MISC 08-383847

July 21, 2010

Sands, J.


Plaintiff Linda Hamilton filed her unverified complaint on September 10, 2008, appealing, pursuant to the provisions of G. L. c. 40A, § 17, Defendant City of Brockton Zoning Board of Appeals’ (the “ZBA”) denial of a variance application pertaining to property located at 78 Manomet Street in Brockton, Massachusetts (“Locus”). [Note 2] A case management conference was held on November 24, 2008, where the parties discussed remanding the matter back to the ZBA and adding a count challenging an interpretation of the Ordinance. Thereafter, this court issued a Remand Order on December 3, 2008. On April 3, 2009, the ZBA filed an Answer to the Amended Complaint. [Note 3]

Plaintiff filed her Motion for Summary Judgment on December 1, 2009, together with supporting memorandum, Statement of Material Facts, and Affidavits of Linda Hamilton and John McCluskey, Esq. On April 6, 2010, Defendants filed an Opposition and Cross-Motion for Summary Judgment, together with supporting memorandum and Statement of Undisputed Facts. A hearing was held on both motions on April 7, 2010, at which time both motions were taken under advisement.

Summary judgment is appropriate where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. See Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c).

I find that the following material facts are not in dispute:

1. Plaintiff resides at Locus, which is located in a R-1C zoning district under the Ordinance and which contains a single-family house and a detached one-car garage. On July 8, 2008, Plaintiff applied to the City Building Department for a building permit to build a detached two-car garage in place of the one-car garage. Plaintiff was advised that she needed to obtain a variance from the requirements of Section 27-25(2) of the Ordinance (“Section 27-25(2)”) regarding the size of the garage. On July 8, 2008, Plaintiff applied to the ZBA for a variance for the garage. By decision dated August 12, 2008, the ZBA denied Plaintiff’s application for a variance (“ZBA Decision 1”). Plaintiff appealed ZBA Decision 1 to this court on September 10, 2008.

2. By Remand Order dated December 3, 2008, the parties remanded this matter to the ZBA. The ZBA issued another decision on January 13, 2009, again denying the application for a variance (“ZBA Decision 2”). On March 20, 2009, Plaintiff appealed ZBA Decision 2 to this court.


The central issue before this court is the interpretation of the validity of Section 27-25(2) as applied to Locus pursuant to G. L. c. 240, § 14A. [Note 4] Case law is clear as to the standard of review to be applied in such inquiries.

Every presumption is to be afforded in favor of the validity of an ordinance and if its reasonableness is fairly debatable the judgment of the local authorities who gave it its being will prevail. . . . It will be sustained unless there exists no substantial relation between it and the expressed purposes of the statute. Conversely, it will be held invalid if it be arbitrary or unreasonable, or substantially unrelated to the public health, safety, convenience, morals or welfare. . . . The burden is on the petitioner to show that the by-law is in conflict with the enabling act or with applicable statutory provisions.

Anderson v. Wilmington, 347 Mass. 302 , 303 (1964) (internal quotations and citations omitted). Section 27-25(2) states as follows:

Permitted accessory uses. Any accessory use in an R-1 Zone shall not occupy more than thirty (30) percent of one floor of the principal building or more than an equivalent floor area in an accessory building.

a. Private garage.

b. Other customary accessory uses and buildings, provided such uses are incidental to the principal use and do not include any activity commonly conducted as business. Any accessory building or use shall be located on the same lot as the principal building.

Plaintiff argues that this language controls only the use of an accessory structure and not the size of the accessory structure which houses such use. Specifically, Plaintiff claims that this section simply limits the area allowed for the parking of cars within the garage to 30% of the floor area of the single-family house, but that the size of the garage itself is not controlled through Section 27-25(2). Defendants contend that Section 27-25(2) controls the size of the accessory structure in addition to the use, and that the size of the floor area of the garage is limited to 30% of the floor area of the first floor of the single-family house.

This court agrees with Defendants’ interpretation of the Ordinance for several reasons. To begin, consistent with Plaintiff’s position, there would be no limit to the size of the garage, except for the minimal dimensional requirements found in Section 27-20 of the Ordinance. [Note 5] Second, the definition section of the Ordinance (Section 27-61) states that a private garage is “a detached, or attached accessory building used only for the storage of private passenger vehicles owned or rented.” As such, it appears that private vehicle storage is the sole use permitted in a private garage. Under Plaintiff’s theory, the other 70% of the garage could not be utilized. Third, this court is unconvinced by Plaintiff’s argument that Section 27-25(2) governs only uses, rather than uses and structures. Support for this is found in Section 27-19 of the Ordinance, which allows two accessory structures in a R-1C zone. Under Plaintiff’s analysis, only 30% of each accessory building could be used for the accessory use. For example, only 30% of a garage could be used for parking and only 30% of a shed could be used for the storage of equipment. [Note 6] Finally, as previously stated, case law makes clear that a local board is given certain discretion in the interpretation of its own zoning bylaws, and that such interpretation would be overturned only if it were arbitrary. See Anderson, 347 Mass. at 303. Defendants’ interpretation of the Ordinance is not unreasonable to this court. [Note 7] In light of the above, I find that Plaintiff has failed to satisfy her burden to prove the invalidity of Section 25-27(2) as applied to Locus.

As a result of the foregoing, I DENY Plaintiff’s Motion for Summary Judgment and ALLOW Defendants’ Cross-Motion for Summary Judgment.

Judgment to enter accordingly.

Alexander H. Sands, III


Dated: July 21, 2010


[Note 1] When Plaintiff filed her Amended Complaint adding a count pursuant to G. L. c. 240, § 14A, as discussed infra, she failed to add the City of Brockton (the “City”) as a Defendant as required by statute. This court initiated a conference call to the parties on April 7, 2010, at which time Plaintiff agreed to orally amend her Complaint to add the City as a Defendant, and the City agreed to accept service in that regard. As a result, the City and the ZBA are both named Defendants in the case at bar.

[Note 2] Plaintiff filed an Amended Complaint on December 2, 2008, adding a count pursuant to G. L. c. 240, § 14A, which challenged the City’s interpretation of a section of the City of Brockton Ordinance (the “Ordinance”). Plaintiff filed a Second Amended Complaint on March 20, 2009, adding a count pursuant to G. L. c. 40A, § 17, to appeal a remand decision of the ZBA relative to a denial of a second variance application.

[Note 3] The Answer was executed by Philip C. Nessrella, Jr., Assistant City Solicitor for the City of Brockton.

[Note 4] Neither Plaintiff nor Defendants address the merits of the variances denied by ZBA Decision 1 and ZBA Decision 2 in their summary judgment memoranda. At the summary judgment oral argument, Plaintiff conceded that she did not have a compelling legal argument justifying the variances and, as such, agreed to withdraw the counts of her Complaint relative to ZBA Decision 1 and ZBA Decision 2.

[Note 5] Section 27-20 deals primarily with setback requirements for a detached accessory building. There is also a 25% maximum lot coverage protection in an R-1C zone.

[Note 6] Plaintiff compares the area of use of a detached accessory building to the area of use of the principal building. If the accessory use were in the principal building, it would make sense that the accessory use could only be 30% of the floor area, as the main use of the building would be residential use. In a detached accessory building, however, the accessory use is the principal use of the building and it is unreasonable to limit such use to 30% of the accessory building.

[Note 7] Because of the confusion in the interpretation of the Ordinance, however, the City may wish to consider amending the Ordinance to clarify the language.