ANNA M. MURRAY & others [Note 1] vs. BOARD OF APPEALS OF BARNSTABLE & others. [Note 2]

SMITH, J. The plaintiffs appeal from a judgment entered in the Superior Court upholding the granting of a special permit by the Barnstable board of appeals to Forrest A. Daniels and Madeline Daniels. The special permit was granted for the conversion

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of property located in Barnstable from its present use as an inn to use as apartments. The Danielses contend on cross appeal that the judge was incorrect in ruling that the plaintiffs had standing to appeal from the board's decision.

The Danielses own and operate the Cotuit Inn. The zoning by-law of Barnstable does not permit the operation of an inn in the area where the premises are located. [Note 3] However, the use of the property as an inn predates the adoption of a zoning by-law in Barnstable. Therefore, it is undisputed that the use of the premises as an inn is a valid preexisting nonconforming use. The inn property consists of five buildings which contain an office, cocktail lounge, dining room, cottages, single rooms and housekeeping suites. The Danielses applied to the board for a special permit to change the valid nonconforming use of their property to apartment use. [Note 4] In their application, the

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Danielses stated that they planned to eliminate the inn, restaurant, and bar uses on the property and create ten apartments.

The board held a public hearing and reviewed the Danielses' application. After the board voted unanimously to grant the requested application, the plaintiffs brought this action in the Superior Court. Their complaint, which sought to annul the grant of the permit, contended that the board's decision suffered from substantive and procedural defects. In their answer, the Danielses alleged, among other things, that the plaintiffs lacked the required standing to appeal from the board's decision. In addition, the Danielses filed a motion requesting a remand to the board in order that it might make findings required by the zoning by-law and G. L. c. 40A, Section 6. [Note 5] A Superior Court judge allowed the motion.

After the matter was remanded, the board conducted another public hearing on the petition and voted a second time to grant the special permit to the Danielses. In its decision, the board made a specific finding that "the proposed use will not only not be substantially more detrimental or objectionable to the neighborhood than the present use, but will, in fact, bring about an improvement and substantial upgrading and will be more in keeping with the district's essentially residential character, and is therefore in keeping with the spirit and intent of the zoning by-law." A Superior Court judge, after a trial, upheld the board's action. 1. Standing issue. The Danielses contend that the judge erred when he ruled that the plaintiffs were aggrieved persons within the meaning of G. L. c. 40A, Section 17, as appearing in St. 1982, c. 533, Section 1. [Note 6] Under that statute, "[a]ny person aggrieved

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by a decision of the board of appeals . . . whether or not previously a party . . . may appeal to the superior court." A judge's finding that a person is aggrieved is not to be set aside unless it is clearly erroneous. Mass.R.Civ.P. 52(a), 365 Mass. 816 (1974). Paulding v. Bruins, 18 Mass. App. Ct. 707, 709 (1984). Here, there was evidence that some of the plaintiffs were abutters to abutters and as "parties in interest" had received notice of the public hearings. See G. L. c. 40A, Section 11. There is a rebuttable presumption that such persons are aggrieved persons under G. L. c. 40A, Section 6. Marotta v. Board of Appeals of Revere, 336 Mass. 199, 204 (1957). Paulding v. Bruins, supra at 709. The record does not demonstrate that the Danielses presented evidence sufficient to overcome that presumption. In addition, such abutters, owners of property located in the same zoning district -- a single-family, one-acre district -- had a legitimate interest in preserving the integrity of the district from the intrusion of multi-family housing. Certainly, the interest of at least these plaintiffs was more than a general civic interest in the enforcement of the zoning ordinance. Compare Amherst Growth Study Comm., Inc. v. Board of Appeals of Amherst, 1 Mass. App. Ct. 826, 827 (1973). There was no error. [Note 7]

2. Application of Section M. The zoning by-law contains special regulations in Section M governing apartments. That section provides that "[a]partment dwelling structures may hereafter be built or established in an existing building when authorized only in accordance with the following requirements." Various requirements, generally classified as intensity regulations, are then

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set forth in that section. [Note 8] The plaintiffs argue that Section M is applicable to the conversion of the inn to apartment use because the apartments are "established in an existing building." [Note 9] The

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Danielses contended that it was evident from the reading of the entire by-law that the town did not intend to add the requirements of Section M to those general requirements governing a change in a lawful nonconforming use. [Note 10] The trial judge ruled that Section M was not applicable. We agree with the trial judge.

A zoning by-law must be read in its complete context and be given a sensible meaning within that context. Selectmen of Hatfield v. Garvey, 362 Mass. 821, 826 (1973). The intent of the by-law is to be ascertained from all its terms and parts as well as the subject matter to which it relates. Tilton v. Haverhill, 311 Mass. 572, 577-578 (1942). It is settled that where the language of an enactment is clear and unambiguous it should be followed even if an injustice or hardship results. Massachusetts Mut. Life Ins. Co. v. Commissioner of Corps. & Taxn., 363 Mass. 685, 690 (1973). However, where a statute (or by-law) is faulty, lacks precision or is ambiguous, a court may utilize general rules of construction, presumptions and interpretational aids to glean its meaning. See, for example, the nonexclusive list of construction aids in Massachusetts Mut. Life Ins. Co. v. Commissioner of Corps. & Taxn., supra at 690 n.8. See also School Comm. of Greenfield v. Greenfield Educ. Assn., 385 Mass. 70, 79-80 (1982). Here, the zoning by-law is not free from ambiguity with regard to the question whether Section M applies to a change in a nonconforming use. Therefore, we utilize the full panoply of interpretational aids that are available.

At the outset, we note that Section G (B) of the by-law (see note 4, supra) is "permissive in spirit" in that it sanctions, by special permit, changes in nonconforming uses. See McAleer v. Board of Appeals of Barnstable, 361 Mass. 317, 323-324 (1972); Berliner v. Feldman, 363 Mass. 767, 777 (1973); Sullivan v. Board of Appeals of Harwich, 15 Mass. App. Ct. 286, 289-290

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(1983). If the town had intended that Section M alter or limit the permissive nature of Section G, it could have done so by cross referencing the sections (and Section P[A] [6], see note 4, supra) to one another. Indeed, there are other sections of the by-laws wherein the drafters did cross reference to Section M. [Note 11] The absence of an explicit reference to Section M is a strong indication that the drafters intended an exclusion. See First Nat'l. Bank v. Judge Baker Guidance Center, 13 Mass. App. Ct. 144, 153 (1982). Moreover, it has also been stated, in the context of statutory interpretation, that if an omission from a statute was intended (e.g., a specific cross reference), no court can supply it; if the omission was due to inadvertence, an attempt to supply it would be tantamount to adding to a statute a meaning not intended by the Legislature. Mitchell v. Mitchell, 312 Mass. 154, 161 (1942). Boylston Water Dist. v. Tahanto Regional Sch. Dist., 353 Mass. 81, 84 (1967). Cranberry Realty & Mortgage Co. v. Ackerley Communications, Inc., 17 Mass. App. Ct. 255, 257 (1983).

Although Section M is clearly entitled "Special Regulations -- Apartments," the board of appeals did not refer to it in the minutes of its hearings or in its decision. A local board, of course, has an "intimate understanding" not only of conditions within a town but also "of the background and purposes of the entire [zoning] by-law." Fitzsimonds v. Board of Appeals of Chatham, 21 Mass. App. Ct. 53, 57 (1985). It is reasonable to assume that the board did not consider Section M because it felt that it was inapplicable to an application for a special permit

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for a change of a nonconforming use. [Note 12] As the Supreme Judicial Court recently stated in Simon v. State Examrs, of Electricians, 395 Mass. 238 (1985),

"Authority actually granted by [the Legislature] of course cannot evaporate through lack of administrative exercise. But just as established practice may shed light on the extent of power conveyed by general statutory language, so the want of assertion of power by those who presumably would be alert to exercise it, is equally significant in determining whether such power was actually conferred."

Id. at 246, quoting from FTC v. Bunte Bros, 312 U.S. 349, 352 (1941). See also 2A Sands, Sutherland Statutory Construction Section 49.05, at 364 (4th ed. 1984).

We note that Section M will not be rendered nugatory should it be found inapplicable to a change in a nonconforming use, and may, in fact, be construed consistently and harmoniously with the remainder of the by-law. Section M provides that "[a]partment dwelling structures may hereafter be built or established in an existing building when authorized only in accordance with the following requirements:

"A. The gross land area of the lot or group of contiguous lots on which an apartment structure is permitted shall not be less . . . " (emphasis supplied).

The above language can be construed to mean that the requirements of Section M shall apply only where apartments are "authorized" or "permitted" by the by-law. Apartments are presently allowed in Barnstable as of right in three zoning districts and by special permit in two additional districts. In addition,

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the amendment of the by-law (in 1982) to include the words "or established in an existing building" does not necessarily require a conclusion, as the plaintiffs argue, that Section M must apply to a change in a nonconforming use but could simply be viewed as a recognition by the town that large buildings located in a district where apartments are permitted are frequently renovated to contain apartment units.

Lastly, it is not lightly to be supposed that major changes in a statute or by-law were intended where not "plainly expressed." Ferullo's Case, 331 Mass. 635, 637 (1954). In the instant matter, Section M did not apply to changes in a nonconforming use prior to 1982, as it referred only to apartment dwelling structures "hereafter . . . built." (see 1980 by-law). The plaintiffs' argument that Section M now applies to changes in a nonconforming use can certainly be classified as a major or substantial change in the by-law.

For the above reasons, we hold that there was no error in the judge's ruling that Section M does not apply.

Judgment affirmed.