TIMOTHY BURKE, Trustee v. ZONING BOARD OF APPEALS OF DENNIS.

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-1021

TIMOTHY BURKE, trustee,1

vs.

ZONING BOARD OF APPEALS OF DENNIS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After the building commissioner for the town of Dennis

declined to issue a building permit, the plaintiff, Timothy

Burke, as trustee of the TVB Trust, unsuccessfully challenged

that decision before the town's zoning board of appeals (board).

The plaintiff appealed the board's decision to the Land Court by

filing a complaint against the board pursuant to G. L. c. 40A,

§ 17. A judge entered summary judgment for the board. The

plaintiff now appeals, and we affirm.

Background. On October 24, 1973, the town amended its

zoning bylaws and increased the minimum lot area in its R-40

Zoning District from 7,500 square feet to 20,000 square feet.

1 Of the TVB Trust.
Forty-three years later, on October 13, 2016, the plaintiff

bought a non-conforming, unimproved lot containing 7,650 square

feet within the R-40 Zoning District. On June 2, 2020, the

plaintiff filed an application for a building permit. The

building commissioner denied the application, and the plaintiff

appealed that decision to the board. On March 3, 2021, the

board issued its decision indicating that it unanimously upheld

the decision of the building commissioner.

On March 19, 2021, the plaintiff filed his complaint and

raised two claims: (1) the board's decision was legally

unsupportable, arbitrary, and capricious, and (2) the board

issued a special permit allowing him to build on the property.

The judge allowed the board's motion for summary judgment,

affirmed the board's decision, and further concluded that the

board did not issue a special permit.

Discussion. Our review of an allowance of a motion for

summary judgment is de novo. Blake v. Hometown Am. Communities,

Inc., 486 Mass. 268, 272 (2020). We must view the record

evidence, and all reasonable inferences that can be drawn

therefrom, in the light most favorable to the nonmoving party,

here the plaintiff. Id. Summary judgment is appropriate only

where, viewing the record in that light, there is no genuine

issue of material fact, and the moving party is entitled to

judgment as a matter of law. Mass. R. Civ. P. 56 (c), as

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amended, 436 Mass. 1404 (2002). In the context of a zoning case

decided by summary judgment, the judge "does not engage in fact

finding," so "we do not give deference to the judge's decision."

81 Spooner Rd., LLC v. Zoning Bd. of Appeals of Brookline, 461

Mass. 692, 699 (2012), citing Albahari v. Zoning Bd. of Appeals

of Brewster, 76 Mass. App. Ct. 245, 248 (2010).

1. Bylaw amendment. The plaintiff bases his claim on

section 1.9 of the town's zoning bylaws adopted in 1973 that

expressly replaced the existing bylaws "but shall not affect

such rights or duties that have matured." Based on this

language, the plaintiff contends that because the property

satisfied the minimum lot requirement prior to the effective

date of the 1973 amendment, his right to build had "matured"

before the amendment. We disagree.

The Legislature permits cities and towns to "adopt[] and

from time to time change[] by amendment" zoning ordinances and

bylaws. G. L. c. 40A, § 5. The 1973 amendment at issue here

did exactly that by increasing the minimum lot size. We discern

nothing in the summary judgment record to suggest that the

amendment did not apply to the property at issue. See

Leominster Materials Corp. v. Board of Appeals of Leominster, 42

Mass. App. Ct. 458, 461 (1997) ("court cannot read into the

ordinance an unexpressed exception"). The plaintiff's

reasoning, that his rights were forever fixed by the lot size

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requirements of the superseded bylaw, is simply at odds with the

power of the municipality to create uniform districts and to

amend its bylaws. See G. L. c. 40A, § 4, 5. See also SCIT,

Inc. v. Planning Bd. of Braintree, 19 Mass. App. Ct. 101, 107

(1984) ("basic assumption underlying the division of a

municipality into zoning districts is that, in general, each

land use will have a predictable character and that the uses of

land can be sorted out into compatible groupings").

His contention is also at odds with the plain language of

section 1.9. Nothing in the record suggests that the

plaintiff's particular "rights or duties" somehow matured

through circumstances existing in 1973 when the amendment became

effective. At that point in time, no "rights or duties" beyond

the title of a prior owner existed: the plaintiff did not own

the property, no building permit had been requested, no building

permit had been issued, and no construction of a dwelling had

commenced. Thus, forty-three years later when the plaintiff

acquired title to the property, he did not also acquire

ancillary "rights or duties," that had "matured" as contemplated

by section 1.9. See 81 Spooner Rd., LLC, 78 Mass. App. Ct. 233,

245 n. 29 (2010) ("local zoning bylaw must be reasonably

construed, and must not be interpreted in a manner that would

produce an absurd result"). Consequently, summary judgment

properly entered for the board.

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We also discern nothing in the board's decision that is

unreasonable, arbitrary, whimsical, or capricious. The

plaintiff asks us to look beyond the four corners of the

decision and the governing law and consider the board's "long

history of making zoning decisions which advanced the interests

of some but excluded nonresidents." He contends that residents

have successfully obtained variances from the lot size

limitations where nonresidents have failed. The case before us,

however, is not an appeal from the denial of a variance; it is

an appeal from the denial of a request to build as a matter of

right. As the board conceded at oral argument, discretionary

zoning relief may, theoretically, be available to the plaintiff

through a dimensional variance, but he has not requested one.

Therefore, the differential treatment claim that the plaintiff

is now raising in connection with variances is not properly

before us, and we decline to consider it.

We reject the plaintiff's alternative argument that the

board actually issued a special permit after all. He relies on

a line in the board decision, clearly boilerplate and added in

error, "[t]his Special Permit shall lapse if substantial use or

construction has not commenced without good cause within one

year from the date issued." The line is entirely inconsistent

with the remainder of the text in the decision as well as the

unanimous vote of the board. Such an evident clerical error

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does not amount to a conscious decision to reverse direction and

issue a special permit (that was not even requested). See

Burwick v. Zoning Bd. of Appeals of Worcester, 1 Mass. App. Ct.

739, 742 (1974).

2. Discovery. The scope of permissible discovery is

governed by Mass. R. Civ. P. 26 (b), 365 Mass. 772 (1974). In

general, "[p}arties may obtain discovery regarding any matter,

not privileged, which is relevant to the subject matter involved

in the pending action." Mass. R. Civ. P. 26 (b) (1). However,

"[t]he conduct and scope of discovery is within the sound

discretion of the judge." Cardone v. Boston Reg'l Med. Ctr.,

Inc., 60 Mass. App. Ct. 179, 191 (2003), quoting Solimene v. B.

Grauel & Co., KG, 399 Mass. 790, 799 (1987). The plaintiff

"must show that the denial of his motion to compel discovery

constituted such an abuse of discretion." Cardone, 60 Mass.

App. Ct. at 191.

We discern no abuse of discretion here where the judge

placed reasonable limitations on wide-ranging discovery

requests. The plaintiff sought all records of approved

residential construction on lots of 7,500 square feet or less

from October 1, 1973, until December 10, 2021. After a hearing,

the judge ordered the board to produce any of its decisions

relating to section 1.9 from the effective date of the bylaw

amendment in 1973 to 1980. The judge denied the motion to the

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extent it sought additional records, concluding that the board

"[has] already produced a substantial number of documents and

the request for documents beyond this timeframe or scope is

overbroad, unduly burdensome (requiring substantial manual labor

by the Town staff) and speculative." The judge further

concluded that the "[p]laintiff has failed to provide a

reasonable explanation or any evidentiary support as to why

documents beyond this timeframe are reasonably calculated to

lead to the discovery of admissible evidence in light of the

limited issue before the court in this case." Especially in the

absence of demonstrated relevance, the judge acted well within

her discretion by limiting discovery.

3. Motion to amend complaint. The judge denied a motion

to amend the complaint that "proposed additional facts, [which

did] not appear to be relevant, and may be misleading, as they

related to the standard for a variance while the plaintiff seeks

to build as of right." We review the denial of a motion to

amend a complaint for abuse of discretion. See Murphy v.

I.S.K.Con. of New England, 409 Mass. 842, 864 (1991). While

leave to amend should be "freely given when justice so

requires," Mass. R. Civ. P. 15 (a), 365 Mass. 761 (1974), such

leave may be denied where there is undue delay, undue prejudice

to the opposing party, or futility in the amendment. Mathis v.

Massachusetts Elec. Co., 409 Mass. 256, 264 (1991). We discern

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no abuse of discretion where the plaintiff sought to add

allegations related to dimensional variances granted by the

board in other cases and the granting of a building permit that

did not involve the board.

4. Motion to strike. Finally, the plaintiff contends that

the judge erred in allowing the board's motion to strike an

exhibit containing a chart prepared by the plaintiff and

summarizing board decisions on variance applications issued

following the 1973 bylaw amendment, as well as an exhibit

containing a 1993 building permit that purportedly issued in

connection with the property. Here, again, the judge acted

within her discretion in striking matters that were not relevant

to the case before her. See Mass. R. Civ. P. 12 (f), 365 Mass

754 (court may strike any "redundant, immaterial, impertinent,

or scandalous matter"). The chart summarizing decisions on

variance applications was irrelevant to the determination of

whether the property met the minimum lot size requirement. See

Warren v. Board of Appeals of Amherst, 383 Mass. 1, 9 (1981),

citing Charter v. Board of Appeals of Milton, 348 Mass. 237,

241-243 (1964) ("The factual and legal basis on which to judge

the propriety of the board's grant or denial of a variance . . .

is not the same as it would be if the original application had

been for a permit as of right"). Similarly, the 1993 building

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permit did not issue through board action and did not bear any

connection to the issues in the case.

The board's request for attorney's fees and costs is

denied.

Judgment affirmed.

By the Court (Singh,
D'Angelo & Hodgens, JJ.2),

Clerk

Entered: August 19, 2025.

2 The panelists are listed in order of seniority.

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