KAVEH ABDI v. TOWN OF WATERTOWN & Another.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-1279

KAVEH ABDI

vs.

TOWN OF WATERTOWN & another.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Kaveh Abdi, appeals from the dismissal of

his complaint pursuant to Mass. R Civ. P. 12 (b) (6), 365 Mass.

754 (1974). The facts are well known to the parties and will be

addressed as necessary in the course of our discussion.

Our review of the allowance of a motion to dismiss a

complaint under rule 12 (b) (6) is de novo. Lanier v. President

& Fellows of Harvard College, 490 Mass. 37, 43 (2022). We

accept all of the factual allegations in the complaint as true

for purposes of the motion and draw every reasonable inference

in the favor of the plaintiff. Id.

1 Kelly Donato.
This case arises from a reconstruction project the town of

Watertown undertook in 2016 on Hillcrest Circle, a cul-de-sac on

which the plaintiff owns a two-family residence. The proposed

plan included repaving the street and installing curbing and

sidewalk. Given the layout of the street and the properties

prior to this project, the plaintiff, like other residents of

Hillcrest Circle, parked his cars in his front yard. The

project required each house to have a driveway and did not allow

for front yard parking. If a curb were installed, at least

without a curb cut, front yard parking would become impossible

for the plaintiff. The plaintiff alleges that driveway parking

is not possible for him because the driveway at his property is

dangerously steep with a narrow entrance.

The plaintiff noticed that no curbs were installed in front

of his neighbors' properties, and they have continued to park on

their front yards. The plaintiff is a United States citizen of

Iranian descent and the only person residing on Hillcrest Circle

with a dark complexion.

The plaintiff asked the town's zoning enforcement officer,

Michael Mena, why the neighbors are permitted to continue front

yard parking, and how to obtain permission for himself. Mr.

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Mena told the plaintiff that his neighbors were "grandfathered,"2

and that he could seek a variance from the town. Abdi did so by

applying to the zoning board of appeals of Watertown (ZBA) for

variances on June 1, 2019, but his application was denied after

a hearing on December 18, 2019. During the hearing, ZBA member

Kelly Donato filed a motion to deny the plaintiff’s petition for

variances, and the ZBA granted her motion by a 4-0 vote. A

certified copy of the ZBA's denial was filed with the town clerk

on January 3, 2020.

The plaintiff appealed the denial to the Middlesex division

of the Superior Court Department under G. L. c. 40A, § 17, on

January 21, 2020. He did not include any argument about

discrimination. Due to the COVID-19 pandemic, a bench trial was

not held until June 17, 2022, before a judge of the Superior

Court. Almost a year later, over three years after the denial

of the variance, on March 23, 2023, the judge affirmed the

decision of the ZBA, essentially finding that it had not erred

2 As we noted in Comstock v. Zoning Bd. of Appeals of
Gloucester, 98 Mass. App. Ct. 168, 172 n.11 (2020), we generally
avoid using the term "grandfathering" to describe protection
provided to a preexisting nonconforming use. We only use it
here to accurately quote the plaintiff's account of what Mr.
Mena told him.

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in denying a variance. That decision was not appealed to this

court.3

After the bench trial but before the judge issued her

decision, in November 2022, the plaintiff discovered what he

believed to be a serious conflict of interest involving Kelly

Donato, the ZBA member who moved to deny his variance. The

plaintiff discovered Donato was a resident of Hillcrest Circle

3 We note that in the Superior Court decision in the G. L.
c. 40A, § 17, appeal from the denial of the variance, the judge
wrote, "[d]uring the trial it was disclosed that some of
[p]laintiff['s] neighbors were successful in making a showing to
the [t]own that they continuously used their front yards for
parking beginning at a time before it became disallowed under
the bylaw, and they were therefore protected as pre-existing,
nonconforming uses ("grandfathered") pursuant to G. L. c. 40A,
§ 6, and the [t]own was prevented by the statute from
prohibiting them from doing so; the [p]laintiff[] also had the
option to attempt to make such a showing to the Town, and did
not do so."
The complaint in the instant matter by contrast asserts
that even now, the plaintiff is not aware of any mechanism that
was or is available to him to assert that his property should be
protected as a preexisting nonconforming use. He asserts that
there is no evidence that the other properties qualified for
such protection, and he asserts that the zoning enforcement
officer instructed him to apply for a variance, not to challenge
the application of the new bylaw to him on the basis that
parking in his front yard was a preexisting nonconforming use.
We express no opinion as to whether the plaintiff's prior
use of his front yard for parking rendered him eligible to do so
under G. L. c. 40A, § 6, nor do we express any opinion whether
such a defense to application of the statute could be made now.
We do note that the plaintiff, who is self-represented here, was
represented by counsel at the time of the trial, when these
apparent disclosures were made, and that we have no information
why no attempt was made at that time to seek protection of the
provision that the town itself apparently claims provided
protection to all other relevant residents of Hillcrest Circle.

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until September 2016 when she sold her property to her brother-

in-law. She did not disclose that fact or recuse herself from

participation when the ZBA considered the plaintiff's

application for variances. By contrast, another ZBA member who

was a resident on Hillcrest Circle recused himself from the

plaintiff's variance matter. The plaintiff asserts that he came

to believe that Donato's actions as well as the ZBA's denial

were motivated by discriminatory animus.

On February 14, 2023, the plaintiff filed a charge of

discrimination against the town and ZBA member Donato, with the

Massachusetts Commission Against Discrimination (MCAD). On June

27, 2023, the MCAD dismissed the charge as untimely. The

plaintiff appealed that decision by filing a request for

preliminary hearing to the MCAD on September 18, 2023, and the

investigating commissioner affirmed the dismissal on October 18,

2023.

The plaintiff subsequently filed the complaint in the

instant case against the town and Donato in the Superior Court

on November 13, 2023, alleging discrimination and several other

constitutional violations.

On February 12, 2024, the town and Donato filed a motion to

dismiss the instant case. The same judge who affirmed the ZBA

decision dismissed the complaint on September 17, 2024,

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concluding that this action was time barred, and that the prior

adjudication in the Superior Court was res judicata as to this

action. The plaintiff has appealed.

Discussion. On appeal, the plaintiff argues that the

action for discrimination is neither time barred, nor barred by

principles of res judicata. He raises no argument about any of

his other claims, nor did he below. We need address only the

statute of limitations.

This action was brought on November 13, 2023. The parties

agree that each of the claims contained in the complaint has a

three-year statute of limitations. In the absence of any

tolling, then, the cause of action for discrimination must have

arisen on or after November 13, 2020, in order for this suit not

to be time barred.

The plaintiff's argument with respect to the statute of

limitations is based entirely on the date his claim accrued. He

argues that his claim is not time barred because his claim did

not accrue until at least one of two dates, each less than three

years before this action was brought.

The plaintiff argues first that his cause of action did not

accrue until the Superior Court affirmed the ZBA's action in

March of 2023. There is no merit to this contention. The acts

alleged to have been discriminatory were undertaken by the town,

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the ZBA, or its member, Kelly Donato. The decision of the judge

was not a discriminatory act, nor did it make the defendant

aware of any discriminatory act of which he was not aware prior

to that time. The cause of action for discrimination thus did

not accrue on the date of the decision.

The second date the plaintiff raises is in November 2022

when, he alleges, he discovered ZBA member Kelly Donato's

alleged conflict of interest. Although there is a conclusory

sentence in the plaintiff's brief asserting it, neither the

complaint nor the briefs before us explain how discovery of the

history of Donato's ownership and sale of the property, or of

any conflict of interest, caused a claim of discrimination to

accrue. There is no explanation of how this discovery might

have rendered the plaintiff aware of discrimination that he had

not learned of before.4

Consequently, because the plaintiff has not shown that

either of these events was the time at which the causes of

action raised in this matter accrued, they are indeed time

4 The defendant makes no argument here, nor did he below,
that this discovery caused his claim under the due process
clause to accrue, and we express no opinion on the question.

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barred, and the judgment of dismissal is affirmed.

So ordered.

By the Court (Rubin,
D'Angelo & Toone, JJ.5),

Clerk

Entered: February 2, 2026.

5 The panelists are listed in order of seniority.

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