JONATHAN WHITE, as trustee of 144 BEAVER ROAD TRUST and MJN CONSTRUCTION, LLC v. WENDY KAPLAN ARMOUR, PETER KNIGHT, WINIFRED LI, JANE CARLSON, MARK MARGULIES and ELIZABETH MUNRO, as members of the TOWN OF WESTON ZONING BOARD OF APPEALS, the TOWN OF WESTON, and EUGENE REZNIK

Introduction

This case is a G.L. c. 40A, § 17 appeal from a decision of the Weston Zoning Board of Appeals (the “ZBA”) that revoked a January 3, 2008 building permit for additional finished space in the plaintiffs’ dwelling at 144 Beaver Road in Weston and a G.L. c. 240, § 14A challenge to the bylaw on which that revocation was based. [Note 1]

The essence of the dispute is simply stated. Town of Weston Zoning Bylaw § V.B.1.a (the “Bylaw”) allows a single-family home to be constructed by right so long as its Residential Gross Floor Area (“RGFA”) does not “exceed the greater of 3,500 s.f. or 10% of the lot area up to a maximum of 6,000 s.f.” [Note 2] If the RGFA exceeds that maximum, site plan approval from the Weston Planning Board is necessary. Bylaw § V.B.2.d. [Note 3] The plaintiffs’ home was built with a RGFA of just under 6,000 square feet, [Note 4] but contained considerable unfinished space that deliberately was left unfinished so that site plan approval would not be required. [Note 5] An occupancy permit was duly issued for the house in this configuration. Certificate of Occupancy No. 1943 (Sept. 7, 2007).

Less than four months later, on December 19, 2007, the plaintiffs applied for a building permit to complete the unfinished areas, which was issued on January 8, 2008. Defendant Eugene Reznik, an abutter living at 158 Beaver Road, timely appealed that issuance to the defendant ZBA. As revealed at the hearing of that appeal, “the Building Inspector, the builder and the architect all had in mind that once the building was built with less than 6,000 s.f. of RGFA, a second building permit would be sought and granted to finish out the unfinished portions. It was their view that if the building were completed in stages, then so long as the first stage was less than 6,000 s.f., the building could be finished without site plan approval by the Planning Board.” ZBA Decision at 5 (May 1, 2008).

The ZBA was equally as candid. It admitted that, “[t]o date, the Weston Planning Board has declined to review additions to existing houses to determine RGFA.” Id. But, the ZBA saw the plaintiffs’ situation as different.

In substance, in fact, in intention, and in spirit, this particular case before the Board was not a situation of an existing house to which an addition later was added. It was a situation where a house was constructed that clearly exceeded the 6,000 s.f. RGFA limit, where site plan approval should have been sought beforehand. That the builder and architect made a mistake early in the construction process in calculating the building’s RGFA is not an excuse for avoiding the site plan approval process. As soon as the mistake was discovered, the builder and owner should have applied for site plan approval or modified the design of the house so that it would fall under the 6,000 s.f. limit without having to resort to temporary fixes such as ripping out or leaving unfinished, for a short time, areas that were always meant to be finished.

Id. Accordingly, since site plan approval had neither been sought, obtained, or waived by the planning board, the ZBA voted unanimously to revoke the building permit for the additional space. Id.

The plaintiffs’ appeal from that decision and their motion for summary reinstatement of the building permit are based on three arguments. First, the plaintiffs argue that the Bylaw does not apply to subsequent work on a house, even if that work was intended from the start. Second, the plaintiffs contend that the ZBA is estopped by the past practices of the town’s building inspector, who had issued building permits without site plan approval in allegedly similar situations, and by the planning board, which “has agreed to waive submission requirements and Site Plan Approval under Section V.B.2.d and Section XI of the Weston Zoning By-law, for existing houses that exceed the Residential Gross Floor Area provision to the By-law, where finishing off interior space is proposed and where there is no change to the exterior of the house.” Letter from Susan Haber, Town Planner, to Rob Morra, Inspector of Buildings (Aug. 15, 2008). Third, the plaintiffs maintain that the provision in G.L. c. 40A, § 3 that “[n]o zoning ordinance or by-law shall regulate or restrict the interior area of a single family residential building” invalidates the Bylaw requiring site plan approval for homes with an RGFA in excess of 6,000 square feet and the statute’s exception “that such land or structures may be subject to reasonable regulations concerning the bulk and height of structures and determining yard sizes, lot area, setbacks, open space, parking and building coverage requirements” does not apply.

I disagree with each of these contentions. As more fully set forth below, on the undisputed facts of this case, I find and rule that the Bylaw clearly applies to situations such as this where a home deliberately has been phased with the intent of avoiding the site planning process. I find and rule that the past practices of the former building inspector do not estop either the current inspector or the ZBA from applying and enforcing the Bylaw. [Note 6] I find and rule that the planning board’s past practice of “waiv[ing] submission requirements and Site Plan Approval under Section V.B.2.d . . . for existing homes . . . where finishing off interior space is proposed and where there is no change to the exterior of the house,” Letter from Susan Haber, Town Planner, to Rob Morra, Inspector of Buildings (Aug. 15, 2008), would not preclude that board from requiring site plan approval in the situation presented by this case or in any other case it deemed appropriate so long as its decision was not arbitrary or capricious. Finally, I find and rule that the Bylaw is a “reasonable regulation . . . concerning the bulk and height of structures” and thus not invalid under G.L. c. 40A, § 3 nor in violation of the uniformity requirements of G.L. c. 40A, § 4. See 81 Spooner Road LLC v. Brookline, 452 Mass. 109 , 117 (2008). Accordingly, the defendants’ motion for summary judgment is ALLOWED, [Note 7] the ZBA’s decision is AFFIRMED, the plaintiffs’ motion for summary reinstatement of the building permit is DENIED, and the plaintiffs’ claims are DISMISSED in their entirety, with prejudice.

Discussion

“Summary judgment is appropriate where there is no genuine issue of material fact, and when viewing the evidence in the light most favorable to the nonmoving party, the moving party is entitled to judgment as a matter of law.” Gray v. Giroux, 49 Mass. App. Ct. 436 , 438 (2000) (citing Mass. R. Civ. P. 56(c)). The only potentially disputed facts relevant to these motions concern the past practices of the building inspector and planning board — did the former building inspector, in fact, issue building permits to build out previously unfinished interior space in excess of the RGFA threshold without prior site plan approval and did the planning board regularly “agree[] to waive submission requirements and Site Plan Approval under Section V.B.2.d and Section XI of the Weston Zoning By-law, for existing houses that exceed the Residential Gross Floor Area provision to the By-law, where finishing off interior space is proposed and there is no change to the interior of the house”? Letter from Susan Haber, Town Planner, to Rob Morra, Inspector of Buildings (Aug. 15, 2008). For purposes of these motions, taking all disputed facts in the light most favorable to the plaintiffs, I assume these facts to be true. [Note 8] As discussed more fully below, however, they are not material to this memorandum and order. Even with these facts, the defendants are entitled to summary judgment dismissing the plaintiffs’ claims as a matter of law. [Note 9]

The initial question presented by this case — whether the Bylaw facially applies to situations where a building permit is sought for previously unfinished interior space that was deliberately left unfinished to avoid the requirement of site planning approval — is easily answered. Bylaws, like statutes, are to be interpreted according to “the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated.” Moloney v. Boston Five Cents Savings Bank, FSB, 422 Mass. 431 , 433 (1996) (quoting Telesetsky v. Wight, 395 Mass. 868 , 872-873 (1985)). The Bylaw’s words are straightforward. Homes with an RGFA of more than 6,000 square feet require site plan approval before a building permit may issue. The Bylaw’s purpose for this requirement is clear. In the town’s judgment, size matters. Larger homes (those in excess of 6,000 square feet) are deemed to have a greater impact on their surroundings than smaller ones and surely this is so. Generally speaking, larger homes have more bulk, more bedrooms, more cars, more visitors, and more activity. Interpreting the Bylaw as not requiring site plan approval for a home in excess of 6,000 square feet if the developer simply leaves a portion of its interior unfinished for a short period of time would make the Bylaw subject to manipulation and evasion, effectively rendering it meaningless. See 81 Spooner Road LLC, 452 Mass. at 118-119 (upholding powers of towns to restrict subsequent conversion of previously “unfinished” space to prevent developers from “thwarting” bylaw requirements). The town currently interprets the Bylaw as requiring site plan approval in such situations (Aff. of Robert Morra, Inspector of Buildings at 1 (Sept. 11, 2008); ZBA Decision at 5 (May 1, 2008)) and that interpretation is entitled to deference. Livoli v. Zoning Bd. of Appeals of Southborough, 42 Mass. App. Ct. 921 , 923 (1997).

The plaintiffs argue that the Bylaw impermissibly turns a “by right” use into a use requiring a special permit. Amended Case Management Joint Statement at 2 (July 15, 2008). This is incorrect for two reasons. First, on its face, the Bylaw does not require a special permit, only site plan approval. The two are quite different. Osberg v. Planning Bd. of Sturbridge, 44 Mass. App. Ct. 56 , 58-59 (1997). Unlike a discretionary special permit, “if the specific area and use criteria stated in the by-law [are] satisfied, the board [does not] have discretionary power to deny . . . [site plan approval], but instead [is] limited to imposing reasonable terms and conditions on the proposed use.” Prudential Ins. Co. of America v. Bd. of Appeals of Westwood, 23 Mass. App. Ct. 278 , 281-82 (1986) (quoting SCIT, Inc. v. Planning Bd. of Braintree, 19 Mass. App. Ct. 101 , 105, n.12, 106 (1984)). Second, a municipality is entitled to draw reasonable regulatory distinctions based on size. The line drawn by the Bylaw (requiring site plan approval for homes greater than 6,000 square feet) is not only a reasonable distinction, but also a reasonable approach to addressing the consequences of such size. See Y.D. Dugout, Inc. v. Bd. of Appeals of Canton, 357 Mass. 25 , 31 (1970) (towns may adopt “reasonably flexible methods . . . allowing [their] boards . . . to adjust zoning regulation to the public interest in accordance with sufficiently stated standards”); Andrews v. Town of Amherst, 68 Mass. App. Ct. 365 , 367-368 (2007) (Municipalities have “broad legislative powers” under the Home Rule Amendment, Art. 89 of the amendments to the Massachusetts Constitution, and the Zoning Enabling Act, G.L. c. 40A, to regulate land use within their boundaries. Standards will be upheld so long as they serve allowable zoning objectives, § 2A of St. 1975, c. 808, and are neither in violation of any provision of the Zoning Enabling Act nor “an arbitrary or unreasonable exercise of the police power having no substantial relationship to the public health, safety or general welfare.”).

Moreover, an important point should not be forgotten. The town is not saying that a building permit will not issue. The ZBA has simply said that the permit’s issuance in this case was premature because site plan review was never sought, obtained, or formally waived by the planning board. The law prohibits the planning board from acting arbitrarily or capriciously. After reviewing the situation, the planning board might very well decide that the site need not be altered in any way. At most, it can only impose reasonable terms and conditions unless no such terms could resolve the site’s problems, if any. Prudential Ins. Co. of America, 23 Mass. App. Ct. at 283 n.9 (“In some cases, the site plan, although proper in form, may be so intrusive on the interests of the public in one regulated aspect or another that rejection by the board would be tenable.”).

The plaintiffs next argue that the town is estopped from enforcing its Bylaw because the past practice of its building inspector had been to issue building permits to build out previously unfinished interior space without prior site plan approval and the past practice of its planning board had been to waive submission requirements and site plan approval where (as here) there was no change to the exterior of the house. This too is incorrect. First, this is no longer the building inspector’s practice and, moreover, it is one he recognizes was “not consistent with the RGFA requirements of the By-law.” Aff. of Robert Morra at 1. Second, it is not clear that it is still the practice of planning board or if, under that practice, waivers were given automatically for situations such as this where the developer deliberately left space unfinished (space always clearly intended to be finished) solely to avoid the site planning approval process. If that is the practice, for the reasons discussed above, it is improper. The Bylaw requires site plan approval and a municipality is not estopped from enforcing its laws due to the previous improper actions of its agents. Holahan v. Medford, 394 Mass. 186 , 191 (1985) (courts should be “reluctant to apply principles of estoppel to public entities where to do so would negate requirements of law intended to protect the public interest,” quoting Phipps Prods. Corp. v. Massachusetts Bay Transp. Auth., 387 Mass. 687 , 693 (1982)); Dagastino v. Commr. of Corr., 52 Mass. App. Ct. 456 , 459 (2001) (citing McAndrew v. School Comm. of Cambridge, 20 Mass. App. Ct. 356 , 360 (1985)).

The plaintiffs’ next challenge to the Bylaw is their contention that it violates G.L. c. 40A, § 3 and is thus invalid because it impermissibly regulates the interior area of a single-family residential building. This argument also fails. The Bylaw does not regulate the interior area. It regulates the external impact of that area and is thus a permissible regulation concerning the “bulk” of structures within the meaning of G.L. c. 40A, § 3. 81 Spooner Road LLC, 452 Mass. at 117.

The zoning bylaw at issue in 81 Spooner Road LLC concerned a residential dwelling’s floor-to-area ratio. A building permit was issued and the neighbors challenged that permit on the grounds that the top floor of the house was intended to be used as habitable space, not an attic. The ZBA agreed and revoked the permit. The developer appealed, contending that the floor-to-area ratio regulations were invalid as applied to single-family homes pursuant to G.L. c. 40A, § 3. The initial question presented was whether c. 40A, § 3 prohibited “all restriction of the interior area of a residence.” Id. at 112. The Supreme Judicial Court rejected this argument, noting that if it did so,

none of the regulatory devices mentioned in the proviso in §3, second par. [allowing “reasonable regulations concerning the bulk and height of structures and determining yard sizes, lot area, setbacks, open space, parking and building coverage requirements”] would be valid, and single-family residences could be constructed to cover an entire lot, with no height restriction. Houses, as well as lots, could abut, wreaking havoc on the purposes of zoning. We do not construe a statute in a manner that renders its purposes ineffective or its words meaningless.

Id. at 112-113. It further stated that “the prohibition . . . cannot be absolute because it would deprive the town of all ability to regulate ‘density of population and intensity of use’ created by single-family homes.” Id. at 117.

In construing the meaning of the statute, the court focused particularly on its use of the word “bulk.” As the court noted, “unlike the other devices mentioned in the proviso, a ‘bulk’ regulation operates in a more complex manner involving consideration of interior area” and was different and distinct from “size.” Id. at 113-114. “[W]hen ‘bulk’ and ‘size’ are used interchangeably, they refer to width, length, and height, but ‘bulk may also be expressed in terms of [a building’s] gross floor area.’” Id. at 114 (citing 3 A.H. Rathkopf & D.A. Rathkopf, Zoning and Planning § 54:2, at 54-2 (2005)). “[R]egulation of the bulk of a building by considering its internal area, as through the use of a floor-to-area ratio, is a generally recognized and accepted principle of zoning” of which “the Legislature was well aware” when it enacted G.L. c. 40A, § 3. Id. at 115. Thus, the court concluded, “it follows that the proviso of § 3, second par., permits consideration of interior area in bulk regulation.” Id. In sum, the court concluded, “regulation of single-family residences pursuant to the authority in the proviso of G.L. c. 40A, § 3, second par., including bulk regulation of floor-to-area ratio, is a proper exercise of the zoning power, provided the effect of such regulation on the interior area of such structures is incidental.” Id. at 117.

Here, the regulation is of “gross floor area” rather than “floor-to-area ratio,” but the analysis is the same. As stated above, bulk can be expressed in terms of gross floor area. Id. at 114. Further, as the court held, “to the extent the definition of ‘gross floor area’ and the floor-to-area ratio operate as a use restriction, they constitute a permissible ‘intensity of use’ regulation under c. 40A, § 3 and St. 1975, c. 808, § 2A.” Id. at 118.

Whether this Bylaw (requiring site plan approval for homes with an RGFA in excess of 6,000 square feet) is an “incidental” rather than “direct” regulation of interior space and whether the requirement of site plan approval is rationally related to RGFA has already been answered by the analysis earlier in this memorandum. To repeat, in the view of the town, size matters. Larger homes (those in excess of 6,000 square feet) are deemed to have more of an impact on their surroundings than smaller ones and surely this is so. Generally speaking, larger homes have more bulk, more bedrooms, more cars, more visitors, and more activity.

To be sure, the court in 81 Spooner Road LLC did state that “dimensional, bulk, and density requirements may properly regulate single-family residences so long as they do not set minimum or maximum levels of interior area.” Id. at 116-17 (emphasis added). However, contrary to the plaintiffs’ argument, the site plan approval requirement for residences with an RFGA greater than 6,000 square feet does not “flatly prohibit the construction of a single-family house in excess of 6,000 square feet.” [Note 10] Reply Brief of Jonathan A. White, Trustee, and MJN Construction LLC, to Oppositions and Cross Motions of Town of Weston and the Weston ZBA, and to Reznik’s Opposition to Motion for Judgment on the Pleadings at 5 (Aug. 15, 2008); see also Brief of Jonathan A. White, Trustee, and MJN Construction LLC, in Support of Motion for Judgment on the Pleadings Pursuant to M.R. Civ. P. 12(c) at 19 (June 27, 2008). Rather, it merely sets a level that triggers a requirement for site plan approval for residences with an RGFA greater than 6,000 square feet. This is clearly intended to address the external effects of such bulk (e.g., the number of cars, residents and visitors; parking and driveway location; the types and locations of activities, etc.) and thus is a rational and “incidental” bulk regulation. See 81 Spooner Road LLC, 452 Mass. at 118-19 (where the bylaw provision allowing conversion of attic and basement space to habitable space only after ten years was rationally related to the goal of regulating density and intensity of use).

The plaintiffs also contend that the site plan approval requirement for buildings with an RGFA greater than 6,000 square feet cannot validly regulate bulk and density because other provisions in the Bylaw specifically deal with bulk and density considerations (height, setback, parking, etc.) and the planning board would be bound to follow them. As Muldoon v. Planning Board of Marblehead makes clear, however, that argument fails as well. 72 Mass. App. Ct. 372 (2008). Where, as here, the goals of site plan approval include minimizing the impacts to neighboring properties and the community, [Note 11] the site plan approval bylaw allows the planning “board to impose reasonable conditions on site plan approval in order to achieve those goals even where those conditions impose dimensional requirements stricter than the minimum required by the applicable zoning by-law.” Id. at 376. Stricter requirements in such circumstances do not violate the uniformity requirements of G.L. c. 40A, § 4. Id. at 375. As a result, the fact that the planning board evaluates the impacts of bulk and density for homes with an RGFA in excess of 6,000 square feet under the Bylaw’s general site plan approval provisions rather than simply requiring those homes to meet the specific dimensional requirements in other sections does not invalidate the site plan approval requirement for those homes.

The plaintiffs’ more general attack that the Bylaw violates the uniformity requirements of G. L. c. 40A, § 4 fails as well. In this argument, the plaintiffs once again equate the site plan approval requirement to bylaws that require a special permit for certain uses, citing SCIT, Inc. v. Planning Board of Braintree, 19 Mass. App. Ct. 101 (1984), for the proposition that Weston cannot require site plan approval without violating the uniformity requirement. As explained above, however, special permits and site plan approvals are very different mechanisms, and the Bylaw does not require a special permit for a use allowed as of right. In addition, as the town points out in its briefs, the town applies uniform requirements within the two classes established by the Bylaw: (1) single-family residences constructed after October 29, 1988 with an RGFA of less than 6,000 square feet and (2) single-family residences constructed after October 29, 1988 with an RGFA of more than 6,000 square feet. The fact that the planning board may impose stricter requirements on residences with an RGFA exceeding 6,000 square feet does not violate the uniformity requirement. Muldoon, 72 Mass. App. Ct. at 375.

Conclusion

For the foregoing reasons, I find and rule that Bylaw §§ V.B.1.a, V.B.2.d, and XI, requiring site plan approval for single-family homes with an RGFA in excess of 6,000 square feet, clearly applies to situations such as this where a home deliberately has been phased with the intent of avoiding the site planning process. I find and rule that the past practices of the former building inspector do not estop either the current inspector or the ZBA from applying and enforcing the Bylaw. I find and rule that the planning board’s apparent practice of “waiving submission requirements and Site Plan Approval under Section V.B.2.d . . . for existing homes . . . where finishing off interior space is proposed and where there is no change to the exterior of the house,” Letter from Susan Haber, Town Planner, to Rob Morra, Inspector of Buildings (Aug. 15, 2008), would not preclude that board from requiring site plan approval in the situation presented by this case or in any other case it deemed appropriate so long as its decision was not arbitrary and capricious. Finally, I find and rule that the Bylaw is a “reasonable regulation . . . concerning the bulk and height of structures” and thus is not invalid under G.L. c. 40A, § 3 nor in violation of the uniformity requirements of G.L. c. 40A, § 4. See 81 Spooner Road LLC, 452 Mass. at 117; Muldoon, 72 Mass. App. Ct. at 374. Accordingly, the defendants’ motion for summary judgment is ALLOWED, the ZBA’s decision is AFFIRMED, the plaintiffs’ motion for summary reinstatement of the building permit is DENIED, and the plaintiffs’ claims are DISMISSED in their entirety, with prejudice. Judgment shall enter accordingly.

SO ORDERED.

By the court (Long, J)