Home THOMAS BOUKOUVALAS, trustee of the Wood Street Middleboro Realty Trust v. BRUCE ATWOOD, EDWARD BRAUN, NORMAN DIEGOLI, ELIZABETH ELGOSIN and ERIC PRIESTLY as members of the Town of Middleborough Zoning Board of Appeals.

MISC 08-385041

February 1, 2010


Long, J.



Plaintiff Thomas Boukouvalas, as trustee of the Wood Street Middleboro Realty Trust, applied for and was denied a special permit to convert and use a building on the property at 255-259 Wood Street in Middleborough as a three-family dwelling. The parties agree that this conversion would only be permissible, if at all, pursuant to § IV.A.2.i of the town’s zoning bylaw, which allows the following by special permit:

Conversion of a residential building in existence as of January 1, 1978, to include a total of three dwelling units, including the owner-occupied unit in the dwelling without any increase in floor area. As a condition of the special permit, the owner must occupy one dwelling unit.

Zoning By-Laws of the Town of Middleborough, § IV.A.2.i. The defendant Zoning Board of Appeals denied the plaintiff’s special permit application by a unanimous vote based on their findings that “[t]he proposed site [was] inappropriate for the use and structure,” “[t]he use involved [would] be detrimental to the established and future character of the neighborhood and town and can not [sic] be subject to appropriate conditions and safeguards,” there would be “a potential nuisance to area residents,” and “[a]dequate and appropriate facilities can not [sic] be provided to insure the proper operation of the use and structure.” Town of Middleborough Zoning Bd. of Appeals Decision in Case 08-14 at 4 (Aug. 28, 2008). The plaintiff appealed that denial to this court, alleging that it was arbitrary and capricious and exceeded the authority of the board.

The defendants have now moved for summary judgment dismissing the plaintiff’s appeal, contending that based upon the undisputed facts, the building at issue was not “a residential building in existence as of June 1, 1978” (the parties agree that it was a horse barn until 1980) and thus, as a matter of law, the bylaw is inapplicable and the building cannot be converted to a three-family dwelling. The plaintiff counters by arguing that the bylaw only requires that the building have existed on June 1, 1978 and be a residence today and arguing in the alternative that at least part of the barn was residentially occupied prior to 1978.

As more fully discussed below, I agree with the defendants and ALLOW their motion for summary judgment. The plain language of the bylaw as consistently interpreted and applied by the town’s building inspector and Zoning Board of Appeals requires the building to have been a residence on June 1, 1978, the plaintiff concedes that it was a horse barn on that date, and there is no admissible proof that any part of it was in residential use at that time.


Summary judgment is appropriately entered when, as here, “there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law.” Mass. R. Civ. P. 56; Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty Nat’l Bank v. Dawes, 369 Mass. 550 , 553 (1976). “Where the evidence clearly shows facts which justify the decision of the board, its action should be sustained even though its decision was not based on that evidence.” Parrish v. Bd. of Appeal of Sharon, 351 Mass. 561 , 568 (1967). As noted above, the parties agree that the plaintiff only is entitled to a special permit, if at all, pursuant to § IV.A.2.i. Thus, even though the board did not base its denial of the plaintiff’s special permit application pursuant to § IV.A.2.i, as a matter of law, I may affirm the board’s decision if the plaintiff’s application fails to meet the requirements of that section. I thus turn to an analysis of the bylaw.

The interpretation of bylaws “is a question of law” for the court, “to be determined by the ordinary principles of statutory construction.” Framingham Clinic, Inc. v. Zoning Bd. of Appeals of Framingham, 382 Mass. 283 , 290 (1981).

Where the language of a statute is clear and unambiguous, it is conclusive as to legislative intent, and the courts enforce the statute according to its [plain] wording, which we are constrained to follow . . . [so long as] its application would not lead to an absurd result. . . . [W]hen a statute speaks with clarity to an issue[,] judicial inquiry into the statute’s meaning, in all but the most extraordinary circumstance, is finished. [We] need not look beyond the words of the statute itself in such a case, even if we . . . recognize a potential unfairness within a statute’s clear language . . . [or] that a statute creates a potential anomaly.

Martha’s Vineyard Land Bank Comm’n v. Bd. of Assessors of West Tisbury, 62 Mass. App. Ct. 25 , 27-28 (2004) (internal citations and quotations omitted, alterations in original). “When statutory language . . . is sufficiently clear . . . we need not seek further enlightenment from other sources.” Id. at 30-31 (same); see also Welch v. Sudbury Youth Soccer Ass’n, Inc., 453 Mass. 352 , 355 (2009) (“Words are to be accorded their ordinary and approved usage. Where, as here, the language of a statute is clear and unambiguous, it is conclusive as to the intent of the Legislature.”).

The bylaw language is clear and unambiguous. “Conversion of a residential building in existence as of January 1, 1978” means exactly that. The building to be converted must have been a lawful residential building on January 1, 1978 and at the time the special permit request is made. The plaintiff’s argument that only the building need to have existed on January 1, 1978 ignores the immediately preceding word “residential” and thus fails. See Sperounes v. Farese, 449 Mass. 800 , 804 (2007) (statutes 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”) (internal citations and quotations omitted); Wolfe v. Gormally, 440 Mass. 699 , 704 (2004) (statutes to “be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous.”) (internal citations and quotations omitted). To the extent there is any ambiguity, it is resolved by another rule of statutory construction: deference is to be given to a board’s interpretation of its own bylaw if that interpretation is reasonable. Livoli v. Zoning Bd. of Appeals of Southborough, 42 Mass. App. Ct. 921 , 923 (1997); Tanner v. Bd. of Appeals of Boxford, 61 Mass. App. Ct. 647 , 649 (2004). Here, the town’s building inspector and board have consistently interpreted and applied the bylaw as I have construed it. Aff. of Bruce Atwood at 2, ¶ 3 (Sept. 23, 2009); Aff. of Robert Whalen at 3, ¶ 8 (Sept. 18, 2009).

The plaintiff argues in the alternative that the structure was used, in part, for residential purposes on January 1, 1978 and thus qualifies for conversion under bylaw § IV.A.2.i. The plaintiff, however, has failed to offer any admissible evidence that shows such use. The parties each admit that the structure was built and used as a horse barn and that a building permit to convert its second floor to a single-family dwelling was not issued until June 25, 1980. Atwood Aff. at 2, ¶ 7 and attached building permit; Plaintiff Thomas Boukouvalas’s Response to Defendant, ZBA’s Statement of Material Facts at 2, ¶ 12. (Nov. 15, 2009). The only evidence of any residential use prior to that time is an unsworn statement at a December 13, 1990 meeting of the zoning board by a Mrs. Hague (represented to be a prior owner of the plaintiff’s property) “that the property was opened as a 22-horse stall barn in 1976 and a caretaker did live there then.” Plaintiff Thomas Boukouvalas’s Response to Defendant, ZBA’s Statement of Material Facts at Ex. E, 8. This is inadmissible hearsay, see Commonwealth v. Cohen, 412 Mass. 375 , 393 (1992) (internal quotations and citations omitted), and is insufficient to defeat the defendants’ motion for summary judgment. Mass. R. Civ. P. 56(e). Moreover, even if it was admissible, it does not establish even partial residential use on January 1, 1978 (assuming that partial use would suffice under the bylaw, a point I need not and do not decide). Rather, it only suggests such use in 1976 and the plaintiff’s counsel conceded at oral argument that she did not know whether such use still existed on January 1, 1978.


For the foregoing reasons, the defendants’ motion for summary judgment is ALLOWED and the plaintiff’s G.L. c. 40A, § 17 appeal of the board’s decision is DISMISSED in its entirety, with prejudice. Judgment shall enter accordingly.


By the court (Long, J.)


Deborah J. Patterson, Recorder

Dated: 1 February 2010