Zoning – Swimming pool – Retaining wall

Listen to this article

Where motions to dismiss have been filed, some of the claims brought by the plaintiff should be dismissed with prejudice on res judicata grounds in light of a final judgment entered in Superior Court in 2022, while the plaintiff’s claims of building code violations are subject to dismissal, without prejudice, for lack of subject matter jurisdiction.

“James W. Lewis filed his complaint (complaint or Compl.) on June 4, 2025, naming as defendants Sean and Danielle Kelleher (the Kellehers); Peter James and Christine James (the Jameses); Dominick Pangallo, as Mayor of the City of Salem; Stavroula Orfanos, as Building Commissioner of the City of Salem; Thomas St. Pierre, as Building Commissioner of the City of Salem (together with Pangallo and Orfanos, the municipal defendants); John Bennet, as Regional Building Commissioner; and Thomas G. Gatzunis, as Commissioner of the Department of Public Safety, Commonwealth of Massachusetts (together with Bennet, the state defendants). …

“The Complaint names nine defendants: the Kellehers, the Jameses, the municipal defendants, and the state defendants. The claims against all defendants may be dismissed on the grounds of either claim preclusion or lack of subject matter jurisdiction. …

“The Kellehers and the municipal defendants argue that the complaint should be dismissed because all of Mr. Lewis’s claims were brought and adjudicated in a previous action in the Superior Court, James W. Lewis v. Rebecca Curran, et al., no. 1677CV01580 (the Superior Court action or Lewis I). In that action, Mr. Lewis asserted that a pool and retaining wall built by the Kellehers failed to meet necessary zoning and permitting requirements. Complaint, Lewis I. Mr. Lewis named as defendants the Kellehers, the members of the City of Salem Zoning Board of Appeals (the ZBA), and Thomas St. Pierre, in his capacity as Building Commissioner. … The Superior Court granted summary judgment against Mr. Lewis on February 28, 2020, holding that ‘[t]he Salem ZBA’s decision is not based on a legally untenable ground and is not unreasonable, whimsical, capricious, or arbitrary.’ … The remaining claims were tried before a jury, and a final judgment was entered on September 26, 2022.

“Mr. Lewis’s claims against the Kellehers and the municipal defendants are precluded by principles of res judicata. …

“… Mr. Lewis’s claims against the Kellehers and the ZBA in the Superior Court action arose from the construction of a swimming pool and retaining wall on the Kellehers’ property, and potential zoning and permitting violations associated therewith. … The claims in this case arise from the same facts: construction of the pool and retaining wall, potential violations of the building code and zoning requirements thereby, and the city’s ensuing enforcement actions. …

“The Land Court is a court of limited jurisdiction. … In particular, the Land Court has no authority to enforce the building code. … Mr. Lewis’s claims of building code violations must therefore be dismissed.

“Mr. Lewis’s claims of failure to enforce the building code or otherwise improper behavior by the state defendants must be dismissed for two other reasons. First, the Land Court has no jurisdiction over general negligence or tort claims. … Second, building code and zoning code enforcement decisions are discretionary functions to which sovereign immunity applies — even if this court could adjudicate claims of wrongdoing, the state defendants would be immune from civil suit. …

“Generally, dismissals for lack of subject matter jurisdiction are without prejudice. Abate v. Fremont Inv. & Loan, 470 Mass. 821, 836 (2015). The claims against the state defendants will be dismissed without prejudice. …

“Mr. Lewis names the Jameses as defendants in the complaint, but it is not clear what claims he asserts against them. He notes that, in 2023, the Jameses altered the grade of their property at 18 Linden Avenue and erected a retaining wall, allegedly in violation of city, state, and building regulations. Assuming that Mr. Lewis is alleging a building code violation, this court lacks jurisdiction over that claim for the reasons given above. Assuming that he is alleging a zoning violation, this court also lacks jurisdiction, because Mr. Lewis has not yet followed the process laid out in G.L.c. 40A, §7, to enforce zoning ordinances. Section 7 requires Mr. Lewis to first request zoning enforcement from the city. If the city refuses to enforce the bylaw, he may lodge an administrative appeal with the ZBA. Only if the ZBA affirms the refusal to enforce will Mr. Lewis be allowed to seek judicial review of the ZBA’s decision. G.L.c. 40A, §§8, 15, 17. Mr. Lewis followed this process with regard to the pool and retaining wall at issue in the Superior Court case, but does not appear to have done so for the retaining wall and regrading performed at 18 Linden Avenue in 2023.

“Mr. Lewis’s claims against the Jameses will be dismissed without prejudice. …

“For the foregoing reasons, the motions to dismiss are allowed. The claims against the Kellehers and the municipal defendants are dismissed with prejudice. The claims against the state defendants and the Jameses are dismissed without prejudice.”

Lewis v. Kelleher, et al. (Lawyers Weekly No. 14-069-25) (9 pages) (Foster, J.) (Essex Land Court) (Docket No. 25 MISC 000354) (Dec. 17, 2025).

Click here to read the full text of the opinion.