COMENDUL v. TOWN OF NORFOLK (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendants appeal from a judgment of the Superior Court, holding them in civil contempt of an order of the Superior Court entered on January 25, 2018 (January 25 order). We reverse.

To constitute civil contempt, “we require that a civil contempt finding be supported by clear and convincing evidence of disobedience of a clear and unequivocal command.” Birchall, petitioner, 454 Mass. 837, 838-839 (2009). The January 25 order forming the basis for the plaintiff's complaint for contempt is as follows:

“Any and all entertainment licenses issued by the [t]own of Norfolk to Michael Brogan with respect to any and all barrel races and/or shooting events to be conducted at or on the Run and Gun Ranch in Norfolk, Massachusetts[,] are null and void, effective immediately. If a renewed application is submitted to the [t]own of Norfolk for an entertainment license to conduct any such race or event at the Run and Gun Ranch in the future, the [t]own shall consider and act upon such renewed application, in due course, in conformance with this [c]ourt's [d]ecision and [o]rder, dated January 25, 2018, and the [t]own's [z]oning [b]ylaws, as appropriate.

The January 25 order entered as part of a certiorari judgment on the plaintiff's complaint for review of an entertainment license issued by the defendant selectmen. Following the entry of that judgment, the town building commissioner issued a cease and desist order, ordering Brogan to cease and desist from conducting “Run and Gun barrel races” on his property. The cease and desist order advised Brogan that he had the right to appeal it to the Norfolk zoning board of appeal (ZBA). Brogan appealed, and the ZBA thereafter held a hearing and issued a decision, concluding that (if conducted on a more limited scale) “run and gun barrel races” would be incidental to the agricultural use of Brogan's property, and therefore permissible. The plaintiffs thereafter commenced an appeal of the ZBA decision, under G. L. c. 40A, § 17, and filed the present action for contempt.⁴

In her memorandum of decision holding the defendants in contempt, the judge described the contumacious act as the decision of the ZBA to disregard the January 25 order of the Superior Court, which declared null and void all entertainment licenses issued for run and gun barrel races on Brogan's property. As a threshold matter, we do not consider the ZBA's consideration of Brogan's appeal from the cease and desist order to stand in violation of the January 25 order. By its terms, the January 25 order expressly contemplated the submission by Brogan of future applications for entertainment licenses, and the consideration of such applications by the defendants.

In addition, in his memorandum of decision, the Superior Court judge who considered the certiorari complaint emphasized that the number of events conducted by Brogan precluded a contention that they are incidental to a primary agricultural use; instead, in his view, the barrel race events had become so numerous as to form Brogan's primary use of his property. The ZBA's decision constituted its interpretation of the restrictions imposed by the January 25 order, and was subject to appeal. It did not purport to reinstate any of the entertainment licenses declared null and void by the January 25 order, and attempted (whether correctly or incorrectly) to guide the parameters of future applications Brogan might submit with an expectation for favorable action consistent with the zoning laws.

At a more fundamental level, however, the contempt judgment cannot stand because the ZBA, and its members, were not parties to the certiorari action, and are not parties to the present contempt action. Neither the contempt judge's memorandum, nor the plaintiff's argument, describes any act by any of the defendants that constitutes clear and convincing evidence of disobedience of the January 25 order.

The contempt judge's memorandum of decision on the defendants' motion for reconsideration or clarification of the contempt judgment suggests an alternative contumacious act: the suggestion to Brogan that he could appeal the cease and desist order to the ZBA, thereby (in the view of the contempt judge) authorizing the ZBA to overrule a determination of a question of law by the certiorari judge. However, by ordering Brogan to cease and desist from conducting barrel races on his property the cease and desist order plainly did not violate the January 25 order (and, like the ZBA, the building commissioner was not a party to the certiorari action and is not a party to this contempt action). Moreover, the right of appeal to the ZBA from the cease and desist order is a creature of statute, not a contumacious invention of the defendants. See G. L. c. 40A, § 13. The ZBA's decision did not direct the issuance of any permits for barrel races, and was itself subject to judicial review. In short, the record is devoid of clear and convincing evidence of disobedience of a clear and unequivocal command contained in the January 25 order. See Birchall, 454 Mass. at 839.

Judgment reversed.

FOOTNOTES

4.   Following entry of the judgment of contempt, the plaintiffs apparently voluntarily dismissed their § 17 appeal.