Opinion
18-P-750
10-07-2019
LEON CHARKOUDIAN v. ZONING BOARD OF APPEALS OF WILBRAHAM & another.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In 2017, the zoning board of appeals of Wilbraham (board) decided that a cottage destroyed by tornado in 2011 could be reconstructed under a local bylaw provision referring to "existing" structures. A Land Court judge annulled the decision. Because we believe the board correctly determined that the cottage is "existing" for purposes of the specific bylaw provision at issue, we vacate the judgment and remand for consideration of the plaintiff's alternative argument that the structure has been abandoned.
Background. The plaintiff, Leon Charkoudian, and the defendant, John Charkoudian, are cousins. They are two of five family members who each own fractional interests in a nineteen- acre parcel of land at 19 Peak Road in Wilbraham (the property). In 1939, prior to the adoption of Wilbraham's zoning bylaw (bylaw), unspecified predecessors of the current owners built an 800-square-foot seasonal cottage on the property. In June 2011, a tornado ripped through Wilbraham and destroyed the structure. Prior to the tornado, the cottage had been considered nonconforming under the bylaw because the lot lacks sufficient frontage. After the cottage's destruction, a dispute arose between Leon and John about whether the cottage could legally be rebuilt, with Leon preferring to maintain the property as open land for private conservation and recreational purposes.
The remaining owners of the property are John's brother, Nahabed Charkoudian, and Leon's sisters, Arax Charkoudian and Kenar Charkoudian.
The lot has just forty-four feet of frontage on Peak Road rather than the required 200 feet.
We use first names because the parties share a last name.
In August 2016, John's lawyer wrote to Wilbraham's building commissioner, asking whether a building permit might issue for a four-bedroom, single-family residence on the property pursuant to § 3.3.3 of the bylaw. Section 3.3.3 of the bylaw is entitled, "Non-Conforming Single and Two Family Residential Structures." It states, in pertinent part, as follows:
"A non-conforming single-family or two-family residential structure in a Residential Zoning District may be altered, changed, added to, extended, or reconstructed (collectively 'alterations') without a proceeding before the Board of Appeals provided the Building Commissioner determines that the proposed alteration (1) does not constitute a change of
use and (2) does not make the residential structure more non-conforming. A proposed alteration to such structure will not be considered more nonconforming and will be allowed by building permit from the Building Commissioner under the following circumstances:
The building commissioner replied by letter that a new single-family residence would be permitted on the lot if the structure, as proposed, "is no more non-conforming and complies with other requirements of the Zoning By Laws, where applicable."A. Where the existing structure is located on a lot with insufficient frontage and/or lot area, but the existing structure complies with all current setback, building coverage and building height requirements, and the proposed alteration will also comply with all current setback, building coverage and building height requirements."
Leon appealed the building commissioner's determination to the board. In a decision dated February 16, 2017, the board concluded, "We have an existing single-family residential structure located on a lot with insufficient frontage, and therefore it may be altered and/or reconstructed if the proposed, new single-family residential structure is compliant with all setback, building coverage and building height requirements." In other words, the board decided that John would be entitled to a permit without any further inquiry by the building commissioner if his proposal complied with all setback, coverage, and height requirements.
As the board acknowledged, no permit was before it; the building commissioner had simply stated that a permit would be available on the conditions quoted in his letter. No party questions whether an appeal to the board was available under these circumstances, and we assume that one was. See Picard v. Zoning Bd. of Appeals of Westminster, 474 Mass. 570, 572 & n.6 (2016) (appeal taken by abutter to board of appeals and then Superior Court where building commissioner did not issue building permit, but "determined that the locus had grandfathered status as a nonconforming lot").
The board's decision was arguably more favorable to John than the building commissioner's letter, which seems to have referred to the first sentence of § 3.3.3 of the bylaw, authorizing issuance of a permit for reconstruction of a nonconforming single-family or two-family residence where the building commissioner determines that the proposed project will not make the residential structure "more non-conforming." As the motion judge explained, § 3.3.3A of the bylaw "cabins" the building commissioner's discretion to determine that a proposed alteration (including a reconstruction) would be "more non-conforming" where the existing nonconformity is limited to a violation of frontage or lot area requirements and the proposed project will comply with all current setback, coverage, and height requirements.
In March 2017, Leon commenced an appeal from the board's decision in Land Court, see G. L. c. 40A, § 17, contending that the board erred because (1) the cottage is not "existing" and (2) the cottage has been abandoned for zoning purposes. In March 2018, a Land Court judge allowed Leon's motion for summary judgment in part, annulling the decision of the board. This appeal followed.
The board has not participated in this appeal.
Discussion. 1. "Existing" structure. The primary question before the motion judge was a narrow one: whether the board was correct that the cottage is "existing" for purposes of § 3.3.3A of the bylaw. In a zoning appeal, the judge "determines the content and meaning of statutes and by-laws and . . . decides whether the board has chosen from those sources the proper criteria and standards to use in deciding to grant or to deny [the relief sought]." Doherty v. Planning Bd. of Scituate, 467 Mass. 560, 566 (2014), quoting Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirley, 461 Mass. 469, 474 (2012). "We accord deference to a local board's reasonable interpretation of its own zoning bylaw . . . with the caveat that an 'incorrect interpretation of a statute . . . is not entitled to deference.'" Doherty, supra, quoting Shirley Wayside Ltd. Partnership, supra at 475. An appellate court reviews "the judge's determinations of law, including interpretations of zoning bylaws, de novo." Doherty, supra, quoting Shirley Wayside Ltd. Partnership, supra. "We determine the meaning of a bylaw 'by the ordinary principles of statutory construction.'" Shirley Wayside Ltd. Partnership, supra at 477, quoting Framingham Clinic, Inc. v. Zoning Bd. of Appeals of Framingham, 382 Mass. 283, 290 (1981).
Because of the outcome we reach here, we need not discuss Leon's standing. We note, however, that in denying John's motion to dismiss Leon's zoning appeal, the motion judge wrote, "[Leon] is presumed to have standing under [G. L. c. 40A,] § 17 to appeal the ZBA's decision. Plaintiff will retain that presumption unless and until defendants come forward with evidence that rebuts the presumption."
Judicial review in zoning matters involves a "highly deferential bow to local control over community planning" at the stage where the judge has already determined the applicable legal standards and then engages in a determination as to whether the local board applied those standards in an "unreasonable, whimsical, capricious or arbitrary manner." Doherty, 467 Mass. at 566, quoting Shirley Wayside Ltd. Partnership, 461 Mass. at 475. Here, however, the case rises and falls on the underlying question of bylaw interpretation.
Finding no definition of "existing structure" in the bylaw, the motion judge turned to the phrase's plain meaning, and rejected John's contextual arguments about why some meaning other than the plain and ordinary one should apply. In determining that "existing" should be given its ordinary meaning -- i.e., it refers to structures that presently exist -- the motion judge considered the inclusion in the bylaw of a definition for the term "Non-Conforming Building." The bylaw defines "Non-Conforming Building" as "[a] building legally existing as of the effective date hereof, but which does not conform to all of the applicable requirements of this By-Law regarding area and width of lot, frontage of lot, percentage of building coverage, required yards and parking facilities and building height limit." This definition plainly sweeps in buildings that presently exist and also buildings that existed prior to the bylaw's passage but are no longer standing. The motion judge noted, however, that the bylaw's drafters did not use the phrase "Non-Conforming Building" in § 3.3.3A, implying that if they meant to incorporate in that provision structures "existing as of the effective date" of the relevant bylaw provision, they could have done so (but chose not to).
Quoting from the American Heritage Dictionary of the English Language 460 (1976), the motion judge found that "existing" means "[t]o have being or actuality; to be."
The drafters could not, however, have easily used "Non-Conforming Building" in § 3.3.3A, because § 3.3.3 and its subsections are not addressed to all of the sorts of buildings that fall within the definition of that phrase. These provisions are, instead, limited to "non-conforming single-family or two-family residential structure[s] in a Residential Zoning District." Accordingly, inclusion in the bylaw of the defined term "Non-Conforming Building" does not, by itself, narrow the meaning of "existing" to only those structures that presently exist.
Instead, in our view, the bylaw should be construed as including within the definition of "Non-Conforming Building" a subset of structures that are "non-conforming single-family or two-family residential structure[s] in a Residential Zoning District." Viewing the bylaw this way suggests that this phrase, as appearing in the first sentence of § 3.3.3, encompasses not only structures that presently exist but also structures that once existed at a particular point in time (specifically, at the time of adoption of a bylaw provision with which they did not comply). Thus, the phrase "existing structure" as found in § 3.3.3A is best understood as including those single-family and two-family residences that existed in a residential zone at the time the relevant bylaw provision rendered them nonconforming.
This result comports both with commonsense and accepted canons of statutory interpretation. A bylaw provision "must be construed in the context of the by-law as a whole, and it must be given a sensible and practical meaning within that context." Miles-Matthias v. Zoning Bd. of Appeals of Seekonk, 84 Mass. App. Ct. 778, 788 (2014). See Plainville Asphalt Corp. v. Plainville, 83 Mass. App. Ct. 710, 714 (2013) (ambiguous words of bylaw should be interpreted in manner consistent with bylaw as whole); Framingham Clinic, Inc., 382 Mass. at 290 ("Specific provisions of a zoning enactment are to be read in the context of the law as a whole").
The practical problem with the motion judge's temporal construction is that it leads to an unreasonable result. Setting aside Leon's abandonment argument for the moment, there is little doubt that under the first sentence of § 3.3.3, the cottage could be reconstructed in the precise form that it once had. Once that is done, under § 3.3.3A, the owner would immediately be entitled to a building permit as of right to alter (or reconstruct) the new house in a way that complies with all applicable setback, building coverage, and building height requirements. To ascribe to the framers of the bylaw the desire to require the building of a house just for its immediate replacement by a bigger structure is to ascribe irrationality. It is our duty, however, not to "construe a statute . . . to produce absurd results." Zimmerling v. Affinity Fin. Corp., 86 Mass. App. Ct. 136, 143-144 (2014), quoting Plourde v. Police Dep't of Lawrence, 85 Mass. App. Ct. 178, 186 (2014).
As the motion judge noted, the first sentence of § 3.3.3 does not require that the building be "existing." Moreover, we see no way in which a proposal for an exact replica of the destroyed cottage could be deemed "more non-conforming" by the building commissioner and deprived of a permit on that basis.
If we interpret the temporal limitation of "existing" as "existing at the time that the non-conformity was created by the passage of the relevant bylaw," as the board did (albeit not in those words), we can avoid this absurd result and construe the sections of the bylaw in harmony with each other. As we are obligated to "accord deference to a local board's reasonable interpretation of its own zoning bylaw," Shirley Wayside Ltd. Partnership, 461 Mass. at 475, we accept the board's reasonable construction of § 3.3.3A, which avoids the irrational result of requiring the construction and immediate demolition of a house. Accordingly, we vacate the judgment because the board's interpretation of § 3.3.3A must not be disturbed.
2. Abandonment. In his motion for summary judgment, Leon argued that the board's decision should be annulled not only because the board had misconstrued the word "existing," but also because the owners had "abandoned the non-conforming structure as a matter of law where they made no effort to reconstruct it for nearly five years after it was destroyed by tornado." The motion judge wrote in his decision that the board "has yet to consider the alleged abandonment . . . . It should have that opportunity prior to this Court weighing in."
It appears, however, that the board did reach the question of abandonment insofar as it wrote, "Having determined that the building of a residential dwelling on [the property] is . . . [not] permanently prohibited by the abandonment or non-use of a formally existing right; we come to the question of whether a building permit can be obtained." Accordingly, the issue of abandonment was properly before the motion judge. We decline, however, to reach it in the first instance on appeal.
The judgment is vacated. The case is remanded to the Land Court for further proceedings consistent with this memorandum and order.
Leon's Count II for a declaration under G. L. c. 240, § 14A that the lot is "unbuildable" was dismissed prior to the summary judgment phase of the case. Notwithstanding the dismissal, Leon renewed his request for a declaration of "buildability" in his summary judgment papers. The motion judge then considered the request pursuant to his power in zoning appeals to "make such other decree as justice and equity may require," see G. L. c. 40A, § 17, but declined to issue a declaration, noting both that (1) there are provisions of the bylaw other than § 3.3.3A under which John could seek permitting, and, incorrectly, (2) the board had not reached the abandonment question. Having failed to cross-appeal, Leon has waived any entitlement he may have had to a broad declaration of "buildability." See Brear v. Fagan, 447 Mass. 68, 76 n.7 (2006) (prevailing parties must cross-appeal if seeking "judgment more favorable to them than the judgment entered below"). He has not, however, waived his alternative abandonment argument insofar as it pertains to Count I of the complaint.
So ordered.
By the Court (Henry, Lemire & Ditkoff, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: October 7, 2019.