ANTHONY PELULLO as trustee of the Pelullo Family Nominee Trust v. MICHAEL HICKEY JR., PAUL MULKERRON, LAURA GODIN, SCOTT LANDGREN and KATHRYN COUGHLIN as members of the Natick Zoning Board of Appeals, and PAUL CROFT

Introduction

This case is plaintiff Anthony Pelullo’s G.L. c. 40A, §17 appeal of a decision by defendant Natick Zoning Board of Appeals (the Board), upholding the validity of a building permit issued to co-defendant, Paul Croft, to construct a single-family residence on the property known as Lot 1A in Natick. Mr. Pelullo has moved for summary judgment, claiming the building permit is invalid because Lot 1A does not meet the 125 foot lot depth requirement of the Natick zoning bylaws. The defendants have cross-moved for summary judgment in their favor, saying that it does. For the reasons set forth below, the plaintiff’s motion is ALLOWED and the defendants’ is DENIED. The Board’s decision is REVERSED and VACATED and the building permit ANNULLED.

Facts

Summary judgment may be entered when there are no genuine disputes of material fact on the claims put in issue by the motion, and the moving party is entitled to judgment on those undisputed facts as a matter of law. Mass. R. Civ. P. 56(c); Ng Bros. Constr. v. Crannery, 436 Mass. 638 , 643-644 (2002). When considering a motion for summary judgment, the court “does not pass upon the credibility of witnesses or the weight of the evidence or make its own decision of facts.” Atty Gen. v. Bailey, 386 Mass. 367 , 370 (1982) (citations omitted). All material facts must be viewed, and all reasonable inferences from those facts must be drawn, in the light most favorable to the party opposing the motion. Id. at 371.

The following facts are not in genuine dispute. Plaintiff Anthony Pelullo, as trustee, is the owner of the single family residence at 40 Oxford Street in Natick. On July 12, 2010, defendant Paul Croft applied for a building permit for the construction of a single family dwelling on the land at 15 Upland Road, Lot 1A, [Note 1] which abuts the Pelullo property. [Note 2] (Plaintiff’s Statement of Undisputed Facts, ¶ ¶ 1- 2; Defendants’ Statement of Undisputed Material Facts, ¶ 1). At the time of his application, Mr. Croft was under contract to purchase additional undeveloped land located on Upland Road in Natick and Edgemore Road in Wellesley from H&R Development (Lot 1B). [Note 3] (Defendants’ Statement of Undisputed Material Facts, ¶ 1). He has since acquired that land.

Mr. Pelullo opposed the building permit because, among other reasons, Lot 1A did not meet the 125 foot minimum lot depth required by the zoning bylaws. [Note 4] (Plaintiff’s Statement of Undisputed Facts, ¶ 3; Defendants’ Statement of Undisputed Material Facts, ¶ 2). Instead, the horizontal distances between the front and rear lot lines of Lot 1A ranged from 70.9 feet to 86.1 feet. See Exhibit 1. (Plaintiff’s Statement of Undisputed Facts, ¶ 8). Despite Mr. Pelullo’s objection, the Building Inspector issued a building permit for Lot 1A on July 16, 2010, ruling that the lot depth could be measured diagonally and, on the diagonal he used, the 125 foot minimum was satisfied. See Exhibit 1 (Plaintiff’s Statement of Undisputed Facts, ¶ 9; Defendants’ Statement of Undisputed Material Facts, ¶ 3).

Mr. Pelullo then appealed the Building Inspector’s decision to the Board, requesting that the Board revoke Mr. Croft’s building permit. (Plaintiff’s Statement of Undisputed Facts, ¶¶ 10 and 12; Defendants’ Statement of Undisputed Material Facts, ¶ 4). The Board issued its decision on November 9, 2010, denying Mr. Pelullo’s request and affirming the issuance of the permit, based on its ruling that the Building Inspector’s procedure for determining lot depth was “reasonable, appropriate, and consistent with established practices and procedures.” (Plaintiff’s Statement of Undisputed Facts, ¶ 12; Defendants’ Exhibit 8, p. 4). On November 24, 2010, Mr. Pelullo timely appealed the Board’s decision to this court alleging, among other things, insufficient lot depth. (Defendants’ Statement of Undisputed Material Facts, ¶ 5).

Both Mr. Pelullo and Mr. Croft have now moved for summary judgment.

Discussion

The Applicable Principles of Bylaw Construction

The dispositive question at issue in the cross motions for summary judgment is whether the Building Inspector improperly granted the building permit, and the Board improperly affirmed that decision, based on an invalid interpretation of the phrase “lot depth” in the zoning bylaw.

The interpretation of a bylaw is a question of law for the court “to be determined by the ordinary principles of statutory construction.” Kurz v. Bd. of Appeals of N. Reading, 341 Mass. 110 , 112 (1960); Needham Pastoral Counseling v. Bd. of Appeals of Needham, 29 Mass. App. Ct. 31 , 33 (1990). The courts defer to the bylaw interpretations of local officials only when such construction is reasonable. See Wendy’s Old Fashioned Hamburgers of New York, Inc. v. Bd. of Appeals of Billerica, 454 Mass. 374 , 381 (2009). It is not reasonable when the interpretation ignores or misapplies the words of the bylaw, construed in accordance with their common, everyday meaning. See Al-Harbi v. Parlee, 9 LCR 33 , 35 (Mass. Land Ct. 2001) (Green, J.) and cases cited therein. Past misinterpretations do not bind the building inspector or any municipal board, and a municipality is not estopped from the proper enforcement of its bylaws by any of its past or present acts. “The right of the public to have the zoning by-law properly enforced cannot be forfeited by the actions of a municipality’s officers. Nor can a permit legalize a structure or use that violates [a] zoning by-law.” Bldg. Comm’r of Franklin v. Dispatch Commc’ns of New England, Inc., 48 Mass. App. Ct. 709 , 715 (2000) (internal citations and quotations omitted).

The “Lot Depth” Requirement of the Natick Zoning Bylaws

The Croft property is in an RSA District, which requires 125 feet of “lot depth.” Natick Zoning Bylaws, p. II-1 and Table IV-B at p. IV-3. The case thus turns on whether Lot 1A meets the 125 foot lot depth requirement.

As previously noted, the Natick zoning bylaws do not define the phrase “lot depth.” They provide, however, that undefined terms “shall have their ordinarily accepted meanings or such as the context may imply.” Natick Zoning Bylaws, p. I-21. The dictionary defines “depth” as “the distance from the front to back of something.” Concise Oxford Dictionary, 10th Ed. at 385 (1999). I thus apply this ordinarily accepted meaning and, in addition, look at bylaws from other Massachusetts towns for corroboration. “Lot depth” in these bylaws is either the shortest distance or the mean distance between the front and rear lot lines. [Note 5] Lot 1A fails either of these measures. [Note 6]

The defendants contend that the Building Inspector relied on the “established practices and procedures of the Building Department” when he measured Lot 1A because the lot was determined to be “odd shaped.” [Note 7] But there is no rational basis for this. An angled measurement is not “front to back,” and Lot 1A is not “odd shaped” by any rational definition. As can readily be seen by looking at its plan, Lot 1A is a relatively uniform rectangle with clearly identifiable front and rear lot lines. See Exhibit 1. Aside from the Building Inspector’s bare assertion that Lot 1A was odd shaped, the defendants have neither provided a definition of “odd shaped lots,” nor presented any evidence as to how the Building Inspector or the Board determines that a given lot is odd shaped. The affidavit of the Building Inspector references “established practices and procedures of the Building Department,” but fails to explain in any detail what those practices and procedures are. There is no basis for any such approach in this situation.

In sum, neither the Building Inspector nor the Board conducted a measurement of Lot 1A’s “lot depth” in accordance with the ordinarily accepted meaning of the term. When the interpretation of an otherwise undefined bylaw term ignores its everyday meaning, that interpretation cannot be deemed reasonable and is thus invalid. See Natick Zoning Bylaws, p. I-21; Al-Harbi, 9 LCR at 35; G.L. c. 4, §6 (Third).

The Subsequent Reconfiguration of the Lot and Mootness

Mr. Croft argues that Lot 1A has now been reconfigured into a larger lot with sufficient lot depth, and therefore the plaintiff’s challenge is now moot. See Exhibit 2. The following additional facts relevant to this contention are not in dispute.

On June 3, 2011, the Needham Cooperative Bank foreclosed on its mortgage from H&R Development LLC which covered H&R’s entire property along the east side of Upland Road. (Defendants’ Statement of Undisputed Material Facts, ¶ 6). On July 5, 2011, Natick Upland LLC purchased the property that was foreclosed on from the bank and transferred a portion of the premises along with a single family dwelling that was the subject of the building permit to a buyer (the Wares). (Defendants’ Statement of Undisputed Material Facts, ¶¶ 7-9). In making the conveyance, Natick Upland LLC utilized the legal description from a previously recorded ANR plan, namely-Lot 1, Parcel 1, Lots 69 & 70 (as shown on the 2004 ANR Plan). (Defendants’ Statement of Undisputed Material Facts, ¶ 8). This “new” lot, essentially Lots 1A, 1B and additional land on Edgemoor Avenue in Wellesley, is shown on Exhibit 2. It is approximately 509 feet long and no more than 86.1 feet wide at any point except in the 40 feet at its extreme north, which has a “tail” extending over to Edgemoor Avenue. See Exhibit 2.

Based on these facts, the defendants contend that Lot 1A’s legal existence ended with the conveyance of the parcel to the Wares and that the Ware parcel now constitutes a lawful building lot that complies with the lot depth requirement. I disagree. The “tail” at the northernmost 40 feet of the reconfigured parcel (or about 1/12 of its frontage) extends approximately 175 feet to Edgemoor Avenue. See Exhibit 2. But just because a small portion of the property exceeds the 125 foot requirement does not mean that the parcel has sufficient “lot depth” according to the ordinary meaning of the term. Recall the commonly-accepted definitions of “lot depth” discussed above — either the shortest distance front to back or the mean front to back distance. Under either of those definitions, the reconfigured lot still fails to meet the 125 foot requirement in the bylaws. The shortest distance between the front and rear lot lines still measures 70.9 feet. Similarly, the mean horizontal distance between the front and rear lot lines of the reconfigured lot is no more than 94 feet. [Note 8] To say, as the Building Inspector did, that the lot depth requirement of the bylaw is satisfied if any part of the lot, no matter how small, exceeds 125 feet, is clearly incorrect. [Note 9]

Furthermore, the reconfiguration of the lot did not extinguish the controversy at issue in this G.L. c. 40A, §17 appeal, which is the validity of the building permit that was issued. “Cases become moot because of material changes in…ordinances on which a claim is based.” Woods v. Leek, 16 LCR 771 , 771 (Mass. Land Ct. 2008) (Scheier, C. J.) (quoting Flint v. Comm’r of Pub. Welfare, 412 Mass. 416 , 419 (1992)). Unlike Woods, the Town of Natick has made no material changes to its bylaws, such as providing a definition of “lot depth,” that would render this case moot. What the defendants have relied on, in this case, is a reconfigured lot, but this lot likewise fails to meet the 125 foot lot depth requirement when viewed in light of the ordinarily accepted meaning of lot depth. Thus, the reconfigured lot does not make this case moot. The central question of whether the Building Inspector issued and the Zoning Board affirmed a building permit based on an invalid interpretation of the phrase “lot depth” still exists, and it is a question this court is able to resolve and has resolved.

Conclusion

For the reasons set forth above, the plaintiff’s motion for summary judgment is ALLOWED and the defendants’ motion for summary judgment is DENIED. The Board’s decision is REVERSED and VACATED and the building permit ANNULLED.

Judgment shall enter accordingly.

SO ORDERED.

Exhibit 1

Exhibit 2