Home DON PERRY v. HULL ZONING BOARD OF APPEALS; PETER LOMBARDO, as he is the Building Commissioner of the Town of Hull; CHARLES WILLIAMS, and ANNE VEILLEUX.

MISC 18-000347

March 12, 2019

Plymouth, ss.



The Massachusetts statute that provides for judicial review of the decisions of local zoning boards of appeals, G.L. c. 40A, § 17, directs that the court "shall hear all evidence pertinent to the authority of the board . . . and determine the facts, and, upon the facts as so determined, annul such decision if found to exceed the authority of such board . . . or make such other decree as justice and equity may require." Section 17's fact-finding requirements are an important check on the power of local boards: they provide a party who disagrees with a board decision the confidence that he or she will obtain an independent determination of the facts regardless of whether the board fully heard them (see Parrish v. Board of Appeal of Sharon, 351 Mass. 561 , 567 (1967) (decided under prior version of the current Zoning Act)), and with no weight placed on the board's findings or even its decision (see Josephs v. Board of Appeals of Brookline, 362 Mass. 290 , 295 (1972) (also decided under prior version of Zoning Act); Furlong v. Zoning Bd. of Appeals of Salem, 90 Mass. App. Ct. 737 , 739 (2016)). This case illustrates why independent fact-finding has vitality, for the municipal board in this case appears to have accepted a surveyor's plan as proving something it didn't. This Court will correct the board's misimpression and send the case back to the board for a second look.

Plaintiff Don Perry owns 9B Maple Lane in Hull, Massachusetts. In early 2018, his neighbors at 12 Maple Lane, defendants Charles Williams and Anne Veilleux, applied for and received a building permit to construct a single-family dwelling on their property. Pursuant to G.L. c. 40A, §§ 8 and 15, Mr. Perry appealed the permit to the defendant Hull Zoning Board of Appeals. The Board upheld the permit. In July 2018, Perry filed an action in this Court pursuant to id. at § 17, seeking judicial review of the Board's decision. His original complaint named only the Board as a defendant; in August 2018, Perry amended his complaint to add Williams and Veilleux as defendants.

Mr. Perry argues that the Williams/Veilleux project violates Hull's Zoning By-law in three respects. The facts that are material to each of Perry's contentions are undisputed, and the parties have cross-moved for summary judgment as to all three issues. Two of Perry's arguments lack merit, but the third prompts a remand of this case to the Board.

Mr. Perry first asserts that the site of the proposed Williams/Veilleux house is too small under the By-law for anyone to build a house there. The undisputed facts pertaining to this issue are these: 12 Maple Lane is in a Single-Family Residence District B (also known as a "SF-B District") under the By-Law. According to the By-law, in the SF-B District, a "lot" must have "area" of at least 12,000 square feet in order for construction to occur on that lot. Section 22-1 of the By-Law defines "Lot" as "[a] contiguous parcel of land in identical ownership throughout, bounded by other lots or by streets, and used or set aside and available for use as the site of one principal building with one or more accessory buildings. For the purpose of this bylaw, a lot may or may not coincide with a lot on record."

Two parcels comprise the property known as 12 Maple Lane. The parcels are "Lot 2," as shown on a recorded 1911 plan, and the "northerly portion of Lot 3" of the same plan, a piece described in a 1941 deed (hereafter, "Lot 3A"). The 1911 plan depicts what were then Lots 2 and 3 as two abutting, roughly rectangular parcels, each having its longest axis running north/south, parallel to the boundary between the two lots. The 1911 plan also shows a ten-foot- wide right of way ("ROW 3") running north/south on the boundary between Lot 2 and Lot 3. The boundary between Lot 2 and 3 forms the centerline of ROW 3.

In 1941, Lot 3A was cleaved from the rest of Lot 3, leaving a smaller trapezoidal parcel, Lot 3B, abutting the south side of Lot 3A and the southeast side of Lot 2. Mr. Perry now owns Lot 3B, which is on the northern side of Perry's 9B Maple Lane (a lot that also abuts a tiny part of the south side of Lot 2). ROW 3 survived the 1941 splitting of Lots 3A and 3B. The northern end of ROW 3 lay on the boundary between Lots 2 and 3A, and the southern end of ROW 3 lay on the boundary between Lots 2 and 3B.

All three lots – Lots 2, 3A and 3B -- are bounded by other lots. Together, Lots 2 and 3A exceed 12,000 sq. ft. in area, but both individual Lots are smaller than 12,000 sq. ft. Lot 2 formerly was the site of a single-family residence. The only structures currently on Lots 2 and 3A are the foundation of the former residence and a 7'x7' shed.

As this Court observed in Giannelli Management & Devt. Corp. v. City of Malden, 26 LCR 349 (2018), the Zoning Act "gives municipalities substantial leeway in defining what constitutes a 'lot' for purposes of their zoning laws. . . ." See also Heald v. Zoning Bd. of Appeals of Greenfield, 7 Mass. App. Ct. 286 , 289-90 (1979) (suggesting that municipalities may determine how to define "lots" by reference to title sources or plans; courts will follow that definition before assuming two neighboring lots are one for zoning purposes). Unlike the zoning ordinance in Giannelli, § 22-1 of Hull's Zoning By-law defines a "lot" by four specific characteristics. To be a "lot," a property must be (a) a "contiguous" parcel of land, (b) in "identical ownership throughout," (c) "bounded by other lots or by streets," and (d) "used or set aside and available for use as the site of one principal building with one or more accessory buildings." Section 22-1 also is clear that "a lot may or may not coincide with a lot on record."

It's undisputed that 12 Maple Lane meets condition (b): Lots 2 and 3A have the same owners, Mr. Williams and Ms. Veilleux. It's also undisputed that 12 Maple Lane meets condition (c), as other lots bound Lots 2 and 3A. And it's undisputed that Lot 2 used to have a house on it, and that both lots are now "available" for residential use. That means that 12 Maple Lane meets condition (d).

The dispute among the parties centers over condition (a), whether Lot 2 and Lot 3A are "contiguous." Mr. Perry claims they aren't. He claims that ROW 3 separates the lots and makes them non-contiguous. The By-law doesn't define "contiguous." Section 22-1 instructs that if the By-law doesn't define a term, but the Massachusetts State Building Code does, the term has "the meaning[] given in that code." That direction's no help here: like the By-law, the Code doesn't define "contiguous." Section 22-1 then says: "Words and phrases not defined in either this article or the Code shall have the meanings as defined in the American Heritage Dictionary of the English Language." That dictionary provides two definitions of the adjective "contiguous" that could modify a noun like "land": "1. Sharing an edge or boundary; touching. 2. Nearby; neighboring; adjacent." Given that the By-law is trying to regulate whether a "lot" has suitable "area" for siting a building, see Zoning By-law, Table 50, this Court rules that the first of the two American Heritage Dictionary definitions is the correct one under § 22-1. In other words, in order for multiple parcels to form a single "lot" under § 22-1, condition (a) requires the parcels to share an edge or boundary. They can't be merely "nearby" or "neighboring."

Does ROW 3 separate Lots 2 and 3A, making them not "share an edge or boundary"? No. The 1911 Plan depicts ROW 3 only as an easement, the centerline of which is the legal boundary between Lots 2 and 3 (now, Lots 2 and Lots 3A and 3B). The 1911 Plan doesn't show ROW 3 as its own lot – a lot that would have separated Lots 2 and 3 before 1941, or Lot 2 from Lots 3A and 3B thereafter – nor has Mr. Perry provided any evidence that someone subsequently established ROW 3 as a separate lot. (In fact, as will be seen later in this Order, something of the opposite happened.) While Perry points to cases in which private ways have separated lots, making them immune from the zoning doctrine of "merger" (see, for example, Dowling v. Board of Health of Chilmark, 28 Mass. App. Ct. 547 (1990); Cotty v. Parks, 7 LCR 185 (1999) (Green, J.)), none of those cases holds that if a municipality defines "lots" for purposes of zoning, that definition must account for private ways. To the contrary: Hull is free to define "lots" as it has done in § 22-1, without regard for what the 1911 plan shows merely as an easement. Thus, having met all four of § 22-1's "lot" conditions, Lots 2 and 3A indeed form a single "lot," which this Order will call 12 Maple Lane. That lot has more than 12,000 square feet of area, and hence it is large enough under the By-law to host a single-family residence. The Court thus GRANTS Defendants summary judgment on Perry's "single lot" issue, and DENIES Perry's motion for summary judgment on the same issue.

The Court's disposition of the "lot" issue also resolves another of Mr. Perry's arguments, whether the Williams/Veilleux project will violate the By-law's setback requirements. Here are the undisputed facts as to that issue: Williams and Veilleux propose to build a two-story house and deck on the Lot 3A portion of 12 Maple Lane. The front of the house will face south. Perry conceded at oral argument that the house and deck meet Hull's minimum front- and rear-yard setback requirements. His disagreement centers on side-yards. In the SF-B district, one needs ten linear feet of side-yard. While Perry concedes that the east side of the proposed house will be more than ten feet from Lot 3A's eastern boundary, the west side of the proposed house will be within ten feet of both ROW 3 and the boundary between Lots 2 and 3A. Perry argues that the house must be at least ten feet from both.

Mr. Perry's argument fails because of how the By-law defines "yard." Section 22-1 defines "yard" as "[t]he open space at the front, sides and rear of a building between the exterior walls of the building and the boundaries of the lot upon which it stands." (Emphasis added.) As this Order earlier concluded, 12 Maple Lane is a single "lot" under the By-Law. The "yard" on the west side of the proposed house thus does not end at ROW 3 or the boundary between Lots 2 and 3A. Instead, the west "yard" of the proposed house extends to the western boundary of Lot 2. The house will be approximately 100 feet from that boundary. The Court thus GRANTS summary judgment to Defendants on Perry's setback challenge, and DENIES Perry's motion for summary judgment on the same issue.

Now to the issue on which Mr. Perry prevails, at least for the moment: whether 12 Maple Lane lacks sufficient "frontage" under the By-law to allow construction of a single-family house there. Here are the undisputed facts as to that issue. Section 22-1 of the By-Law defines "lot frontage" as "[t]hat part of a lot (a lot line) abutting on a street or way; except that the ends of incomplete streets, or streets without a turning circle, shall not be considered frontage, and yard shall be provided as indicated under Yard in this section." (Emphasis in original.) Lots in the SF-B District require a minimum of 75 linear feet of lot frontage. When they applied for a building permit, Mr. Williams and Ms. Veilleux presented to the building commissioner what the Board later called a "certified site plan" (the "Site Plan"). The Site Plan represents that 12 Maple Lane has 116.49 feet of frontage. A little over 69 feet of that frontage lies along the entire southern boundary of Lot 3A, which abuts a twelve-foot right of way leading from Maple Lane ("ROW 2"). The remaining 47 feet of frontage lies along the portion of ROW 3 that sits atop the boundary between Lot 2 and Lot 3B. (The western end of ROW 2 intersects with ROW 3.) The building commissioner accepted the Site Plan's calculations, and when Perry appealed Williams/Veilleux's building permit to the Board, the Board accepted those calculations too.

This Order has used the labels "ROW 2" and "ROW 3" deliberately. That's because this Court encountered 12 Maple Lane, Mr. Perry's Lot 9B, Maple Lane, ROW 2, and ROW 3 in a previous case involving Perry and his then-neighbors at 12 Maple Lane, Perry v. Nemira, 23 LCR 49 (2015) (Sands, J.), aff'd in part and rev'd in part, 91 Mass. App. Ct. 12 (2017). See also Revised Judgment Following Rescript, Perry v. Nemira, 11 MISC 457157 (July 25, 2017) (Vhay, J.) (the "Revised Judgment"). The "ROW 2" and "ROW 3" designations arise from Nemira.

At oral argument on their cross-motions for summary judgment in this case, the parties agreed that the Revised Judgment has two consequences. The first pertains to ROW 2: as result of the Revised Judgment, (a) Williams and Veilleux have the right to use ROW 2 as access to 12 Maple Lane; (b) the entire 69.12-foot southern boundary of Lot 3A abuts ROW 2; and thus (c) ROW 2 indeed provides 12 Maple Lane with a 69.12 feet of frontage. The Site Plan accords with those agreed facts. Not so for the second consequence of the Revised Judgment, a consequence that relates to ROW 3. The parties agree that as a result of the Revised Judgment, 12 Maple Lane's right to use the portion of ROW 3 that lies on Lot 3B, for access to 12 Maple Lane, has been extinguished. According to Perry, that leaves Williams and Veilleux 5.88 feet (75' minimum frontage – 69.12' ROW 2 frontage = 5.88') short of the frontage they need to build anything on 12 Maple Lane.

No one appears to have told the building commissioner or the Board that ROW 3 had been extinguished as it crosses Lot 3B. The Site Plan certainly doesn't point that out: it merely depicts the location of ROW 3 as it crosses Lots 2, 3A and 3B. Williams and Veilleux claim that the Site Plan's silence as to the extinguished portion of ROW 3 doesn't matter, for two reasons. They first remind the Court that ROW 3 is ten feet wide, and the centerline of ROW 3 is the boundary between their Lot 2 and Mr. Perry's Lot 3B. That means five feet of ROW 3's ten-foot width lies on Lot 2, and the other five feet lies (or used to lie) on Lot 3B. Williams and Veilleux further point out that the Revised Judgment extinguished only that portion of ROW 3 that ran across Lot 3B. They argue that the Revised Judgment didn't wipe out the five-foot-wide strip of ROW 3 that lies atop Lot 2, and thus they can continue to claim "frontage" along ROW 3.

Williams and Veilleux's first argument overlooks the By-law's definition of "lot frontage." That definition begins by calling lot frontage "[t]hat part of a lot (a lot line) abutting on a street or way. . . ." For purposes of Williams and Veilleux's first argument, the pertinent "lot" is 12 Maple Lane -- more specifically, the Lot 2 piece of 12 Maple Lane. Does Lot 2 "abut" the unextinguished portion of ROW 3 that lies on Lot 2? The By-law doesn't define "abut," and neither does the State Building Code. The By-law thus steers one back to the American Heritage Dictionary. That dictionary defines "abut" as "[t]o touch at one end or side of something; lie adjacent."

The unextinguished portion of ROW 3 near Lot 3B isn't "lying adjacent" to Lot 2: it's within Lot 2. The By-law's definition of "lot frontage" as requiring adjacency to a street or way that touches what qualifies as a "lot" under the By-law (what this Order will call the "Adjacency Requirement") serves the purposes of frontage requirements generally, "to ensure access to vehicular traffic and the availability of utilities and municipal services to the lots" in question. Arrigo v. Planning Board of Franklin, 12 Mass. App. Ct. 802 , 810 (1981) (emphasis added; construing Subdivision Control Law, G.L. c. 41, § 81M). Getting "to" a lot implies that one's outside of it. So the Court rejects Williams and Veilleux's first argument.

Their second argument goes like this: the Revised Judgment recognizes that ROW 2 abuts the entire 69.12-foot southern boundary of Lot 3B. It's also undisputed that ROW 2 ends at Lot 2, and is twelve feet wide. That means that the twelve-foot end of ROW 2 is "adjacent to" the side of Lot 2. (The end of ROW 2 is actually more than twelve-feet wide where it intersects Lot 2, as ROW 2 intersects at an angle. But that's a detail that makes no difference in this case.) Williams and Veilleux then do the math (69.12' + 12' = 81.12') and come up with frontage that exceeds the By-law's 75-foot minimum.

Mr. Perry claims that the By-law's definition of "lot frontage" prohibits Williams and Veilleux from counting the end of ROW 2 as frontage. Perry's correct that after describing the Adjacency Requirement, § 22-1 immediately limits its notion of acceptable "lot frontage." Section 22-1 provides that "the ends of incomplete streets, or streets without a turning circle, shall not be considered frontage. . . ." (Emphases added; hereafter, the "Incomplete Streets Exception.") Perry claims that ROW 2 is an "incomplete street" and a "street without a turning circle"; either way, the twelve-foot end of ROW 2 doesn't count as frontage, according to Perry.

Williams and Veilleux counter that the Incomplete Streets Exception doesn't apply here. That's because the first half of the "lot frontage" definition, the part that contains the Adjacency Requirement, talks about an "abutting . . . street or way. . . ." (Emphasis added.) The second part of the "lot frontage" definition, the part that sets forth the Incomplete Streets Exception, speaks only of "streets," and says nothing about "ways." Williams and Veilleux argue that ROW 2 is a "way," and not a "street," and hence the end of ROW 2 may count as "lot frontage" even if ROW 2 is "incomplete."

The By-Law doesn't define "street" or "way," and neither does the State Building Code. (The Code defines the term "public way," but that term doesn't appear in the By-law's definition of "lot frontage.") So back to the American Heritage Dictionary. It provides two pertinent definitions of "street": "1. A public way or thoroughfare in a city or town, usually including the sidewalks and buildings lining one or both sides. 2. Such a roadway for vehicles apart from the buildings and sidewalks." The same Dictionary defines "way" in pertinent part as "[a] course affording passage from one place to another; a road, path, or highway."

The Dictionary thus lends support to the Williams/Veilleux reading of the Incomplete Streets Exception: "streets" may be the public subset of "ways." There also are two canons of statutory construction that support the Williams/Veilleux reading. One is that when a statute or by-law expressly mentions one thing, but omits another, a court should treat the omission as intentional, provided that the resulting interpretation doesn't thwart the law's purposes. See, for example, Harborview Residents' Committee, Inc. v. Quincy Housing Authority, 368 Mass. 425 , 432 (1975); Trust Ins. Co. v. Bruce at Park Chiropractic Clinic, 430 Mass. 607 , 609 (2000). The other canon is that when a statute or bylaw uses a semicolon to separate one clause from another (as § 22-1 does, to separate the Adjacency Requirement from the Incomplete Streets Exception), one should read it as a sign that the law's drafters intended to convey two separate, independent concepts. See, for example, Moulton v. Brookline Rent Control Board, 385 Mass. 228 , 231 (1982).

The difficulty in deciding between the Perry and Williams/Veilleux interpretations of the Incomplete Streets Exception is that an important voice in this controversy has yet to be heard on the issue. That's the voice of the Board. Recall that the Board accepted the Site Plan's calculation of 12 Maple Lane's frontage, 116.49 feet. See Board's Decision at 2 (commissioner "said that the certified site plan shows frontage on the right of way of at least 69.12' and on the return right of way as 47.37'); id. ("The land surveyor indicates 116.49' of frontage and the Board cannot dispute that without evidence to the contrary."); id. ("surveyed site pan . . . clearly shows 116.49 feet [of] frontage on right of way off Maple Lane . . ."); id. at 3 (surveyor "testified that this lot conforms to all requirements as a buildable lot under Hull Zoning Bylaws"). The Board may have done so with no questions asked. The Board's decision repeatedly notes that a professional land surveyor had stamped the Site Plan. The decision also states that the Board was "not in a position to challenge a stamped surveyed plan."

It isn't clear from the By-law that the Board owed the Site Plan the deference the Board appeared to give it. That's particularly true where the Site Plan states on its face that its purpose "is to show the existing site conditions based on field measurements . . . and the proposed conditions based on [an architect's] design. . . ." (Emphases added.) The Site Plan didn't include a more encompassing certification as to the parties' easement rights. If it had, the certification would have been wrong, as the Site Plan depicts the extinguished portion of ROW 3. And this Court also has concluded that the Site Plan erroneously depended on that extinguished area for 47.37 feet of frontage.

Because the Board assumed that Williams and Veilleux had 116.49 feet of frontage, including 47.37 feet along ROW 3, the Board never heard or considered Williams and Veilleux's fallback position: that they could squeeze out of the end of ROW 2, as it abuts Lot 2, twelve or so feet of frontage. And because the Board never reached that fallback argument, the Board never considered whether the Incomplete Streets Exception prohibits Williams and Veilleux from counting as frontage the end of ROW 2 as it abuts Lot 2. At oral argument on the parties' cross-motions for summary judgment, counsel for the Board declined to take a position on Williams and Veilleux's streets-don't-include-ways argument, and asked for the opportunity to brief that issue. The Court wants to hear the Board's position, but not by way of a brief from its counsel. While the Court is conscious of the discretion a local board enjoys when interpreting its local zoning bylaws, see Wendy's Old Fashioned Hamburgers of New York, Inc. v. Board of Appeal of Billerica, 454 Mass. 374 , 381-382 (2009), it's preferable for boards to develop bylaw interpretations in the course of deciding cases, rather than through lawyers' briefs on appeal. See MacGibbon v. Board of Appeals of Duxbury, 347 Mass. 690 , 692 (1964); Palmer Renewable Energy, LLC v. Zoning Board of Appeals of Springfield, 22 LCR 380 , 386 (2014) (Sands, J.), aff'd, 88 Mass. App. Ct. 1104 (2015). That means this case should be remanded to the Board for official action.

One other comment. While the Williams/Veilleux interpretation of the Incomplete Streets Exception could be correct, it's possible that the Board historically has interpreted the Exception a different way. The Board should not read the Court's observations about the Incomplete Streets Exception as telling the Board, at this juncture, how it should have interpreted the Exception in the past, or how it should interpret the Exception in this case.

For the reasons stated above, the Court DENIES Defendants' motion for summary judgment as to Mr. Perry's "frontage" argument and GRANTS Mr. Perry's motion on that issue. The Court REMANDS to the Board Mr. Perry's appeal, for consideration of whether 12 Maple Lane has sufficient "lot frontage." The Court further ORDERS:

1. The Board shall commence a duly noticed public hearing on the frontage issue within 45 days of this Order. The Board's hearing shall incorporate all materials previously submitted to the Board during its previous public hearings on Mr. Perry's appeal from the Williams/Veilleux building permit. Mr. Perry shall be obligated to pay any notice and publication costs normally charged by the Board to those filing appeals under c. 40A, §§ 8 and 15.

2. The Board shall close its public hearing within 30 days of opening the hearing, unless Mr. Perry, Mr. Williams and Ms. Veilleux agree in writing to extend the deadline for closing the hearing. Within twenty days of closing the hearing, the Board shall issue a written decision concerning the lot-frontage issue, file a copy of that decision with the Town Clerk, and file a copy of that decision with this Court.

3. This Court retains jurisdiction over this case, including but limited to any appeal that Mr. Perry, Mr. Williams or Ms. Veilleux may take from the Board's decision after remand. Any party to this case who is aggrieved by the Board's decision after remand shall, within twenty days of the filing of the decision with the Town Clerk, (a) move in this Court for leave to submit an appropriate pleading for judicial review of the decision, and (b) file with the Town Clerk, with a copy to counsel of record in this proceeding, written notice of having filed the motion for leave, accompanied by a true copy of the motion for leave.

4. Nothing in this Order shall affect the rights of persons other than the parties to this action to appeal the Board's decision after remand.

5. Nothing in this Order shall prevent the parties from meeting to discuss settlement or settling this matter.

Finally, a few housekeeping matters. Williams and Veilleux's motion to strike (a) the "Introduction/Background" section of Mr. Perry's opposition and (b) various facts described in footnote 2 of Williams and Veilleux's motion is DENIED as moot, as the Court hasn't relied on any of the facts or assertions of fact that Williams and Veilleux hope to strike. The Court DENIES as moot Williams and Veilleux's motion to strike pages 14-19 of Perry's opposition, as well as the Board and Commissioner Lombardo's Motion to Strike, all of which relate to Perry's request for an award of fees and costs. The motions are moot because, since Defendants have prevailed on two of Perry's three issues, the Court DENIES Perry's motion for an award of fees and costs. But since Perry has won (for the moment) on his third, the Court DENIES Williams and Veilleux's motion for an award of costs and attorney's fees.