DIARMUID O'CONNELL and ELIZABETH O'CONNELL v. JEROME VAINISI and TRACEY VAINISI, and S. WOODWORTH CHITTICK, PETER GOEDECKE, CHARLES HIGGINSON, BENJAMIN LACY, SUSAN KENT and DAVID McMORRIS as members of the Cohasset Zoning Board of Appeals.

Introduction

This case turns on the proper interpretation of the Cohasset zoning bylaw as applied to a six-foot high stone wall constructed by defendants Jerome and Tracy Vainisi along the boundary line of their property at 17 Sohier Street. The bylaw prohibits “structures” from being built within a setback area — a definition that includes a “fence” or “retaining wall,” Bylaw §2.1 — but creates an exception for a “perimeter wall, fence, or similar enclosure, not in excess of six feet in height,” Bylaw §§5.2.6, 5.2.8. The question thus presented is whether this wall fits within the “perimeter wall” exception or, as the plaintiffs argue, the bylaw has an exception within the exception: all perimeter walls are permissible except for “retaining walls.” If the plaintiffs’ interpretation is correct, a second question must then be faced: is this wall, which “retains” only in one section, properly viewed as a “retaining wall” and, by the plaintiffs’ argument, thus prohibited?

This is not the first time these questions, on this very wall, have come before the courts. The wall was built in association with the Vainisis’ house renovations which required, and received, a special permit. Based on their argument summarized above, the O’Connells (the Vainisis’ neighbors on the west) contended that the wall, in its section at the property line along the cobblestone patio next to the Vainisis’ garage, was a “retaining wall” outside the “perimeter wall” exception and, as a “structure” in the setback, was thus prohibited and beyond the scope of the work allowable under the special permit. Their request for a zoning enforcement order to have the wall removed, however, was denied. The Vainisis argued, and the building inspector agreed, that the wall was a “perimeter wall” within the §5.2.6 and §5.2.8 exception.

More was involved than just the wall, however. The Vainisis had put a fence on top of the wall, raising its overall height to somewhere between nine and eleven feet. They had also installed an outdoor shower on the cobblestone patio in the setback area, [Note 1] and were parking cars on the cobblestones in the setback, all in violation of zoning. The O’Connells appealed to the zoning board, which ordered the fence on top of the wall taken down, the wall itself reduced in height to no more than six feet, and the outdoor shower removed. It also prohibited the placing of any object on the wall or patio that could be seen from the O’Connells’ residence, and prohibited any parking in the setback area.

The O’Connells then filed a G.L. c. 40A, §17 appeal to the superior court. On cross- motions for summary judgment, the superior court (Connor, J.) held that the Vainisis did not have standing to challenge the wall, but if they did have standing, he would have ruled that it was a “retaining wall” and that “retaining walls” fell outside the “perimeter wall” setback exception. [Note 2] The Appeals Court vacated that judgment, holding that the impact of the wall on the O’Connells fell within the density/“crowding” concerns of the zoning act and Cohasset bylaw, and that the O’Connells’ presumptive standing as direct abutters had not been rebutted by the defendants. O’Connell v. Vainisi, 82 Mass. App. Ct. 688 , 692 (2012). It declined, however, to accept the trial court’s dicta that the wall not a “perimeter wall” and enter judgment accordingly, ruling instead:

Under the circumstances of this case, we disagree with [the trial court’s] suggested course of action. Pursuant to the plain language of the by-law, it is indisputable that “structure[s]” are generally prohibited in setback areas and that the retaining wall is a “[s]tructure” (something that would also be true of any “fence”). However, the operative question is whether — under the express exception to the general prohibition — the particular “structure” at issue here qualifies as a “perimeter wall, fence, or similar enclosure.” Relying in part on his understanding that perimeter walls are widely used as retaining walls throughout the town, the building inspector explained why he concluded that the Vainisis’ wall qualified for the exemption. The board did not reject or accept this analysis, but instead declined to resolve the issue. [Note 3] As a result, we do not know on this record how the board ultimately interpreted it.

82 Mass. App. Ct. at 693. Accordingly, the Appeals Court held:

In the first instance, it is up to the board to give meaning to the zoning bylaw it administers, with reviewing courts giving deference to the board’s interpretation so long as it is reasonable. For the board and courts to be able to perform their respective roles regarding how the by-law should be interpreted, the board must state its position. We therefore vacate the judgment dismissing the complaint, and a new judgment shall enter remanding the matter to the board for reconsideration of its decision and for a fuller explanation of its ruling.

Id. (internal citation omitted).

On remand, the board deliberated if the wall in question “was a perimeter wall, fence or similar structure” within the meaning of the zoning bylaw, determined that it was, and voted to “affirm[] the decision of the Building Inspector to modify the original Building Permit to allow a six-foot perimeter wall.” Zoning Board Decision on Remand (Jul. 16, 2013). The O’Connells then appealed that decision to this court pursuant to G.L. c. 40A, §17. The Vainisis and the board have renewed their challenge to the O’Connell’s standing and, in addition, defend the decision on the merits.

The case was tried before me, jury-waived. Based on the testimony and documents admitted into evidence at trial, my assessment of the credibility, weight, and appropriate inferences to be drawn from that evidence, and as more fully explained below, I find and rule that the board’s interpretation and application of the bylaw to this wall was reasonable, entitled to deference by this court, and proper, and thus DISMISS the O’Connells’ appeal in its entirety, WITH PREJUDICE. Because that ruling on the merits is dispositive, I need not and do not reach the standing issue.

Bylaw Interpretation

The interpretation of bylaws is a question of law for the court, to be determined by ordinary principles of statutory construction. Framingham Clinic Inc. v. Zoning Bd. of Appeals of Framingham, 382 Mass. 283 , 290 (1981). Where ambiguities exist in the language, a statute — or, as here, a bylaw — is 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, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to the accomplished, to the end that the purpose of its framers may be effectuated.” Moloney v. Boston Five Cents Savings Bank FSB, 422 Mass. 431 , 433 (1996) (internal citation and quotation omitted). The language of the provision at issue is to be construed “in association with other statutory language and the general statutory plan.” Sperounes v. Farese, 449 Mass. 800 , 804 (2007) (quoting Polaroid Corp. v. Comm’r of Revenue, 393 Mass. 490 , 497 (1984)). Where a literal reading of the terms of a bylaw would lead to an absurd or unreasonable result, that reading is rejected in favor of one that comports with the purpose of those terms. Springfield Preservation Trust Inc. v. Springfield Library and Museums Ass’n Inc., 447 Mass. 408 , 423 (2006). See also Todino v. Town of Wellfleet, 448 Mass. 234 , 238 (2007) (even when a strict interpretation is required, the interpretation must be reasonable; the “focus remains on the intent of the Legislature”).

Importantly, because a local zoning board is deemed to have “special knowledge of the history and purpose of its town’s zoning bylaw,” “a judge must give ‘substantial deference’ to a board’s reasonable interpretation of its zoning bylaws and ordinances.” Wendy’s Old Fashioned Hamburgers of New York Inc. v. Bd. of Appeal of Billerica, 454 Mass. 374 , 381 (2009) (internal citation and quotation omitted). See also Mellendick v. Zoning Bd. of Appeals of Edgartown, 69 Mass. App. Ct. 852 , 857 (2007) (“the reasonable construction that a zoning board of appeals gives to the bylaws it is charged with implementing is entitled to deference”) (quoting Cameron v. DiVirgilio, 55 Mass. App. Ct. 24 , 29 (2002). Indeed, such was the instruction of the Appeals Court in its remand decision in this very case. O’Connell, 82 Mass. App. Ct. at 693 (“In the first instance, it is up to the board to give meaning to the zoning bylaw it administers, with reviewing courts giving deference to the board’s interpretation so long as it is reasonable”).

Facts

In a G.L. c. 40A, §17 proceeding, the court finds the facts de novo and then reviews the board’s decision in light of those facts. Wendy’s Old Fashioned Hamburgers, 454 Mass. at 381. That decision “cannot be disturbed unless it is based on a legally untenable ground or is based on an unreasonable, whimsical, capricious or arbitrary exercise of its judgment in applying land use

regulation to the facts as found by the judge.” Id. at 381-382 (internal citations and quotations omitted).

These are the facts as I find them after trial.

The O’Connells and Vainisis reside in abutting parcels at 25 and 17 Sohier Street in Cohasset, respectively. The O’Connell property is located to the west of the Vainisi property. Both lots are located in the “R-B” residential zoning district, which requires a minimum lot size of 30,000 square feet and a side yard setback of 20 feet. Both lots are nonconforming with respect to lot size and setbacks, but the houses on each enjoy status as protected preexisting nonconforming structures. [Note 4]

The Vainisis purchased their property in August 2004. In 2005, they applied for, and received, a special permit for renovation work. [Note 5] During the renovation, it was discovered that the house was structurally unsound and required work beyond the scope of the special permit. With the approval of the town’s building inspector, that additional work was done. The Vainisis also constructed the stone wall at issue in this case, which runs along the western boundary of their lot, i.e. the boundary with the O’Connell property, and a chain-link fence around the rest of their parcel. The height of the stone wall varies with the slope of the land, with the highest portion just under six feet in height. It cannot be seen from the O’Connells’ house because of the intervening trees, all of which are on the O’Connell property but which they have no plans to remove. The Vainisis built the wall and fence out of concern for the safety of their small children, feeling it was best to enclose the perimeter of their yard so that no one could get through. They were also installing a swimming pool which required a perimeter enclosure.

The Vainisi house is built on a slope that drops downward to their back yard. To make the stone wall both a perimeter wall and level with the house required a limited amount of fill alongside the edge of their property nearest their garage. The wall thus has both a “perimeter” and a “retaining” function in the section at issue. The Vainisis put cobblestones [Note 6] on top of the fill and then continued the cobblestones to the edge of their garage, creating a patio and, since it matched up with the cobblestones they were putting on their driveway, effectively creating an additional parking area. They installed an outdoor shower on the patio, presumably for swimmers to use before entering the house, and also a fence along the top of the wall in the patio section, raising the overall height in that section to between nine and eleven feet. The stone wall, the fence along its top, the cobblestone patio and the outdoor shower were all within the side yard setback.

Under the Cohasset zoning bylaw, “structures” may not be built in a setback area. Bylaw §5.2.6. Bylaw §2.1 defines “structure” as “[a] combination of materials combined at a fixed location to give support or shelter,” with “fence[s]” and “retaining wall[s]” expressly included within that definition. Bylaw §§5.2.6 and 5.2.8, however, contain an express exception from that prohibition for “perimeter wall[s], fence[s], or similar enclosure[s], not in excess of six feet in height” which, although within the definition of “structures,” are allowed to be built and maintained in the setbacks. [Note 7]

The O’Connell house abuts the side yard of the Vainisi residence. Contending that the stone wall, the fence on top of the wall, the cobblestone patio and the outdoor shower were each structures prohibited in the side yard setback, the O’Connells requested the building inspector to take zoning enforcement action to have them removed. [Note 8] The building inspector did not formally respond to that request at that time, [Note 9] and the O’Connells appealed to the zoning board. The board ordered the outdoor shower and the fence on top of the stone wall removed, and the cobblestone patio blocked so that it could not be used for parking. It allowed both the stone wall and the cobblestone patio to remain (so long as the stone wall was six feet or less in height), [Note 10] but prohibited the Vainisis from placing anything on top of the wall or on the patio that could be visible from the O’Connells’ property. It did not expressly rule, however, that the stone wall fell within the “perimeter wall” exception.

The O’Connells then filed a G.L. c. 40A, §17 appeal from the board’s decision to the Norfolk superior court. As previously noted, on cross-motions for summary judgment, the superior court dismissed the appeal for lack of standing but noted that, had standing been found, judgment would have entered that (1) the stone wall was a “retaining wall,” and (2) the bylaw required its removal even though it was along the property’s perimeter. That judgment was appealed to the Appeals Court, which vacated it. The Appeals Court held that the O’Connells’ presumption of standing had not been rebutted, and declined to accept the Superior Court’s comments on the merits. Instead, noting that “the operative question is whether — under the express exception to the general prohibition — the particular ‘structure’ at issue here qualifies as a ‘perimeter wall, fence, or similar enclosure’,” and that, “[i]n the first instance, it is up to the board to give meaning to the zoning by-law it administers, with reviewing courts giving deference to the board’s interpretation so long as it is reasonable,” it remanded the matter to the board “for reconsideration of its decision and for a fuller explanation of its ruling.” [Note 11] O’Connell, 82 Mass. App. Ct. at 692-693. [Note 12]

The board duly heard the matter on remand and, after public hearing, ruled that “the six- foot wall is a perimeter wall and was a legal structure according to the bylaws of 2008-2009.” Board Decision (Jul. 16, 2013). The O’Connells then filed this G.L. c. 40A, §17 appeal of that decision to this court. The defendants have renewed their standing challenge, and also defend the decision on its merits.

Analysis

I need not, and do not, address the O’Connells’ standing to bring this case because, on the merits, their challenge fails. [Note 13]

On remand, as the Appeals Court directed, the board specifically addressed whether the wall in question was a “perimeter wall, fence or similar enclosure” within the meaning of the bylaw exception. The board so found. Its interpretation of the bylaw was a reasonable one. And I agree that its interpretation and application were correct.

The wall is six feet or less in height along its entire length. It runs along the western perimeter of the Vainisis’ property. And it is part of an overall enclosure of the perimeter of the Vainisi property.

That it also, in part, has a “retaining” function is immaterial. The bylaw language (the starting point for analysis) does not have an “either/or” distinction. All fences and walls are “structures” as defined in the bylaw, Bylaw, §2.1, and the “perimeter wall” exception, read in accordance with its plain language, covers any type of wall less than six feet in height along the perimeter of a property. Bylaw §§ 5.2.6; 5.2.8. See Deutsche Bank National Trust Co. v. Fitchburg Capital LLC, 471 Mass. 248 , 253 (2015) (“When the meaning of a statute is at issue, we begin with the canon of statutory construction that the primary source of insight into the intent of the Legislature is the language of the statute. The language is interpreted in accordance with its plain meaning, and if the language is clear and unambiguous, it is conclusive as to the intent of the Legislature”) (internal citations and quotations omitted).

“[W]ords and phrases [are] construed according to the common and approved usage of the language,” and dictionaries are the usual reference for that. Id. at 253-254. The dictionary definition of “perimeter” is “the outermost part or boundary of an area or object.” The Concise Oxford Dictionary (10th Ed.) at 1061 (1999). This wall is certainly in that location, and thus within the exception. The bylaw’s express inclusion of “retaining walls” in the definition of “structure” was not meant to create an “either/or” when it comes to perimeters, but simply to remove any possible ambiguity that retaining walls are, in fact, “structures”, i.e. any argument that retaining walls are simply landscape features, outside the definition of “structure” if they are not intended for building support or shelter.

Interpreting the bylaw this way is certainly reasonable. It was the board’s interpretation, to which deference is owed, see O’Connell, 82 Mass. App. Ct. at 693, and fully consistent with the evidence at trial. As the Vainisis’ surveyor testified, perimeter walls often have the dual function of retaining earth on their other side, and the bylaw’s permission of perimeter walls only six feet in height or less is a careful legislative balancing of impacts. Moreover, as the Cohasset building inspector testified, perimeter walls that also retain earth on their other side are a common feature throughout the town. Had the bylaw intended to exclude “retaining walls” from otherwise permissible “perimeter walls”, it would surely have done so plainly, in the same bylaw provision (Bylaw §§ 5.2.6; 5.2.8).

Conclusion

For the foregoing reasons, the board’s interpretation and application of the bylaw, ruling that the six-foot high stone wall was a perimeter wall within the bylaw’s setback exception despite also having a “retention” function, was reasonable, correct and must be upheld. The O’Connells’ complaint is thus DISMISSED in its entirety, WITH PREJUDICE.

Judgment shall enter accordingly.

SO ORDERED.