MISC 17-000115

March 8, 2018

Hampden, ss.



This case involves a mashup of a Chekhovian family struggle and The Wizard of Oz.

First the Ozian details. Nineteen largely undeveloped acres lie at 19 Peak Road in Wilbraham, Massachusetts. Five siblings, all members of the Charkoudian family, own the property, which lies in the shadow of Sunrise Peak. Once upon a time, there was an 800-square-foot seasonal cottage on the property. Someone built that cottage, lawfully, in 1939. That date's important, not because it marks the release of the movie The Wizard of Oz, but rather because it comes before the Town of Wilbraham's adoption of its first Zoning By-law. That bylaw placed 19 Peak Road in a residential district. For some time the bylaw has required property owners in 19 Peak Road's district to have a minimum of 200 feet of frontage along a street before the town will allow construction of a residence on one's property. 19 Peak Road had (and still has) only 44 feet of frontage on Peak Road at the time the Town adopted the frontage requirement. That made the cottage, in the parlance of the bylaw, a lawful non-conforming building.

In June 2011, a twister (rare for these parts) struck Wilbraham and destroyed the cottage. The record is silent as to whether anyone found any witches beneath the rubble, or whether anyone saw a headstrong teenager clad in light-blue plaid carried to the heavens, with her little dog too. But it's undisputed that the cottage was a goner.

Now to Chekhov. In the wake of disaster, the Charkoudians explored what they could do with 19 Peak Road. There's dispute over the timing and the sincerity of those explorations, but two facts are clear: the five Charkoudians didn't agree on an ultimate plan, and to this day, nothing has replaced the cottage.

There are currently two lawsuits involving the Charkoudians in this Court. The older suit, filed in March 2016, is an action to partition 19 Peak Road among the Charkoudians. The right of a person "owning a present undivided legal estate in land, not subject to redemption," to obtain partition of that land, G.L. c. 241, § 1, is among the oldest of statutory rights, one dating to colonial times. See St. 1693, c. 8. The current partition statutes, collected in c. 241 of the General Laws, still contain a presumption that partition should result in a physical division of land. See Delta Materials Corp. v. Bagdon, 33 Mass. App. Ct. 333 , 337 (1992). But if a jointly owned parcel can't be physically divided among its owners in a way that makes sense, the usual recourse is a sale of the property. Sometimes that means one current owner buying out the others, and other times that means a sale to a brand-new owner and a subsequent division of the sale's proceeds among the former owners. See c. 241, § 14.

The public record in the Charkoudians' partition case suggests that the siblings have different visions of the future of 19 Peak Road. Those differences don't affect this Decision, one in the second of the two Charkoudian cases before this Court, but they put this second case in context. One of the Charkoudian siblings is Leon Charkoudian. He owns property that abuts 19 Peak Road. In March 2017, Leon claimed that he and his sisters Arax and Kenar want to "maintain the natural surroundings of [19 Peak Road] as protected conservation land." Protecting conservation lands is a noble aim, but keeping 19 Peak Road fallow might have particular benefits for Leon's abutting property. Moreover, if 19 Peak Road were to be designated as conservation land, its appraised value – one of the determinative factors in most partition cases – would drop, making it easier for one or more of the Charkoudian siblings to buy the other siblings' interests and control the property's fate. The record in this case offers proof of the potential differences in value: in March 2017, a Court-appointed commissioner overseeing the partition case claimed that if 19 Peak Road were "buildable," it would be worth $250,000, but if the property had to be kept vacant, it might fetch only $85,000.

So the "buildability" of 19 Peak Road is an important issue in the Charkoudians' partition case. And perhaps with the foregoing calculus in mind, just two months after the start of the partition case, Leon asked the Building Commissioner of the Town of Wilbraham if he would ever grant a building permit for construction of a year-round residence at 19 Peak Road. The Commissioner replied that he wouldn't issue a building permit without an appropriate finding by the Town's zoning board of appeals (the "ZBA") under c.40A, § 6.

The record is silent as to what Leon did with the information he gleaned from the Building Commissioner, but in August 2016, an attorney for Leon's brother, John Charkoudian, wrote the Commissioner and posed a slightly different question: would he ever grant a building permit under § 3.3.3 of the Town's Zoning By-law for a modest single-family home at 19 Peak Road? The Commissioner replied that 19 Peak Road was a "legal, pre-existing, non-conforming lot," and that a new single-family residential dwelling there "would be allowed if it is no more non-conforming and complies with other requirements of the Zoning By Laws, where applicable."

Leon disagreed with the Building Commissioner's new determination. Leon appealed it to the ZBA. The ZBA concluded in February 2017 that the Commissioner lawfully could issue a building permit for construction of a single-family residence at 19 Peak Road if the owners complied with a particular part of § 3.3.3 of the Zoning By-Law, namely, § 3.3.3A.

The ZBA's answer was more precise than the Building Commissioner's, but it still was not to Leon's liking. Leon thus filed suit against the ZBA and John, resulting in the second of the two pending Charkoudian cases in this Court. Leon's complaint in this case has two counts. Count I contains an appeal, pursuant to c.40A, § 17, of the ZBA's decision. Count II is a request under c.240, § 14A, for a declaration that 19 Peak Road is "unbuildable."

This Court dismissed Count II in July 2017, ruling that Leon had failed to plead facts sufficient to establish this Court's jurisdiction over his c. 240, § 14A claim. The case is now before the Court on the parties' cross-motions for summary judgment on Count I of Leon's complaint.

Leon makes two requests on summary judgment. He first asks the Court to annul the ZBA's decision. Leon contends that the ZBA misinterpreted § 3.3.3A of the Town's Zoning By-law when it declared that it allowed the Building Commissioner to issue a building permit for construction of a new residence on 19 Peak Road. Section 3.3.3A is part of § 3.3.3 of the By- Law, which is titled "Non-Conforming Single and Two Family Residential Structures." Section 3.3.3 contains three somewhat lengthy sentences. (Section 3.3.3 uses the terms "non-conforming" (hyphenated) and "nonconforming" (unhyphenated) interchangeably, and when this Decision quotes § 3.3.3, it does so verbatim.)

* First Sentence: "A non-conforming single-family . . . residential structure in a Residential Zoning District may be altered, changed, added to, extended, or reconstructed (collectively ‘alterations') without a proceeding before the Board of Appeals provided the Building Commissioner determines that the proposed alteration (1) does not constitute a change of use and (2) does not make the residential structure more non-conforming."

* Second Sentence: "A proposed alteration to such structure will not be considered more nonconforming and will be allowed by building permit from the Building Commissioner under the following circumstances. . . ." The Second Sentence then lists four circumstances, labelled (A) through (D). The Court interprets the Second Sentence as cabining the Commissioner's power, as described in the First Sentence, to decide that an alteration is "not . . . more non-conforming" that the non-conforming structure that's the subject of an "alteration," but only in the four circumstances labelled (A) through (D).

* Third Sentence: "In the event the Building Commissioner determines that the nonconforming nature of such structure would be increased by the proposed change, extension, alteration or reconstruction, the Board of Appeals may authorize by special permit such change, extension, alteration or reconstruction provided the Board finds that the proposed modification will not be substantially more detrimental than the existing nonconforming structure to the neighborhood."

Taken together, these sentences provide that, with respect to lawful non-conforming residential structures, (1) a building permit should issue, virtually automatically, to allow those alterations described in parts (A)-(D) of the Second Sentence; (2) a building permit may issue, under the First Sentence, allowing other alterations if the Building Commissioner finds no increase in the structure's non-conforming nature; and (3) as provided in the Third Sentence, a special permit from the ZBA may allow those alterations that don't qualifying for treatment under (1) or (2), provided that the ZBA "finds that the proposed modification will not be substantially more detrimental" to the neighborhood than the existing non-conforming structure.

The ZBA held that 19 Peak Road could qualify for an "automatic" building permit under the Second Sentence of § 3.3.3, specifically § 3.3.3.A. A project qualifies for a building permit under § 3.3.3A "[w]here the existing structure is located on a lot with insufficient frontage and/or lot area, but the existing structure complies with all current setback, building coverage and building height requirements, and the proposed alteration will also comply with all current setback, building coverage and building height requirements." Reading the First and Second Sentences together, in order for a building permit to issue under § 3.3.3A, a project must pass five tests:

* There must be a "non-conforming single-family structure," as § 3.3 of the By-Laws uses that term. Leon, John and the ZBA agree that the now-destroyed cottage was a non-conforming single-family structure.

* There must be a proposed "alteration." It's undisputed that John proposed in August 2016 plans that one could characterize as calling for both "reconstruction" and "alteration," since (a) prior to 2011, the cottage had occupied 19 Peak Road; (b) a tornado destroyed the cottage in 2011; and (c) John intended to reconstruct the cottage and expand it. Section 3.3.3.A's definition of "alteration" includes everything John proposed.

* The Commissioner must conclude that the proposed "alteration" does not constitute a change in use. The parties agree that John's August 2016 proposal would have resulted in a single-family residence, the same use that the cottage served.

* Per § 3.3.3A, there must be an "existing structure . . . located on a lot with insufficient frontage and/or lot area" that complies "with all current setback, building coverage and building height requirements. . . ."

* Also per § 3.3.3.A, the proposed alteration must comply "with all current setback, building coverage and building height requirements."

The parties agree that that John's August 2016 proposal would have complied with all current setback, building coverage and building height requirements. They also agree that 19 Peak Road is a "lot with insufficient frontage." But Leon contends that there was no "existing structure" within the meaning of § 3.3.3.A on 19 Peak Road as of August 2016: the last structure on the property, the cottage, was destroyed in June 2011 and hence was no longer "existing" as of August 2016.

The By-Law doesn't define "existing structure." When a by-law doesn't define a term, one must give that term its plain meaning when read in the context of the entire by-law. See Framingham Clinic, Inc. v. Zoning Bd. of Appeals of Framingham, 382 Mass. 283 , 290 (1981); Powers v. Freetown-Lakeville Reg. School Dist. Comm., 391 Mass. 656 , 669 (1984); Shirley Wayside Ltd. P'ship v. Board of Appeals of Shirley, 461 Mass. 469 , 477 (2012). "Existing" means "1. To have being or actuality; to be. . . ." The American Heritage Dictionary of the English Language, 460 (1976). Leon observes that since June 2011, there has been no structure on 19 Peak Road. He thus argues that it's wrong as a matter of plain English to call the former cottage an "existing structure."

John and the ZBA argue that "existing structure" can't be confined to its dictionary meaning, but instead must be read in the context of the By-law as a whole. Their contextual arguments don't carry the day. They first point to § 1.3 of the By-Law, which provides a defined term, "Non-Conforming Building." Section 1.3 defines Non-Conforming Building as "[a] building legally existing at the effective date hereof, but which does not conform to all of the applicable requirements of this By-law regarding area and width of lot, frontage of lot, percentage of building coverage required yards and parking facilities and building height limit." John and the ZBA posit from this definition that any determination of a non-conforming building's "existence" for purposes of the Zoning By-law occurs only once, at the time of the adoption of the By-Law.

The trouble with this argument is that neither § 3.3.3 nor the Second Sentence uses the term "Non-Conforming Building": the operative term in § 3.3.3A is "existing structure." John and the ZBA offer no evidence that the By-law intends "existing structure" to mean the same thing as "Non-Conforming Building." And there's no other By-law provision that states that § 3.3.3A tests whether a "structure" is "existing" only at the moment a structure first becomes non-conforming under the By-law.

John and ZBA next point to § 3.3 of the By-law, which provides in part that "[a]ny structure, building or use of a structure, building or land, lawfully existing at the time of the adoption of this Zoning By-Law or any subsequent amendment thereto which does not conform to the regulations thereof may be continued. . . ." They argue that one should interpret the phrase "existing structure" in § 3.3.3A as referring back to the text quoted in the previous sentence of this Decision. But John and the ZBA's § 3.3 argument collides with their § 1.3 argument. The By-law has a term that refers to a "structure lawfully existing at the time of the adoption of the By-law which does not conform to the By-law": it's § 1.3's defined term, "Non-Conforming Building." Sections 3.3.2, 3.3.3, and 3.3.4 of the By-law further undercut John and the ZBA's § 3.3 argument: instead of using "existing structure" to mean "non-conforming building," those subsections employ the phrase "non-conforming structure," or similar terms. This Court thus does not read "existing structure" in § 3.3.3A as meaning the same thing as "non-conforming building" or "non-conforming structure."

John and the ZBA then direct the Court's attention to the First Sentence, which expressly contemplates the "reconstruction" of non-conforming structures. John and ZBA argue that "reconstruction" means the "[a]ct of constructing again. It presupposes the nonexistence of the thing to be reconstructed as an entity; that the thing before existing has lost its entity." Black's Law Dictionary (5th ed. 1979). John and ZBA contend that if Leon's interpretation of "existing structure" were correct, one couldn't "reconstruct" anything in Wilbraham, which would make § 3.3.3's inclusion of "reconstruction," in the list of actions that can receive an "alteration" building permit, superfluous. Shirley Wayside, 461 Mass. at 477, discourages courts from interpreting bylaws in a manner that would make any part of a zoning bylaw superfluous.

John and the ZBA's "reconstruction" argument overlooks substantial case law interpreting that term. Section 3.3.3 stems from c. 40A, § 6, a statute that governs "reconstructions" of legally nonconforming residential structures. "Reconstructions" under § 6 include demolishing existing structures and replacing them with something else. See, for example, Bjorklund v. Zoning Bd. of Appeals of Norwell, 450 Mass. 357 , 359 (2008); Dial Away Co., Inc. v. Zoning Bd. of Appeals of Auburn, 41 Mass. App. Ct. 165 , 170 (1996). So one easily can reconcile § 3.3.3's use of the term "reconstruction" with § 3.3.3A's use of the term "existing structure": in fact, § 3.3.3A contemplates the very situation addressed in Bjorklund, where the applicant proposed to "reconstruct" an "existing structure" by tearing down the "existing structure" and replacing it with a larger one.

John and ZBA's "reconstruction" argument also ignores § 3.3.4 of the By-law. It provides (emphasis added):

A lawfully non-conforming structure, building or use damaged or destroyed by fire, explosion, natural disaster or other accidental cause may be reconstructed or rebuilt to its former size on its former location, and the former use may be resumed, provided that such reconstruction or repair is in conformance with current State Building Code specifications and is substantially completed within one (1) year of the occurrence of said damage. This one year term may be extended for cause by the Board of Appeals.

This provision expressly addresses "non-existing" structures. It allows their "reconstruction," as of right, within one year of damage. There's no reason why a structure rebuilt pursuant to § 3.3.4 wouldn't thereafter enjoy the "reconstruction" benefits of § 3.3.3A.

The Court thus holds that the term "existing structure" as it appears in § 3.3.3A of the By-law refers to a structure that actually exists at the time of an application for a building permit under § 3.3.3.A. The ZBA's February 2017 decision thus was incorrect as a matter of law, and should be annulled. The Court thus GRANTS Leon's motion for summary judgment with respect to his first request, and DENIES John and the ZBA's cross-motions for summary judgment on the same issue.

Leon's second request on summary judgment is that the Court declare 19 Peak Road to be "unbuildable as a matter of law. . . ." Leon's long-dismissed Count II sought that same declaration. The Court's jurisdiction under Count I, which Leon brought under c.40A, § 17, is limited to a review of the ZBA's February 2017 decision. That decision doesn't contain a broad declaration as to the "buildability" of 19 Peak Road: it held only that John could build something under § 3.3.3A. While c.40A, § 17 allows a court to "make such other decree [besides annulling the board's decision] as justice and equity may require," there are several reasons why this Court shouldn't further address the "buildability" of 19 Peak Road at this time.

First, the ZBA's decision suggests that it viewed § 3.3.3 of the By-law as complementing, and not superseding, § 3.3.4 of the By-law, the provision that pertains most specifically to reconstructions of structures that have suffered catastrophes. The ZBA's decision observes that, as of the time of the decision, the Charkoudians no longer could invoke § 3.3.4 as of right because they didn't rebuild their cottage within one year of the June 2011 tornado. The ZBA made no ruling, however, as to whether the Charkoudians would be able to invoke the last sentence of § 3.3.4, which allows the ZBA to extend § 3.3.4's one-year reconstruction provision "for cause." The By-Law also does not explain what constitutes "cause" for extending § 3.3.4's one-year term, and it doesn't put a time limit on extension requests. None of the Charkoudians has applied to proceed under the last sentence of § 3.3.4; if that happens, the ZBA should have the first shot at interpreting and applying that part of the By-law.

Second, the ZBA's decision addressed only whether John's proposed project qualified for a building permit under § 3.3.3A. The ZBA did not consider whether (a) a building permit could issue under the First Sentence of § 3.3.3 for John's project; (b) a special permit could issue under the Third Sentence of § 3.3.3 for John's project; or (c) either a building permit or a special permit could issue for some other building project at 19 Peak Road. The ZBA also didn't deal with § 3.3.2, which governs non-conforming structures of all types (not just residences). These provisions contain language that doesn't appear in §§ 3.3.3.A -- most notably, they don't tie relief to an "existing structure." The ZBA's decision also doesn't rule on whether the Charkoudians would be entitled to a variance for some sort of project.

So there are several issues pertaining to the "buildability" of 19 Peak Road that the ZBA hasn't considered. Leon claims that enough is enough: that under c. 40A case law, the cottage has been abandoned and can't be rebuilt. See Dial Away, 41 Mass. App. Ct. at 171-72; Chiaraluce v. Zoning Bd. of Appeals of Wareham, 89 Mass. App. Ct. 290 , 294-95 (2016). Leon's correct that the owner of an abandoned non-conforming structure can't count on relief under §§ 3.3.2 and 3.3.3, and maybe can't count on § 3.3.4 relief either. But like many of the other issues involving the "buildability" of 19 Peak Road, the ZBA has yet to consider the alleged abandonment of 19 Peak Road. It should have that opportunity prior to this Court weighing in. The Court thus DENIES the second part of Leon's motion for summary judgment.

Judgment shall enter accordingly.