), we dismiss it as well.

On July 8, 2008, Tusino obtained a building permit to build

a house on a lot he owns in Douglas. Construction began in

February, 2009, and Bylinski, who owns the adjacent property,

immediately thereafter asked the building commissioner to revoke

the permit. The commissioner denied that request, and Bylinski

appealed to the zoning board (board). The appeal was

constructively allowed, and the building permit was revoked. On

appeal, the Superior Court affirmed the revocation of the

permit. Tusino did not further appeal, and the Superior Court's

decision became final.
3

Tusino thereafter applied to the board for a variance.

This too was denied. He appealed the denial to the Land Court,

which entered summary judgment against him. On February 21,

2014, in a memorandum and order issued pursuant to our rule

1:28, we affirmed the Land Court's decision and it became final.

See Guaranteed Builders, Inc. v. Zoning Bd. of Appeals of

Douglas, 85 Mass. App. Ct. 1101 (2014).

Meanwhile, Bylinski had filed a mandamus action in the Land

Court seeking to require the building commissioner (who had

refused Bylinski's enforcement request) to order the house be

removed. It should be noted at this juncture that, despite the

successful challenge to his building permit and his inability to

obtain a variance, Tusino had continued construction of the

house. A judge of the Land Court dismissed the mandamus action

on the grounds that (a) the commissioner's obligation to enforce

the zoning bylaw is discretionary, (b) Bylinski had an available

alternate administrative remedy in the form of an appeal to the

board, and (c) justice did not require mandamus relief. This

dismissal is the subject of the mandamus appeal currently before

us.

After the dismissal of his mandamus complaint, Bylinski

again requested that the building commissioner order Tusino to

remove the house. She again refused. Bylinski appealed to the

board, which ordered that the building be demolished and
4

removed. Tusino then appealed that order to the Uxbridge

District Court, where summary judgment entered in Bylinski's

favor. Tusino appealed this judgment directly to us, rather

than through the Appellate Division of the District Court.

On our own initiative, we asked the parties, who have

submitted supplemental authority, whether we have subject matter

jurisdiction over a G. L. c. 40A zoning appeal brought directly

from the District Court. Tusino relies on Walker v. Board of

Appeals of Harwich, 388 Mass. 42 (1983) (Walker), for the

proposition that we have subject matter jurisdiction. Tusino is

indeed correct that Walker held that appeals from District Court

determinations in cases decided under G. L. c. 40A, § 17, were

to be made directly to the Appeals Court. Id. at 50. The

conclusion in Walker rested in large part on the fact that the

Appellate Division did "not have a general grant of equity

jurisdiction and . . . actions under G. L. c. 40A, § 17, are

clearly equitable in character." Id. at 48. At the time Walker

was decided, the District Court had only limited equity

jurisdiction. See G. L. c. 218, § 19C.

After Walker, however, the statutory landscape changed with

the Legislature's extension of equity jurisdiction to the

district courts. The change occurred in stages as the district

courts in the various counties became subject to the

Legislature's creation of a "one trial system." The reform
5

began with a pilot program in Norfolk and Middlesex counties.

St. 1996, c. 358.3 "The system proved successful . . .[, and]

[i]n August, 2004, the Legislature approved the one trial system

and, with certain changes, made it applicable to all divisions

of the District and Boston Municipal Court Departments.

St. 2004, c. 252." Sperounes v. Farese, 449 Mass. 800, 803

(2007). "Because the Appellate Division is a part of the

District Court, the equitable jurisdiction granted by the

[statutes] necessarily extends to it." Herman v. Home Depot,

436 Mass. 210, 215 (2002) (Herman), citing Buchannan v. Meisner,

279 Mass. 457, 459-460 (1932).

Walker was effectively superseded by the subsequent

legislation we have outlined above. The creation of the one

trial system -- with its grant of equity jurisdiction to the

district courts and Appellate Division -- led the Supreme

Judicial Court to conclude that the Appellate Division has

primary jurisdiction to hear appeals of G. L. c. 93A

injunctions. Herman, supra. We see no principled reason why

the result would, or should, be different in G. L. c. 40A, § 17,

3
"[D]istrict courts in Norfolk and Middlesex counties shall
have the same equitable powers and jurisdiction as is provided
for the superior court pursuant to chapter two hundred and
fourteen of the General Laws for the purpose of the hearing and
disposition of such cases." St. 1996, c. 358, § 3.
6

appeals. Accordingly, the zoning appeal is dismissed for lack

of subject matter jurisdiction.

A dismissal for lack of subject matter jurisdiction, such

as we have here, is ordinarily without prejudice because it is

"typically not an adjudication on the merits." Abate v. Fremont

Inv. & Loan, 470 Mass. 821, 836 (2015). That said, as a

practical matter, the underlying order in the zoning appeal is

final. Tusino was required (but failed) to file notice of his

appeal within ten days of the final judgment, which entered on

March 31, 2015.4 Dist./Mun.Cts. Appellate Division Appeal Rule

4(a) (2013). Although the trial court has discretion to extend

the time upon a showing of "excusable neglect or other good

reason, . . . in no event shall the court permit the filing of a

notice of appeal later than 180 days after entry of the judgment

or post-judgment order of which appeal is sought."

Dist./Mun.Cts. Appellate Division Appeal Rule 4(c). In short,

Tusino is now foreclosed from pursuing his appeal in the

appropriate forum, the Appellate Division, and therefore the

District Court's order affirming the board's demolition order is

final. See LeBlanc v. Logan Hilton Joint Venture, 463 Mass.

316, 327 (2012) (failure to timely appeal precludes subsequent

relitigation of claim under principles of res judicata).

4
Tusino's notice of appeal to the Appeals Court was filed
on April 16, 2015.
7

Because the board's demolition order is final, the mandamus

appeal is moot; the relief Bylinski seeks in the mandamus appeal

has already been obtained in the zoning case.5 See Williams v.

Charles, 84 Mass. App. Ct. 328, 339 (2013) (dismissing appeal as

moot where relief already otherwise obtained).

For the reasons set out above, the zoning appeal is

dismissed for lack of subject matter jurisdiction and the

mandamus appeal is dismissed as moot.

So ordered.

5
Bylinski agreed at oral argument that the relief he seeks
in the mandamus appeal (i.e., an order requiring the building
commissioner to issue a demolition and removal order) is the
relief he has already received from the board.