RALPH HANSON and DRUSILLA HANSON v. ARTHUR C. SMITH, NYLES N. BARNERT, JOHN MCWEENEY, JOHN GILBERT, and DAN LUCAS, as they are the BOARD OF APPEALS OF THE TOWN OF LEXINGTON, and NICHOLAS ALEX AND CYNTHIA ALEX

Plaintiffs initiated this action on October 24, 2007, by filing a one-count complaint pursuant to G. L. c. 40A, § 17, challenging a decision by the Lexington Board of Appeals (Board) that allowed Nicholas and Cynthia Alex (Defendants) to build an accessory apartment adjacent to their single-family dwelling in Lexington. In the presence of counsel and Mr. Alex, this court took a view of Defendants’ Property on February 10, 2009, and a one-day, case-stated trial was held that day. Eighteen exhibits were entered in evidence, including a joint stipulation of facts. Plaintiffs filed a pre-trial brief on February 10, 2009. [Note 1]

Based on all the evidence and reasonable inferences drawn therefrom, and observations from the view, this court finds the following material facts:

1. Plaintiffs own and reside at property located at 2643 Massachusetts Avenue, Lexington (Plaintiffs’ Property).

2. Defendants own and reside at property located at 3 Paul Street, Lexington (Locus). The backyard of Plaintiffs’ Property directly abuts Locus.

3. In 2006, Defendants applied to the Board for a Special Permit to convert a detached garage on Locus into an accessory apartment. Following opposition at a public hearing in September of 2006, Defendants withdrew the application.

4. On April 9, 2007, Defendants applied for a building permit to convert the existing detached garage into an accessory apartment (New Accessory Apartment) and build a new garage, located between the New Accessory Apartment and their principal dwelling. The Building Inspector approved Defendants’ application for a building permit, without a special permit.

5. Plaintiffs became aware of this building permit in June 2007, when Defendants commenced work on Locus. On June 12, 2007, Plaintiffs, through counsel, sent a letter to the Building Inspector, asserting that Defendants’ conversion of the detached garage into an accessory apartment required a special permit. Plaintiffs requested that the Building Inspector reconsider his decision to issue the building permit. Plaintiffs sent a copy of this letter was sent to Defendants.

6. On June 29, 2007, the Building Inspector responded by letter to Plaintiffs, declining to reconsider his decision to issue the building permit. The Building Inspector also wrote a letter to Defendants to inform them of the possibility of an appeal by Plaintiffs and the ramifications of such an appeal.

7. On July 23, 2007, Plaintiffs filed an appeal of the Building Inspector’s decision with the Board.

8. The Board held a duly-noticed public hearing on Plaintiffs’ appeal on September 13, 2007, at which all parties were heard. After the hearing, the Board voted unanimously to deny Plaintiffs’ requested relief. The Board’s written decision was filed with the office of the town clerk on October 5, 2007. Plaintiffs’ timely appeal followed.

9. Defendants have completed construction at Locus and the Building Inspector has issued an occupancy permit for the New Accessory Apartment. The apartment is currently occupied by Mr. Alex’s elderly parents.

10. The new Accessory Apartment contains a bedroom, bathroom, living room/den, and kitchen space, which includes a sink, refrigerator, countertops, cabinets, and a microwave. The kitchen space does not contain a stove. Although the New Accessory Apartment has its own entrance, one also is able to walk from the New Accessory Apartment to the principal dwelling through the garage, without going outside.

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As this action is an appeal of the Board’s decision, this court engages in a de novo review under G. L. c. 40A, § 17. As the initiating complainant to the underlying enforcement action, Plaintiffs have the burden of establishing that Defendants are in violation of the Bylaw. Morels v. Oak Bluffs Board of Appeals, 62 Mass. App. Ct. 53 , 57 (2004) (citing Brotherhood of Alpha Upsilon, Inc. v. Zoning Bd. of Appeals of Bridgewater, 15 Mass. App. Ct. 991 , 992 (1983)). Specifically, Plaintiffs must show that the New Accessory Apartment required a special permit, and could not lawfully be built with only a building permit. In accordance with the requirements of G. L. c. 40A, § 17, this court has made independent findings of fact (based on the parties’ agreed statement of facts), without limiting itself to evidence introduced at the public hearing before the Board or affording evidentiary weight to the Board's findings of fact. Guiragossian v. Board of Appeals of Watertown, 21 Mass. App. Ct. 111 , 114 (1985). This court may only disturb the Board’s decision if it is “based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary.” MacGibbon v. Board of Appeals of Duxbury, 369 Mass. 512 , 515-16 (1976); Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555 , 558-59 (1954).

In this action, Defendants argue that the New Accessory Apartment on Locus is a by-right accessory apartment under Section 135-19C of the Lexington Zoning Bylaw (Bylaw) because it is adjacent to the main dwelling. [Note 2] Plaintiffs argue that because Defendants built a new garage to attach the New Accessory Apartment to the principal dwelling, the apartment is not a by-right apartment under Section 135-19C and, therefore, requires a special permit.

Bylaw Section 135-19 defines accessory apartment as “a second dwelling subordinate in size to the principal dwelling, located either in the principal dwelling or in an existing accessory structure.” The Bylaw provides for three categories of accessory apartments: by-right accessory apartments, special permit accessory apartments, and accessory structure apartments, which also require a special permit. By-right accessory apartments are governed by Bylaw Section 135-19C. By-right accessory apartments are allowed where: (1) the lot area is be at least 10,000 square feet, (2) the accessory apartment is located in the principal structure, (3) the maximum floor area of the accessory apartment does not exceed 1,000 square feet, (4) each accessory apartment is limited to two bedrooms, (5) there are no enlargements or extensions of the principal dwelling in connection with the accessory apartment, except for minimal additions or enclosures, and (6) the entire structure that contains the accessory apartment must have existed for a minimum of five years at the time of the application for the by-right accessory apartment. Plaintiffs concede that Defendants have complied with the first four requirements for a by-right accessory apartment. However, Plaintiffs maintain that Defendants are in violation of requirements five and six and, as such, require a special permit for their accessory apartment. This court agrees.

Defendants created the New Accessory Apartment by converting an existing detached garage. However, in order to comply with the provision of § 135-19C that requires the accessory apartment to be located “in the principal structure,” Defendants simultaneously constructed a new two-car garage that connects the New Accessory Apartment to the principal dwelling. As a result of the new construction, Defendants argue that the New Accessory Apartment arguably is contained in the principal dwelling. Assuming that is a reasonable conclusion, Defendants still run afoul of requirements five and six of Section 135-19C because Defendants enlarged the principal dwelling by constructing a new garage and because the new garage, as part of the principal structure, did not exist for five years prior to the application for the New Accessory Apartment.

Defendants argue that since the New Accessory Apartment is contained in the former garage it is only that structure that must have been in existence for five years prior. However, Defendants’ interpretation would render the requirement that an accessory apartment be contained in the principal dwelling meaningless. It is a “well-settled canon of statutory interpretation that, where possible, we construe the various provisions of a statute in harmony with one another.” Alves's Case, 451 Mass. 171 , 189 (2008). This principle is equally applicable to bylaw interpretation. This court finds that the six requirements of Section 135-19C read together require a by-right accessory apartment to be located in the principal structure, no part of which of which was constructed within five years of the application for a building permit. Given the facts of this case and the nature of Defendants’ construction, they cannot simultaneously comply with requirements two, five and six of Section 135-19C.

This reading is also consistent with Bylaw Section 135-19E, which allows for “accessory structure apartments,” which do not have to be connected to the principal structure. The fact that this option exists weighs against Defendants’ interpretation of Section 135-19C. Had Defendants wished to construct an accessory apartment in the former garage without connecting the structure to the principal dwelling, they could have done so by applying for a special permit pursuant to Section 135-19E.

Additionally, Bylaw Section 135-19D specifically allows for enlargements or extensions of the principal structure, provided the Board makes specific findings in connection with an application for a special permit. This section appears to specifically contemplate the construction completed by Defendants: “a special permit accessory apartment may be created by enlargements or additions to the existing principal structure . . .” Therefore, this court concludes that Defendants’ New Accessory Apartment is not permitted by-right under Bylaw Section 135-19C and requires a special permit pursuant to Bylaw Section 135-19D.

Although, not clear from its decision, it appears that the Board upheld the Building Inspector because it determined that the New Accessory Apartment was not a dwelling unit, and therefore, could not be considered an accessory apartment at all. A dwelling unit is defined by Bylaw Section 135-8 “[o]ne or more rooms designed, occupied or intended for occupancy as separate living quarters, with cooking, sleeping and sanitary facilities provided within the dwelling unit for the exclusive use of a single family maintaining a household.” At the Board hearing, Defendants’ counsel represented that the renovated garage space would not have a kitchen or any cooking facilities. Instead, Defendants’ counsel represented that it would only be a bedroom for the use of the Mr. Alex’s elderly father. Nonetheless, whatever was planned or represented at the time of the public hearing, this court has found that the structure does contain a kitchen equipped with cooking facilities, as well as a bathroom, living room/den, and bedroom. Consistent with this court’s findings, at trial Defendant’s counsel conceded that the New Accessory Apartment is a dwelling unit.

Therefore, the decision of the Board is annulled and this case is remanded to the Board for a determination of whether Defendants are entitled to a special permit under Bylaw Section135-19D. In considering that question, the Board is bound by the facts found by this court. Defendants have thirty (30) days from the date of this decision to file an application for a special permit with the Board and the Board has an additional thirty days to notice and hold a public hearing on Defendants’ application. This court retains jurisdiction of any appeal taken from the Board’s decision after remand.

Karyn F. Scheier

Chief Justice

Dated: April 27, 2009