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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-P1193 (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constructively allowed, and the building permit was revoked.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.