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Boutin v. Zoning Bd. of Appeals of Plymouth

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Apr 19, 2012
11-P-1326 (Mass. Apr. 19, 2012)

Opinion

11-P-1326

04-19-2012

SAMUEL BOUTIN v. ZONING BOARD OF APPEALS OF PLYMOUTH & another.


NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff appeals from an adverse Superior Court decision, made on cross motions for summary judgment, that affirmed a decision of the zoning board of appeals of Plymouth (board), which in turn affirmed a decision of the director of inspectional services (director). At issue is a zoning permit issued to defendant Augustino Diodato for purposes of building a two-story single-family home on a property located at 163 Bay Shore Drive and 232 Rocky Hill Road in Plymouth. For the reasons stated in the judge's decision, we are unpersuaded by the plaintiff's arguments, and affirm.

'[A]lthough the judge who reviews a zoning board decision pursuant to G. L. c. 40A, § 17, typically finds the facts de novo, see, e.g., Josephs v. Board of Appeals of Brookline, 362 Mass. 290, 295 (1972), a judge who decides the case on motions for summary judgment engages in no fact finding at all. Instead, the judge looks at the record to determine whether there is any genuine issue of material fact and, if not, whether the evidence, viewed in the light most favorable to the nonmoving party, . . . shows that the moving party is entitled to judgment as a matter of law. See Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002); Barrasso v. Hillview W. Condominium Trust, 74 Mass. App. Ct. 135, 137 (2009).' Albahari v. Zoning Bd. of Appeals of Brewster, 76 Mass. App. Ct. 245, 248-249 (2010). Our review is de novo. See Miller v. Cotter, 448 Mass. 671, 676 (2007). The plaintiff first contends that the judge erred when he affirmed the board's determination that the grandfathering effect of G. L. c. 40A, § 6, applies to § 205-39 of the Plymouth zoning by-law (by-law). There was no error. The board's analysis did not depend on the grandfathering provision of G. L. c. 40A, § 6. Rather, the board determined that the property -- based on Diodato's engineer's stamped plans and the independent review of Galaxy Internet Service (GIS) mapping -- satisfied the provisions of § 205-39. Although the board's decision mentioned G. L. c. 40A, § 6, its decision with respect to § 205-39 of the by-law did not turn on it.

We likewise see no merit in the plaintiff's argument that the board failed to calculate the buildable area of the property and that it impermissibly delegated its authority to the conservation commission. These arguments are not based on a fair reading of the board's decision or the director's action. The director unconditionally approved the zoning permit, but notified Diodato that a building permit was subject to conservation commission review. Whether characterized as 'inartful' (as it was by the judge) or otherwise, the board's statement that the zoning permit was conditioned on conservation commission approval cannot be read in its literal sense because to do so would be nonsensical and incorrect, given the undisputed plain terms of the director's approval and the remainder of the board's decision. We are not required to read a substantive legal error into the board's decision simply because of an error in drafting. Moreover, the board's decision clearly set out its calculations of the buildable area, which included both a calculation of the over-all lot size as well as the square footage of the uplands.

Finally, we are unpersuaded by the plaintiff's argument that the judge impermissibly relied on the conservation commission's order of conditions. The record does not show that the plaintiff objected below to the introduction of this information in the summary judgment record and accordingly it appears that the argument has been waived. Setting that infirmity to the side, the judge's decision does not turn on his recognition of the conservation commission's approval.

Judgment affirmed.

By the Court (Kantrowitz, Wolohojian & Sullivan, JJ.),


Summaries of

Boutin v. Zoning Bd. of Appeals of Plymouth

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Apr 19, 2012
11-P-1326 (Mass. Apr. 19, 2012)
Case details for

Boutin v. Zoning Bd. of Appeals of Plymouth

Case Details

Full title:SAMUEL BOUTIN v. ZONING BOARD OF APPEALS OF PLYMOUTH & another.

Court:COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

Date published: Apr 19, 2012

Citations

11-P-1326 (Mass. Apr. 19, 2012)