RICHARD P. DESANTIS and DIANE L. DESANTIS vs. LYNN MURPHY, STEPHEN BRICKETT, NICHOLAS YEBBA, ANNE COTE, BARABRA PISELLI, JAMES E. FOX and CRAIG HARTWELL, members of the TOWN OF MIDDLETON ZONING BOARD OF APPEALS

Plaintiffs filed their unverified complaint on September 29, 2008, appealing, pursuant to the provisions of G. L. c. 40A, § 17, Defendant Town of Middleton (the “Town”) Zoning Board of Appeals’ (the “ZBA”) decision which upheld the Town Building Commissioner’s (the “Building Commissioner”) denial of a building permit pertaining to property located at 58 South Main Street, Middleton, Massachusetts (“Locus”). [Note 1] A case management conference was held on December 1, 2008, and this court issued a Remand Order on February 19, 2009. [Note 2]

Plaintiffs filed their Motion for Summary Judgment on December 15, 2009, together with supporting memorandum. The ZBA filed its Opposition and Cross-Motion on February 10, 2010, together with supporting memorandum. Plaintiffs filed their reply on February 23, 2010. A hearing was held on both motions on May 10, 2010, at which time the 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 the following material facts are not at issue:

1. Locus was created by plan dated April 9, 1945, and recorded with the Essex South District Registry of Deeds (the “Registry”) at Book 3448, Page 378. [Note 3] Locus contains 6,090 square feet and abuts both: (1) the south side of Old South Main Street, and (2) the north side of South Main Street (Route 114). Locus uses Old South Main Street as its access. Locus is shown on Middleton Assessors’ Map 25 as Lot 86. Locus is also shown on “Plan of Land in Middleton,” dated August 3, 2009, and prepared by John J. Decoulos (the “2009 Plan”). The 2009 Plan shows that Locus has 105.25 feet of frontage along South Main Street and 113.27 feet of frontage along Old South Main Street. The 2009 Plan also shows a proposed house on Locus with a set back of 11.5 feet from South Main Street and an angled set back ranging from approximately fifteen to twenty feet from Old South Main Street. [Note 4]

2. The 1937 version of the Town Zoning Bylaw (the “1937 Bylaw”) was applicable at the time that Locus was created in 1945. Specifically, the first paragraph of Section 6 within Part III of the 1937 Bylaw (the “1937 Bylaw Exception”) states that “[n]o building or structure in a residential district shall extend nearer any street line than sixty feet, except that if there is a principal building upon each side and within 500 feet of the building in question and then only on a line with said building.” [Note 5], [Note 6]

3. Plaintiffs purchased Locus from F. Peter DeSantis by deed dated October 17, 1996, and recorded with the Registry at Book 13809, Page 345.

4. A ZBA decision dated September 24, 1998, found that Locus conformed to the 1937 Bylaw in total area and frontage, but did not find that Locus was a legal building lot. This decision expressly stated that “[t]he petitioner understands this vote is only for the land, that it is “grandfathered” and that this vote does not constitute this is a legal binding lot under current by-laws or past by-laws, but only that it is a legal size lot under past zoning.”

5. In 2007, Plaintiffs applied to the Building Commissioner for a building permit for a single-family house on Locus. A Sewage Disposal System plan dated July 27, 2006 (the “2006 Plan”) was filed with such application. The application was denied on April 24, 2007, and appealed to the ZBA on May 10, 2007. Such appeal was withdrawn on June 21, 2007. Plaintiffs reapplied for a building permit in 2008.

6. By letter dated May 15, 2008, the Building Commissioner denied the new request for a building permit.

7. By application dated May 28, 2008, Plaintiffs appealed the Building Commissioner’s denial to the ZBA.

8. The ZBA denied Plaintiffs’ appeal (“ZBA Decision 1”) by decision dated August 7, 2008, and filed with the Town Clerk on September 29, 2008.

9. Plaintiffs appealed ZBA Decision 1 to this court on September 29, 2008.

10. This court remanded this matter to the ZBA by Remand Order dated February 19, 2009, and an Amended Remand Order on May 4, 2009. The ZBA issued its remand decision dated November 13, 2009, again denying Plaintiffs’ appeal (“ZBA Decision 2”).

11. The lot abutting Locus to the west (Assessors’ Map 25, Lot 85) (“Lot 85”) is vacant. This lot abuts both Old South Main Street and South Main Street. Lot 85 is shown on the 2009 Plan.

12. The lot abutting Locus to the east (Assessors’ Map 25, Lot 87) (“Lot 87”) contains an existing house and a garage numbered 62 South Main Street, Middleton. This lot abuts both Old South Main Street and South Main Street, but uses Old South Main Street for its access. Lot 87 is shown on the 2009 Plan.

13. There is a lot improved with a house numbered 50 South Main Street (Assessors Map 25, Lot 81) (“Lot 81”) to the west of, and within 500 feet of Locus, which fronts on the north side of South Main Street. This lot uses South Main Street as its access. A portion of Lot 81 is shown on the 2009 Plan.

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The sole issue in this case, as agreed to by the parties, is whether Locus complies with the front (street) yard set back requirements of the 1937 Bylaw Exception. As an appeal pursuant to G. L. 40 A, § 17, ZBA Decision 2 must be upheld unless this court finds it to be arbitrary, capricious or unreasonable. See Roberts v. Sw. Bell Mobile Sys., Inc., 429 Mass. 478 , 485-86 (1999).

Plaintiffs argue that Locus is a buildable lot pursuant to G. L. c. 40A, § 6, as it complies with the 1937 Bylaw Exception, and that, as a result, ZBA Decision 2 is in excess of the authority of the ZBA. [Note 7] The ZBA acknowledges that Locus complies with the 1937 Bylaw as to lot area and frontage, but not as to front-yard set back, and argues that ZBA Decision 2 is within its authority because the building permit did not comply with the 1937 Bylaw Exception.

In general, the first paragraph of the 1937 Bylaw Exception prohibits buildings or structures in a residential zoning district within sixty feet from a street. This section, however, also provides an exception, the interpretation of which is at the heart of the case at bar. Pursuant to the 1937 Bylaw Exception, a structure may be closer than sixty feet to a street “if there is a principal building upon each side and within 500 feet of the building in question and then only on a line with said building.” In arguing that Locus complies with this language, Plaintiffs look to Locus’ abutting lots: Lot 85 and Lot 87. Lot 85 is vacant land and contains no principal building, and Lot 87 contains an existing house which Plaintiffs assert is built “on a line” with the proposed dwelling on Locus. [Note 8] As a result, Plaintiffs reason that Locus complies with the 1937 Bylaw Exception, as the only abutting lot with a principal building (Lot 87) has such building on a line with the house proposed on Locus. [Note 9] The ZBA, on the other hand, contends that Locus does not comply with the front yard requirement of the 1937 Bylaw because a principal building does not exist on both sides of Locus as required by the 1937 Bylaw Exception. The ZBA also interprets the phrase “on a line with said building” contained within the 1937 Bylaw Exception as requiring the proposed house on Locus to have the same set back distances as the exiting principal building. The ZBA then argues that Locus violates the 1937 Bylaw Exception because Locus’ proposed dwelling has a set back less than the existing house’s set back on Lot 87.

In the alternative, Plaintiffs argue that even if the 1937 Bylaw requires that there be a house on both sides of Locus for the exception to apply, then Lot 81 (which is within 500 feet of Locus) can be used for comparative purposes. Plaintiffs assert that, as shown on the 2009 Plan, the western most portion of the house on Lot 81 is on the same “line” with the eastern boundary of the proposed house on Locus. The ZBA claims that because Lot 81 is on the north side of Old South Main Street and that the proposed house on Locus is on the south side of Old South Main Street, Locus cannot rely upon Lot 81 to comply with the 1937 Bylaw Exception. [Note 10]

Plaintiffs’ primary argument is that the 1937 Bylaw Exception only requires a principal building on a single side of Locus to allow for the creation of the set back reference line; at the same time, Plaintiffs suggest that the actual distance of such existing building’s set back is irrelevant. However, in order for the exception to make sense, the set back reference line must connect two separate fixed points in space. Plaintiffs’ theory fails as it seeks to create a reference line with a single point. In light of the above, the 1937 Bylaw Exception has two relevant possible interpretations. The first uses a principal building on either side of Locus (within 500 feet) to create the reference line; the second uses a single principal building in addition to that building’s actual set back distance. Plaintiffs’ position is unpersuasive regardless of how the phrase “on a line with said building” is interpreted.

One potential interpretation, as suggested by the ZBA, requires that the proposed house on Locus must have the same set back distances as the exiting principal building on Lot 87. The 2009 Plan is clear in showing that Plaintiffs cannot prevail under such a theory given that the 2009 Plan reveals that the proposed setbacks for the house on Locus (approximately fifteen to twenty feet) are at no point along Old South Main Street equal to the set backs of the existing house on Lot 87 (approximately twenty-five feet). A second possible interpretation of the 1937 Bylaw Exception envisions a line connecting the existing dwelling on Lot 87 to the existing dwelling on Lot 81. [Note 11], [Note 12] This alternate argument also fails, as Lot 81 is on the opposite side of Old South Main Street from Locus. Additionally, Lots 81 and 87 use different streets for access, as the house on Lot 81 uses South Main Street and the house on Lot 87 uses Old South Main Street. Moreover, this theory does not coincide with the purpose of uniformity behind the 1937 Bylaw. [Note 13]

Finally, the interpretation by a local board of its own zoning bylaws is entitled to a certain degree of deference. Tanner v. Bd. of Appeals of Boxford, 61 Mass. App. Ct. 647 , 649 (2004). “Where the board’s interpretation is reasonable, . . . the court should not substitute its own judgment.” Id. The ZBA’s reading of the 1937 Bylaw is not unreasonable given the summary judgment record before the court.

In light of the above, I find that ZBA Decision 2 is valid and is not arbitrary, capricious or unreasonable, or in excess of the ZBA’s authority. As a result of the foregoing, I DENY Plaintiffs’ Motion for Summary Judgment and ALLOW the ZBA’s Cross-Motion for Summary Judgment.

Judgment to enter accordingly.

Alexander H. Sands, III

Justice

Date: July 28, 2010