IRENE A. CHWALISZEWSKI vs. JOSIAH B. MORRILL, JOHN C. SMITH, and ROBERT G. FRASER, as they constitute the BOARD OF APPEALS OF THE TOWN OF LYNNFIELD, and CHRISTOPHER J. FORD and KATHRYN A. FORD.

Irene A. Chwaliszewski ("Plaintiff") commenced the above-entitled action on February 20, 1987, seeking judicial review, pursuant to G.L. c. 40A, §17, of a decision of the Board of Appeals of the Town of Lynnfield ("Board"), dated January 20, 1987, wherein the Board, pursuant to G.L. c. 40A , §8 and §15, affirmed a decision of the Lynnfield Director of Zoning Enforcement and Inspections ("Building Inspector") refusing to enforce a provision of the Lynnfield Zoning By-law ("By-law") against Christopher J. and Kathryn A. Ford ("Defendants") so as to require their removal of a certain private basketball court ("court") from the rear yard of their property.

On April 9, 1987, the Court heard the Plaintiff's Motion for Summary Judgment, as well as the Defendants' and Boards' Motions for Dismissal, all of which the Court denied. Thereafter on April 29, 1987, the Court viewed the subject premises in the presence of counsel.

On July 27, 1988, the parties filed a "Statement of Agreed Facts" and waived oral arguments on the matter. Certain of these stipulated facts, as well as the exhibit which is attached thereto, are incorporated herein for the purpose of any appeal.

On all of the evidence, I find the following facts:

1. The Plaintiff resides at 1027 Main Street in Lynnfield, Massachusetts.

2. The Defendants reside at 32 Wing Road in Lynnfield, Massachusetts, the rear yard of which property abuts the land of the Plaintiff.

3. In the spring of 1986, the Defendants questioned the Building Inspector as to whether or not a building permit would be necessary prior to their construction of a private basketball court in the rear yard of their property. Upon being informed that no such permit was required, the Defendants installed the court, a portion of which is situated between 17.5 and 20 feet of the rear property line separating the respective properties of the Plaintiff and the Defendants'. This portion of the court consists of asphalt pavement level with the "noncourt" portion of the Defendants' yard.

4. Subsequent to the construction of the basketball court on the Defendants' property, the Plaintiff requested that the Building Inspector issue an Order requiring the removal of said court. On or about October 27, 1986, the Building Inspector denied the Plaintiff's request on the basis that the basketball court did not violate the dimensional requirements set forth in the By-law. Specifically, he reasoned that a basketball court is not a "structure" within the meaning of Section 4(h) of the By-law.

5. The Plaintiff duly appealed the Building Inspector's ruling to the Board, which appeal was heard by the Board on January 13, 1987. Thereafter on January 20, 1987, the Board rendered its decision, affirming the Building Inspector's refusal to issue an Order to the Defendants. This decision was filed in the Office of the Town Clerk for the Town of Lynnfield on February 4, 1987.

6. Section 4(h) of the By-law provides in relevant part that:

In all districts, except as herein provided, no building, swimming pool, tennis court(s) or other structure shall be constructed or placed nearer to . . . the side lines of its lot than the "Required Side Yard Width," or nearer to the rear line of its lot than the "Required Rear Yard Depth," specified in the f ollowing table for the district in which said lot is located.

7. In the zoning district where the parties' respective properties are located, minimum setbacks of twenty (20) feet from the rear yard line and fifteen (15) feet from the side yard line are required.

8. Inasmuch as neither the Lynnfield By-law nor the Massachusetts State Building Code expressly defines a basketball court as a "structure" the Building Inspector has, from 1966 to 1986, consistently interpreted the By-law so as to exclude basketball courts from the definition of "structures".

The duty of the Court in reviewing an appeal brought pursuant to G.L. c. 40A, §17 is to hear the matter de novo, make independent findings of fact and affirm the decision of the Board if it rests on legally tenable grounds and is not arbitrary, capricious, whimsical or unreasonable. MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 639 (1970); Garvey v. Board of Appeals of Amherst, 9 Mass. App. Ct. 856 (1980); Gordon v. Zoning Board of Appeals of Lee, 22 Mass. App. Ct. 343 , 348 (1986). The Court may not substitute its judgment for that of the Board, Subaru of New England v. Board of Appeals of Canton, 8 Mass. App. Ct. 483 , 486 (1979); Garvey at 856, as its review is limited to the validity of the action taken by the Board. Kiss v. Board of Appeals of Longmeadow, 371 Mass. 147 , 154 (1976); Wolfman v. Board of Appeals of Brookline, 15 Mass. App. Ct. 112 , 119 (1983). I find and rule herein that inasmuch as the evidence before the Court fails to establish that a basketball court is a structure within the meaning of Section 4(h) of the Lynnfield Zoning By-law, the Board's decision affirming the ruling of the Lynnfield Building Inspector must be affirmed.

Pursuant to Section 4(h) of the By-law, which is quoted in Finding No. 6 above and which is the only section of the By-law before the Court, buildings, swimming pools, tennis courts and "other structure[s]" are subject to applicable side yard and rear yard setback requirements regardless of the zoning district in which they are situated. Section 4(h) does not, however, make any similar reference to "basketball courts", despite their obvious popularity as a recreational usage. Consequently, the underlying issue as to whether or not the words "other structure[s]", as used in this section of the By-law, are intended to encompass "basketball courts" is essentially a question of law to be determined by the application of ordinary principles of statutory construction. Framingham Clinic, Inc. v. Zoning Board of Appeals of Framingham, 382 Mass. 283 , 290 (1980) citing Kurz v. Board of Appeals of North Reading, 341 Mass. 110 , 112 (1960). Specifically, such zoning provision must be read in the context of the law as a whole, giving the language used therein its common and approved meaning. Salah v. Board of Appeals of Canton, 2 Mass. App. Ct. 488 , 492 (1974) ; Shuman v. Board of Alderman of Newton, 361 Mass. 758 , 766 (1972).

Applying these principles of law to the case at bar, the term "structure" refers to anything "built or constructed". Black's Law Dictionary, 1276 (5th ed. 1979). However, whether a particular thing which is "built or constructed" falls within the purview of the word "structure" as used in a statute, regulation or law depends greatly on its relevant context. Scott v. Board of Appeal of Wellesley, 356 Mass. 159 , 161 (1969). The portion of the By-law governing the matter herein specifically mentions "buildings", "swimming pools" and "tennis courts". Basketball courts are neither expressly listed nor may they be reasonably implied therein so as to constitute "structures". For example, whereas buildings consist of sides and a roof and tennis courts generally require enclosures of a certain height to serve as back stops, a basketball court may be used for its intended purposes in the absence of any similar type of framing or enclosure. In such respect, a basketball court is thus more akin to a patio or a driveway, neither of which is subject to Section 4 (h) of the By­law. In addition, a basketball court is readily distinguishable from a swimming pool in that little to no construction or excavation is necessary for its installation, nor is any enclosure, such as a fence, a common feature. Further, as the basketball nets and backboards are merely incidental to the use and enjoyment of the basketball court itself, they too do not amount to "structures" within the meaning of Section 4(h) of the By-law. [Note 1] Additionally, in so categorizing "buildings", "swimming pools" and "tennis courts" as "structures" within the meaning of the By-law, the Town of Lynnfield in effect excludes by implication other similar matters (i.e., basketball courts) which are not mentioned therein. Board of Selectmen of Hatfield v. Garvey, 362 Mass. 821 , 824 (1973) ; Building Inspector of Chelmsford v. Belleville, 342 Mass. 216 , 218 (1961) ; Foster v. Mayor of Beverly, 315 Mass. 567 , 569 (1944). See Murray v. Board of Appeals of Barnstable, 22) Mass. App. Ct. 473, 479 (1986). Moreover a zoning enactment must be construed to effectuate the Town's intent in adopting it. Southern New England Conference Association of Seventh Day Adventists v. Town of Burlington, 21 Mass. App. Ct. 701 , 709-710 (1986). If, in drafting its By-laws, the Town of Lynnfield had intended to include basketball courts as "structures" within the meaning of Section 4 (h), it should have drafted such provision in pertinent, clear and precise language sufficient to fully apprise a landowner in the position of the Defendants of the need to comply with the setback requirements noted therein. Bell v. Zoning Board of Appeals of Cohasset, 14 Mass. App. Ct. 97 , 105 (1982).

I therefore find and rule that the Defendants' private basketball court, as constructed in the rear yard of their property, rises to the level of a mere use of yard space rather than the erection of a structure requiring compliance with Section 4(h) of the By-law. Accordingly, I decline herein to extend the meaning of "structure" within this section of the By-law to include the basketball court as constructed by the Defendants, and thereby affirm the decision of the Lynnfield Board of Appeals refusing to overturn the Building Inspector's ruling that no Order issue to the Defendants for a violation of Section 4(h) of the By-law.

Judgment accordingly.