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

In Perry v. Hull Zoning Bd. of Appeals, 27 LCR 118 (2019) ("Perry II"), this Court held that (a) two abutting parcels owned by defendants Charles Williams and Anne Veilleux (the "Defendants") comprise a single "lot," called 12 Maple Lane, for purposes of §22-1 of the Town of Hull's Zoning By-law (the "By-law"); and (b) Defendants' proposed construction of a single-family residence on 12 Maple Lane won't violate the By-law's setback requirements. The Court declined to rule, however, on a third argument raised by plaintiff Donald Perry, who's an abutter to 12 Maple Lane: that 12 Maple Lane has insufficient "lot frontage" under the By-law to allow anything to be built on it as of right. Instead, this Court remanded the matter to defendant Hull Zoning Board of Appeals (the "ZBA") and asked it to decide Mr. Perry's "lot frontage" issue in the first instance.

On remand, the ZBA concluded that 12 Maple Lane has sufficient "lot frontage" under the By-law. The ZBA thus upheld the decision of Hull's building commissioner to issue Defendants a building permit for their proposed residence. Mr. Perry timely appealed that decision pursuant to G.L. c. 40A, §17.

After a hearing attended by all of the parties on August 1, 2019, this Court ordered Mr. Perry "to move for summary judgment on all issues by August 15, 2019." He did so. His motion challenges the ZBA's decision on remand on two grounds: that it erroneously concluded that (1) a right of way that Defendants propose to use to reach their proposed residence, a right of way that Perry II calls ROW 2, isn't suitable under the By-law for that purpose; and (2) the twelve-foot end of ROW 2 abutting 12 Maple Lane provides "lot frontage" for 12 Maple Lane. Defendants and the ZBA cross-move for summary judgment on the same two issues.

The facts upon which the parties rely in their motions and cross-motions for summary judgment are undisputed. For the reasons explained below, the Court holds that the ZBA lawfully disposed of the "lot frontage" issues in this case, and hence judgment should enter in FAVOR of the ZBA and Defendants and AGAINST Perry.

This Decision relies on five facts held to be undisputed in Perry II:

* 12 Maple Lane requires 75 feet of "lot frontage" under the By-law for Defendants to build something on 12 Maple Lane as of right.

* 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 yards shall be provided as indicated under Yard in this section." (Italics in original.)

* ROW 2 is a private right of way.

* ROW 2 runs 69.12 feet along a south-facing side of 12 Maple Lane, and ends at an east-facing side of 12 Maple Lane.

* At the point where ROW 2 terminates at 12 Maple Lane, ROW 2 is twelve feet wide.

To these five undisputed facts from Perry II, the Court now adds two others:

* Defendants haven't yet built a road within ROW 2.

* Defendants haven't proposed to build a turning circle, or any other special road feature, at the point where ROW 2 terminates against the side of 12 Maple Lane.

A decision of a local zoning board "'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." Wendy's Old Fashioned Hamburgers of New York, Inc. v. Board of Appeal of Billerica, 454 Mass. 374 , 381- 382 (2009), quoting MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 639 (1970). Mr. Perry challenges on three grounds ROW 2's suitability for providing "lot frontage" to 12 Maple Lane. He first points out that ROW 2 isn't a public way. That's true, but that fact makes no difference: the By-law's definition of "lot frontage" doesn't require a property to have frontage along a "public way" for the property to be buildable. Instead, the By-law allows one to claim "lot frontage" if his or her property abuts either a "street or way" along which the owner claims frontage. This Court held in Perry II, 27 LCR at 121, that the term "way" means "[a] course affording passage from one place to another; a road, path or highway."

Perry contends that the "passage" ROW 2 affords is insufficient, as it doesn't connect to a public way. Perry rests his argument on this Court's rulings and judgment on remand in Perry v. Nemira, 23 LCR 49 (2015) (Sands, J.), aff'd in part and rev'd in part, 91 Mass. App. Ct. 12 (2017), judgment following rescript entered, 11 MISC 457717 (July 25, 2017) ("Perry I"). The Appeals Court in Perry I notes that a way that the court called ROW 1 runs from the eastern end of ROW 2 to a public way sometimes called Center Hill Avenue. See Perry I, 91 Mass. App. Ct. at 14. Perry insists that Perry I declares that Defendants' rights to use ROW 1 to reach Center Hill Avenue have been extinguished. That's incorrect. Perry I states this:

Although we conclude that Perry has deeded access and utility easements over ROWs 1 and 3 benefiting his lot 3B, and that the Nemiras [Defendants' predecessors in interest] have deeded access and utility easements over ROWs 1 and 3 for the benefit of [12 Maple Lane], the judge determined that Perry has extinguished by adverse possession the Nemiras' rights over a portion of ROW 1 between lot 3B and 9B, and ROW 3 where it intersects with ROW 1 . . . [W]e cannot say the judge erred. ROW 1 has been extinguished, however, only over the portion of the way that has been blocked. It has not been extinguished over the portion of ROW 1 which intersects with ROW 2 and leads to the public way.

Id. at 19 (emphases added). This Court thus concludes that ROW 2 meets the By-law's definition of a "way," as it provides passage to a public way.

Mr. Perry next claims that ROW 2 is unsuitable for lot-frontage purposes because no one has laid out or built ROW 2 in accordance with the provisions of the Massachusetts Subdivision Control Law, M.G.L. c. 41, §§81K et seq. The Court rejects this argument, for two reasons. First, Perry hasn't submitted with his summary-judgment motion a copy of Hull's subdivision rules and regulations. A court can't take judicial notice of local land-use regulations; a party who contends that such regulations are pertinent to his or her case is obliged to prove the content of those regulations with admissible evidence. See Bartlett v. Board of Appeals of Lakeville, 23 Mass. App. Ct. 664 , 672 (1987). Because Perry hasn't submitted Hull's subdivision regulations, this Court can't determine whether Defendants' proposed construction along ROW 2 will comply with (or, alternatively, violate) those regulations. Perry thus loses on the "construction requirements" issue for failing to provide admissible, undisputed facts in support of his argument.

Even if Mr. Perry had proven, as a factual matter, that Defendants can't build a road within ROW 2 that meets Hull's subdivision regulations, he'd still not prevail on his "construction requirements" objection. That's because the By-law doesn't require a landowner, in order to use a "street or way" as lot frontage, to prove that the street or way meets Hull's standards for construction of roads within subdivisions. With two exceptions, the authorities Perry cites in support of his subdivision- standards argument arise in the context of M.G.L. c. 41, §81L's exemptions from the Subdivision Control Law for plans showing particular types of private ways. Only one of his cases, Libucha v. Town of Belchertown, 21 LCR 575 (2013) (Long, J.), raises the issue in the context of whether a way meets a town's zoning requirements for roads suitable for providing frontage, but the zoning bylaw at issue in Libucha expressly incorporated the town's subdivision-road standards in designating the ways suitable in that town for frontage. Municipalities are free to peg to the Subdivision Control Law their frontage requirements under zoning, but Hull's By-law doesn't do that. (Perry also cites in support of his "subdivision standards" argument an excerpt from article written by a Massachusetts attorney. That attorney asserts that ways that don't meet the Subdivision Control Law can't be used for frontage, but the attorney provides no support for that observation. In fact, that assertion erroneously flips the relationship between zoning bylaws and §81L. Under §81L, an owner can't claim that a way satisfies §81L's frontage requirements unless the way meets "at least such distance as is then required by zoning or other ordinance or by-law, if any . . . ." But no statute sets forth the converse proposition.)

Mr. Perry's last argument concerning ROW 2 is that Defendants' rights to use ROW 2 aren't sufficiently broad to allow ROW 2 to serve as frontage. That contention is contrary to the Appeals Court's ruling in Perry I. There the court held that 12 Maple Lane's easement over ROWs 1 and 2 is an "access" easement. "'Where [an] easement arises by grant and not by prescription, and is not limited in its scope by the terms of the grant, it is available for the reasonable uses to which the dominant estate may be devoted.'" Town of Bedford v. Cerasuolo, 62 Mass. App. Ct. 73 , 82 (2004), quoting Parsons v. New York, N.H. & H.R.R., 216 Mass. 269 , 273 (1913). Perry I doesn't mention any limitations on 12 Maple Lane's access easement, and thus Defendants may use ROWs 1 and 2 for all of the reasonable uses to which they may "devote" 12 Maple Lane, including its use as the site of a single-family residence.

The Court now turns to Mr. Perry's other principal contention, that the ZBA improperly treated the twelve-foot end of ROW 2 as suitable for use as "lot frontage." In Perry II, this Court noted that the By-law's definition of "lot frontage" states that "the ends of incomplete streets, or streets without a turning circle, shall not be considered frontage . . . ." Perry II called this the "Incomplete Streets Exception." See Perry II, 27 LCR at 120. Perry argues that the end of ROW 2 that runs into 12 Maple Lane is an "end[] of [an] incomplete street[]," and that because that end of ROW 2 lacks a "turning circle," he claims that, under the Incomplete Streets Exception, Defendants can't include the twelve-foot end of ROW 2 as part of 12 Maple Lane's "lot frontage."

This Court held in Perry II that the By-law doesn't define "street," just as it doesn't define "way." Perry II further holds that "street" could mean either "a public way or thoroughfare in a city or town" or, more generally, "a roadway for vehicles apart from . . . buildings and sidewalks." It appears that, on remand, the ZBA chose the former definition of "street," a definition that distinguishes "streets" from "ways." The ZBA also concluded that only "streets" trigger the Incomplete Streets Exception. The ZBA further reasoned that because ROW 2 isn't a "public way," ROW 2 isn't a "street," and thus ROW 2 isn't subject to the Incomplete Streets Exception.

A court must interpret a zoning bylaw as it would a statute. See Shirley Wayside Limited Partnership v. Board of Appeals of Shirley, 461 Mass. 469 , 477 (2012).

We interpret a statute according to the intent of the Legislature, which we ascertain from all the statute's words, "construed by the ordinary and approved usage of the language" and "considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished." . . . "Ordinarily, where the language of a statute is plain and unambiguous, it is conclusive as to legislative intent." That said, we will not adopt a literal construction of a statute if the consequences of doing so are "absurd or unreasonable," such that it could not be what the Legislature intended . . . Our principal objective is to ascertain and effectuate the intent of the Legislature in a way that is consonant with sound reason and common sense.

Ciania v. MacGrath, 481 Mass. 174 , 178 (2019), quoting Harvard Crimson, Inc. v. President & Fellows of Harvard College, 445 Mass. 745 , 749 (2006), and Sharris v. Commonwealth, 480 Mass. 586 , 594 (2018).

There are three further canons of statutory construction that bear on how this Court must interpret the Incomplete Streets Exception. 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 second is that when a statute or bylaw uses a semicolon to separate one clause from another (as §22-1's definition of "lot frontage" does, to separate the first of its requirements from the Incomplete Streets Exception), one should treat that semicolon as a sign that the law's drafters intended to convey two separate and independent concepts. See, for example, Moulton v. Brookline Rent Control Bd., 385 Mass. 228 , 231 (1982). Finally, a local zoning board's reasonable interpretation of its bylaw deserves deference unless that interpretation is devoid of logic or reason. See Wendy's, 454 Mass. at 381.

Taking these principles together, the Court concludes that the ZBA's interpretation of the Incomplete Streets Exception is reasonable, and corresponds with the intentions of Hull's Town Meeting as expressed in the words (and punctuation) it chose in adopting §22-1's definition of "lot frontage." Mr. Perry correctly observes that other provisions of the By-law appear to use "streets" and "ways" interchangeably. But he has offered no evidence that Town Meeting intended for those terms as they appear within the Incomplete Streets Exception to be interchangeable. He also hasn't offered facts explaining why, having mentioned "streets or ways" in the first part of §22-1's definition of "lot frontage," Town Meeting dropped the word "way" from the second part of the definition, the part that comprises the Incomplete Streets Exception.

Mr. Perry contends that if the ZBA's interpretation of the Exception is correct, two "'absurd or unreasonable'" results will follow, and thus the ZBA's reading can't be right. Ciania, 481 Mass. at 178, quoting Sharris, 480 Mass. at 594. He first claims that 12 Maple Street won't qualify as a "lot" under the By-law if ROW 2 isn't a "street." The Court disagrees. Perry II observes that the By-law's definition of "lot" contains only four requirements, one of which requires that the property be "bounded by other lots or by streets . . . ." (Emphasis added.) Perry didn't dispute in Perry II the fact that "lots" surround 12 Maple Lane on all sides. See Perry II, 27 LCR at 119. According to Perry I, ROW 2 is on Perry's property. That property bounds 12 Maple Lane to the south and east. See Perry I, 91 Mass. App. Ct. at 14 (ROW 2 runs "over the northerly section of lot 3B," owned by Perry, "and then southerly along lot 3B's eastern border to ROW 1"). The ZBA's interpretation of the Incomplete Streets Exception thus does not preclude 12 Maple Street from being considered a "lot" under the By-law.

Mr. Perry's second supposedly absurd result is that, if the end of ROW 2 may be used as frontage, Defendants will have to treat ROW 3 (which bisects 12 Maple Lane) as part of their frontage too. Perry doesn't point to any provision of the By-law that supports his argument. While the end of ROW 2 abutting 12 Maple Lane overlaps with ROW 3, both Perry I and Perry II hold that ROW 2 and ROW 3 are independent easements, created at different times. See Perry I, 91 Mass. App. Ct. at 14-15; Perry II, 27 LCR at 118-119. Declaring that ROW 2 can provide "lot frontage" to 12 Maple Avenue has no implications for ROW 3.

Thus, neither of Mr. Perry's two arguments as to the substance of the ZBA's decision on remand succeed. That means the Court must DENY his motion for summary judgment, and grant Defendants and the ZBA's cross-motions for summary judgment on the same two issues.

But the Court must address a final issue before it can enter judgment in favor of Defendants and the ZBA. Mr. Perry alleges in his motion for summary judgment that the ZBA acted with "gross negligence, bad faith and malice" in issuing its decision on remand. While misconduct by members of a zoning board can deprive a citizen of his or her right to due process, and thereby so taint the board's resulting decision that a reviewing court must annul it (see Maniace v. Board of Aldermen of Newton, 8 LCR 172 , 174-176 (2000) (Kilborn, C.J.); see also Alford v. Boston Zoning Commission, 84 Mass. App. Ct. 359 , 364 (2013), quoting Police Comm'r of Boston v. Municipal Ct. of West Roxbury Dist., 368 Mass. 501 , 507 (1975) (rights under art. XXIX, Mass. Dec. of Rights, to impartial judges extend to "'all persons authorized to decide the rights of litigants'"); Mullin v. Planning Bd. of Brewster, 17 Mass. App. Ct. 139 , 142- 143 (1983) (planning board's actions under c. 40A, §9 are "adjudicatory in nature")), Perry hasn't alleged that the ZBA deprived him of his due-process rights on remand. Instead, his briefs on summary judgment mention the ZBA's alleged misconduct only in hopes that, were he to prevail in this case, he could obtain an award of costs from the ZBA. See c. 40A, §17 ("Costs shall not be allowed against the board . . . unless it shall appear to the court that the board . . . in making the decision appealed from acted with gross negligence, in bad faith or with malice.").

This Court interprets §17's "costs" provision as modifying the general rule, expressed in Rule 54(d), Mass. R. Civ. P., that a prevailing party is entitled to an award of statutory "costs." Having not succeeded on either of his stated challenges to the ZBA's decision on remand, Perry isn't the "prevailing party" in this case (see Waxman v. Waxman, 84 Mass. App. Ct. 314 , 326 (2013) ("prevailing party" under Rule 54(d) "ordinarily means the party achieving a favorable judgment")), and hence the issue of Perry's entitlement to costs from the ZBA is moot. Even if the issue weren't moot, in the sole statement of material facts that he filed pursuant to Land Court Rule 4 in connection with the parties' motions for summary judgment, Perry didn't identify any facts pertaining to the ZBA's alleged misconduct at its hearing on remand. Rule 4 obligates parties who move for, or who oppose, summary judgment to identify all of the material facts that favor their position. Perry's failure to do so with respect to the ZBA's alleged misconduct on remand dooms any summary-judgment argument based on that alleged misconduct, notwithstanding the fact that he's lacked the assistance of an attorney throughout this case. See Land Court Rule 4 (failure to comply with Rule's requirements regarding alleged material facts may result in denial of summary-judgment motion); Frullo v. Landenberger, 61 Mass. App. Ct. 814 , 820 (2004) (party's self-representation does not excuse him "from observing normal requirements regarding . . . summary judgment motions").

The Court thus GRANTS Defendants and the ZBA's cross-motions for summary judgment, having prevailed on Mr. Perry's two sole attacks on the ZBA's decision on remand. Defendants and the ZBA have moved under c. 40A, §17 for an award of their own costs in this action. Section 17 provides in part that "[c]osts shall not be allowed against the party appealing from [a] decision of [a board of appeals] unless it shall appear to the court that said appellant . . . acted in bad faith or with malice in making the appeal to the court." Defendants and the ZBA have offered insufficient proof of Perry's bad faith or malice within the meaning of §17. All that they point to is Perry's prior efforts to prevent development of 12 Maple Lane. That's not the sort of bad faith or malice that results in awards of costs. See Sheehan v. Zoning Bd. of Appeals of Plymouth, 65 Mass. App. Ct. 52 , 61-62 (2005). Perry's litigation efforts haven't been entirely meritless either. He prevailed on several issues in Perry I, and in Perry II, he convinced this Court that the ZBA had relied on the building commissioner's improper calculation of 12 Maple Lane's "lot frontage" (the commissioner had counted the property's distance along so-called ROW 3, outside of where it overlaps with ROW 2). See Perry II, 27 LCR at 120. Perry also did not act in bad faith or with malice in challenging Defendants' argument that the Incomplete Streets Exception doesn't apply to ROW 2, an argument that Defendants raised for the first time on appeal to this Court. This Court noted in Perry II that Defendants' argument could have been right, but it could have been wrong. See id. at 121. Perry's mere loss of this action, after two rounds of summary judgment, doesn't prove bad faith or malice. The Court thus DENIES Defendants and the ZBA's motions for an award of costs under c. 40A, §17.

Judgment to issue accordingly.