Opinion
No. 12–P–214.
2012-11-21
BROCKTON POWER COMPANY LLC v. CITY OF BROCKTON & others.
By the Court (KANTROWITZ, SIKORA & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendants appeal, claiming error in a decision of a judge of the Land Court permitting the siting of a public utility switchyard building in a lot separate from the electrical power-generating facility that it services. The defendants maintain that the judge erred by (1) not deferring to the interpretation made by the zoning board of appeals of Brockton (board), and (2) determining that a switchyard building is a public utility service and structure allowed as a principal use in Brockton's I–3 zoning district. We affirm.
Background. Brockton Power Company LLC (Brockton Power) proposed to construct an electrical power-generating facility in the city of Brockton (city). On a separate lot 3,000 feet away, Brockton Power also proposed to build a switchyard building to interconnect the new power-generating facility with the regional distribution system in the city. Both the proposed power-generating facility and the switchyard building would be located in the heavily industrialized I–3 zoning district. The building inspector denied the permit to build the switchyard building on the subject property because he determined it did not fall under any of the uses allowed in the I–3 district, which requires an accessory structure to be built on the same lot as its principal structure. The board affirmed the decision. The Land Court judge, in turn, reversed, and held that the switchyard building is a public utility service and structure allowed as a principal use under separate provisions of the zoning code in the city's I–3 district. Discussion. Section 27–61 of the zoning code defines accessory use or structure as a “use or structure subordinate to the principal use of a building on the same lot and serving a purpose customarily incidental to the use of the principal building, including swimming pools, tennis courts and other recreational uses, but expressly excluding pay telephones.” Such structures must be on the same lot as the principal building.
The defendants argue that the switchyard building does not fall within the principal use category of public utility services and structures permitted by right in the I–3 district, as discussed in § 27–33(1)(p) of the zoning code. Instead, they argue that the switchyard building is an accessory structure because it serves “a purpose customarily incidental to the use of the principal building.” As such, the definition of “accessory use or structure” requires an accessory structure, like the switchyard building, to be on the same lot as the principal building.
Conversely, Brockton Power argues that pursuant to §§ 27–35(1)(a), 27–34(1)(a), and 27–33(1)(p) of the zoning code, the switchyard building falls under the public utility services and structures category. Brockton Power contends that as part of the public utility services and structures category it is a principal permitted use allowed by right in the I–3 zoning district. We agree with Brockton Power's arguments.
The defendants concede that the switchyard building has a public utility purpose.
When determining a question of statutory interpretation, the reviewing court must first look to “the statutory language itself [as] the principal source of insight into the legislative purpose.” Commonwealth v. Smith, 431 Mass. 417, 421 (2000), quoting from Registrar of Motor Vehicles v. Board of Appeal on Motor Vehicle Liab. Policies & Bonds, 382 Mass. 580, 585 (1981). The terms are defined according to their “ordinary and approved usage.” Chandler v. County Commrs. of Nantucket County, 437 Mass. 430, 435 (2002), quoting from Hanlon v. Rollins, 286 Mass. 444, 447 (1934).
“Incidental” as used in connection with accessory uses has been held to mean that the use must not be “the primary use of the property but rather one which is subordinate and minor in significance.” Harvard v. Maxant, 360 Mass. 432, 438 (1971). Moreover, the dictionary meaning of “incidental” is “being likely to ensue as a chance or minor consequence.” Webster's Third New International Dictionary 1142 (2002). See Boston Professional Hockey Assn. v. Commissioner of Rev., 443 Mass. 276, 287 (2005) (one can derive ordinary meaning of word from dictionary definition).
We start with the observation that the zoning code is mainly addressed to situations wherein homeowners wish to build a swimming pool, a tennis court, or the like. These uses are plainly incidental and are governed by the zoning code. The word “incidental” as used in connection with accessory uses does not adequately encompass the switchyard building's operation. The switchyard building will interconnect the new power-generating facility and overhead electric circuit with two existing transmission lines and the regional transmission grid. We cannot conclude that the switchyard building, which plays an integral role in the transmission of energy from one conduit to another, is incidental. Unlike a house and tennis court, the former not needing the latter to function as a dwelling, the power-generating facility cannot function without the switchyard building (and vice versa). The Land Court judge's comparison of the switchyard building to a sewerage distribution network further illustrates the point. During the motion hearing, the defendants acknowledged that a stand-alone pumping station to move sewerage from toilets in homes to the treatment plant would fall under a principal use.
The case law that the defendants presented deals with accessory uses in agricultural or residential zones.
We agree with the judge's holding that the proposed switchyard building falls under the allowed use of public utility services and structures, and is therefore a principal use. The switchyard building, viewed in its totality, is a public utility service and structure designated in the zoning code as a permitted use. That it is interconnected with another principal use on a separate lot does not render it an accessory and is of no import. It is precisely because public utilities require distribution networks that the zoning code provides that public utilities and services are a public use. “Terms used in a zoning by-law should be interpreted in the context of the by-law as a whole and, to the extent consistent with common sense and practicality, they should be given their ordinary meaning.” Hall v. Zoning Bd. of Appeals of Edgartown, 28 Mass.App.Ct. 249, 254 (1990). The defendants' construction would, in effect, read §§ 27–35(1)(a), 27–34(1)(a), and 27–33(1)(p) out of the zoning code. In the circumstances of this case, the judge correctly found that the board's determination was based on a ground that was “legally untenable.” Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass.App.Ct. 68, 72 (2003) (citation omitted). The judge's interpretation implements the familiar canon that, if multiple provisions of a scheme relate to the same subject matter, a court shall construe them harmoniously so as to give each provision practical effect and to avoid unnecessary contradiction. See Board of Educ. v. Assessor of Worcester, 368 Mass. 511, 513–514 (1975).
For these reasons as well as for substantially those in the brief of Brockton Power and those provided by the judge below, we affirm.
Judgment affirmed.