ATTLEBORO OB-GYN REALTY ASSOCIATES vs. EDWARD CASEY, KEITH HUTCHINGS, SUSAN WILDMAN, ROBERT MENARD and PAUL MISSION, as they are the members of the ZONING BOARD OF APPEALS FOR THE CITY OF ATTLEBORO.

Plaintiff appeals under G.L. c. 40A, §17 a decision of the defendants upholding a decision of the Inspector of Buildings of the City of Attleboro (the "Building Inspector") refusing a building permit to use a parcel of land in Attleboro for parking.

The parties filed an Agreed Statement of Facts with Exhibits A through E attached, with Statement and Exhibits are incorporated herein for purposes of any appeal. One witness testified, Dr. Rudolph W. Pierce, one of the principals of plaintiff.

On all the evidence I find and rule as follows:

1. Plaintiff is a general partnership with a principal place of business at 687 North Main Street, Attleboro, Massachusetts.

2. Defendants are the duly appointed members of the Attleboro Zoning Board of Appeals (the "Board").

3. Since 1985, plaintiff has operated a medical office building at 687 North Main Street, Attleboro, Massachusetts, on a parcel of approximately 40,000 square feet (the "Office Building Parcel"). The Office Building Parcel is located in a General Residence District under the Attleboro Zoning Ordinance (the "Ordinance"), and a special permit was granted for the medical office building.

4. In 1989, plaintiff acquired an additional parcel of land behind the Office Building Parcel. Locus is located in a Single Residence District. Both parcels now appear combined as Parcel 59E on Attleboro Assessor's Plat 93.

5. Plaintiff then applied to the Building Inspector for a building permit to use a portion of Locus for additional parking for plaintiff's medical office building.

6. By letter dated October 19, 1989, the Building Inspector denied plaintiff's application, stating:

. . . this locus is in a single residence district. As the present use is in the general residence district, parking is only permitted as an accessory use in that district. The land zoned single residence is a different district, and parking in that district would not be accessory, and would violate the zoning ordinance. Accordingly, I must deny you this permit.

7. Plaintiff filed a timely appeal with defendants, and after hearing, defendants issued a decision upholding the Building Inspector.

8. Section 17-3.4, Table of Use Regulations, Section 10-B of the Ordinance provides that a "Professional medical/dental office or building" is not permitted in a Single Residence District and is permitted in a General Residence District only by special permit from the Board of Appeal. As stated above, a special permit was obtained for the plaintiff's medical office building on the Office Building Parcel.

9. Section 17.3.5, Table of Accessory Use Regulations, Section 22, of the Ordinance states that "off-street parking and loading spaces" are permitted in all districts.

10. Section 17-11.2 of the Ordinance defines "Use, Accessory" as: "Non-principal uses, buildings and structures customarily incidental and subordinate to the principal permitted use of the premises occupying not over forty percent of the land or the floor area." The same section defines "Use, Principal" as: "The main or primary purposes for which the use of land or a structure is designed, arranged, or intended, or for which it may be used, occupied or maintained."

11. There is some confusion as to the grounds for the denial of the requested relief. The Building Inspector based his decision on the fact that Locus is in a different zoning district from the Office Building Parcel. I find no basis in the Ordinance for that reasoning. By contrast, there are other provisions concerning the details of required parking. For instance, Section 17-5.6 states that, with certain exceptions, required off-street parking spaces must be on the same lot as the principal use they serve, or, with Board of Appeal approval, within 300 feet thereof; there is nothing in that provision about parking being in the same zoning district.

12. The reasoning of the Board was somewhat different:

The Attleboro Zoning Ordinance definition of Accessory Use quoted above with unnecessary words struck reads, "non principal uses... incidental... to the principal permitted use."

Medical offices are not permitted in single residence districts. Off-street parking located in a single residence district cannot, by definition, be an accessory use to non-permitted principal use. Thus, accessory use off street parking is permitted in all districts if it is truly an accessory use as defined by the ordinance.

13. The Board focused on Locus itself, as did the City's counsel in argument. Their argument is that for parking to be permitted, the principal use it serves must be permitted as of right in the zoning district in which the parking is located, and that zoning considerations as to the Office Building Parcel are irrelevant.

14. I do not find that a reasonable interpretation of the Ordinance and therefore annul the decision of the Board. That interpretation gives the word "permitted" in the definition of "Accessory Uses" undue and improper significance and ignores the simple language of item 22 of the Accessory Use Regulations, making off-street parking spaces permitted in all districts. It may be that defendants' interpretation or some variant would make for a sensible zoning provision, but the present language does not reasonably support that.

15. Defendants' reading has the implication that if the Board grants a special permit for a principal use, its accessory parking is not permitted; presumably a variance would be necessary to establish the parking.

16. Also, the Table of Accessory Use Regulations has three instances in which the Ordinance sets up an accessory use to be dependent on the zoning classification of the principal use, as the Board and Counsel suggest for parking. See for instance, item 12 "Accessory office activity related to a permitted use under Wholesale Transportation and Industrial." Similarly as to Heliport Landing sites (#6) and accessory outside storage (#14). Such treatment is not given to parking.

17. Plaintiff's reading of the Ordinance is consistent with a decision of this Court, J.I.D. Realty Trust v. Salvidio, Misc. Case No. 130645, which admittedly relies on a more expansive definition of "Accessory Use" in the Worcester Ordinance.

18. Defendants make the point that plaintiff's reading of the Ordinance means that if a lot were split, part residential and part industrial, there could be accessory parking on the residential portion serving the industrial use. That is correct, but if such a possibility is seen as threatening, relief should come from an amendment to the Ordinance, not by forcing the plain language of the present Ordinance.

19. Given my reading of the Ordinance, what is left of the word "permitted" in the definition of "Accessory Uses?" That should be read as "permitted, whether as of right or by special permit." That reading is consistent with Section 17-3.1 of the Ordinance, discussing various cases in which uses are permitted, many of which are by special permit. It may be that a use permitted by variance does not fit in this logic, but I need not face that since the principal use here is permitted by special permit (on the Office Building Parcel).

20. For the reasons set forth above, I find and rule that the decision of the Board in this matter is unreasonable and rests on legally untenable grounds and accordingly must be and is annulled.

Judgement accordingly.