Written by Michael J. O’Neill, Esq.
In a clear, well-reasoned opinion deciding the case of Stevens, Trustee v. Zoning Board of Appeals of Bourne, No. 19-P-248 (June 19, 2020), the Appeals Court (Green, C.J.) held that a settlement agreement between the Town’s selectmen and a property owner resolving a Land Court action did not bind an abutter who was not party to the litigation.
Consequently, the abutter was entitled to use all procedures available under G. L. c. 40A to challenge a use as a violation of the Bourne Zoning Bylaw.
The case of Morganelli v. Building Inspector of Canton, 7 Mass. App. Ct. 475 (1979), has been a leading case on the application of res judicata in the zoning context, and was relied upon by the property owner. The Appeals Court in Stevens confronted Morganelli head-on, distinguishing it on several procedural grounds.
In Morganelli, an abutter brought an action for mandamus against the building inspector, challenging a building permit for construction on a non-conforming lot. The question of whether a building could be constructed on the lot had been the subject of a prior action by a former owner of the lot and was finally adjudicated to allow construction. Id. at 408. The abutter was not a party to the prior action.
In Morganelli, the Appeals Court concluded that the prior action was, in substance, an action against the citizens of Canton, in which the building inspector participated as the proper enforcing officer, and the interests of all the citizens of Canton, including the abutter, were represented.
The Appeals Court in Stevens distinguished Morganelli on the basis that the prior case in Morganelli was resolved by an adjudication, whereas the prior case in Stevens was resolved by an agreement.
As a “threshold matter” in Stevens, the Appeals Court ruled that the agreement by the Selectmen settling the Land Court case amounted to the granting of zoning relief which the Selectmen had no authority to grant. The Selectmen did not have authority to amend the zoning bylaw or grant a use variance.
The Appeals Court in Stevens further ruled that any decision or order of the building inspector pursuant to a settlement agreement would be subject to the notice and hearing requirements of G.L. c. 40A, which cannot be bypassed via a settlement agreement. Most practitioners are aware that a remand of a zoning appeal to a board of appeals should include provision for notice and hearing, pursuant to G.L. c. 40A.
Furthermore, the Appeals Court noted that the abutter in Stevens moved to intervene in the Land Court case, but his motion was denied. “Unlike the plaintiffs in Morganelli, the abutters in the present case had no opportunity in the Land Court action to ensure that their interests were protected.”
Morganelli is a familiar, widely cited precedent. It has been a major obstacle to litigants challenging land use where there has been prior litigation in which the building inspector was a party. Stevens provides a new roadmap to litigants seeking to distinguish Morganelli.
Specifically, although not overruling Morganelli, the Appeals Court in Stevens illustrates to local boards how to settle a zoning case in court correctly. The fundamental lesson is that the Board of Selectmen cannot, by agreement with a landowner, divest abutters of rights to bring challenges pursuant to G.L. c. 40A, nor can any agreement eliminate the requirements for notice and hearing pursuant to G.L. c. 40A. Any remand must be to the board having jurisdiction.
The decision further suggests how to settle other types of appeals from local land use boards such as the planning board, board of health, conservation commission, historic commission, public works, road commissioner, water division, sewer authority, and more. Stay tuned.
The Appeals Court’s decision in Stevens ultimately reinforces the fundamental legal principle that a settlement agreement does not generally bind those who are not parties to it, so they are free to utilize other remedies for what they assert to be legal violations.