September 16, 2019

Essex, ss.



Plaintiffs Richard and Diane DeSantis own a vacant parcel of land at 58 South Main Street in Middleton, Massachusetts. In 2008, the Town of Middleton's Building Commissioner denied them a building permit to construct a single-family residence on their land. The DeSantises appealed that denial to the Middleton Zoning Board of Appeals and, later, to this Court. This Court (Sands, J.) upheld the denial, concluding that the Commissioner and the Board had interpreted Middleton's zoning bylaws lawfully. See DeSantis v. Murphy, 18 LCR 399 (2010) (Sands, J.) ("DeSantis I").

The DeSantises revised their plans and reapplied in 2018 for a building permit. The Commissioner denied the permit, citing (in part) the same zoning issues that doomed the DeSantises' 2008 permit application. They appealed a second time to the Board, which (following two separate reviews) again sided with the Commissioner. This Court concludes that, owing largely to DeSantis I, the latest permit denial is lawful too.

The case is before this Court pursuant to M.G.L. c. 40A, §17. The DeSantises moved for summary judgment, claiming that the Board's March 2019 decision upholding the Commissioner's denial of their permit application was contrary to law. The Board opposed the DeSantises' motion, and didn't cross-move for summary judgment, but at oral argument on the DeSantises' motion, the Board contended that the undisputed facts warranted the entry of summary judgment in the Board's favor. The Court advised the DeSantises that it might do that, and gave them the opportunity to advise the Court of any facts they hadn't presented in their motion that would warrant denying summary judgment to the Board. See Gamache v. Mayor of North Adams, 17 Mass. App. Ct. 291 , 295-296 (1983) (judge has the power, in the absence of a motion, to render full summary judgment against party who moved for partial summary judgment, "provided that the parties had sufficient notice of his intention to do so, [the] opportunity to submit affidavits, and a right to be heard on the matter"). The DeSantises replied that they had no additional facts to offer.

So here are the undisputed facts, as agreed by the parties. The 1937 version of the Town of Middleton's zoning bylaws applies to the DeSantis property. Part III, § 6(1) of the 1937 bylaws provides: "No building or structure in a residential district shall extend nearer any street line than 60 feet, except that if there is a principal building upon each side of and within 500 feet of the building in question and then only on a line with said building." (Emphasis added. This decision will call the italicized language, as did DeSantis I, the "1937 Bylaw Exception".)

The DeSantis property at 58 South Main Street is nestled between South Main Street (to the southwest) and Old South Main Street (to the north). There are parcels abutting the other two sides of the DeSantis property. The parcel that abuts the DeSantis property to the northwest, a parcel called Lot 85, is a triangle (the DeSantis property on one side, and intersecting Old South Main and South Main Streets on the other two sides). Lot 85 is vacant. The parcel that abuts the DeSantis property on the southeast, 62 South Main Street, has a house on it; that house stands within 500 feet of where the DeSantises hope to build a house on their property.

In April 2018, the DeSantises applied to the Middleton Building Commissioner for a building permit for construction of a single-family house. The DeSantises proposed to locate the house only 11.5 feet from South Main Street and 25.7 feet from Old South Main Street, and not the 60 feet usually required under § 6(1) of the 1937 bylaws. Citing that problem (among others, now resolved), the Commissioner denied the DeSantises' application.

The DeSantises claimed before the Board, and now argue to this Court, that the 1937 Bylaw Exception exempts their proposal from § 6(1)'s 60-foot street setback requirement. "Review of a board's decision . . . pursuant to [c. 40A, § 7] involves a 'peculiar' combination of de novo and deferential analyses." Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Bd. of Appeals of Billerica, 454 Mass. 374 , 381 (2009), quoting Pendergast v. Bd. of Appeals of Barnstable, 331 Mass. 555 , 558 (1954). The board's 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. . . ." Wendy's, 454 Mass. at 381-382, quoting MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 639 (1970). Typically, a judge reviewing a zoning board's decision pursuant to §17 finds the facts de novo. However, "a judge who decides the case on motions for summary judgment engages in no fact finding at all. Instead, the judge looks at the record to determine whether there is any genuine issue of material fact and, if not, whether the evidence, viewed in the light most favorable to the nonmoving party, shows that the moving party is entitled to judgment as a matter of law." Albahari v. Zoning Bd. of Appeals of Brewster, 76 Mass. App. Ct. 245 , 248-249 (2010).

The 1937 Bylaw Exception applies to a proposed building or structure in a Middleton residential district only "if there is a principal building upon each side of and within 500 feet of the building in question and then only on a line with said building." (Emphasis added.) It's undisputed that while there's a "principal building" (more specifically, a house) on 62 South Main Street, there's no building (principal or otherwise) on Lot 85, the other lot abutting the DeSantis property. The Board ruled that the DeSantises could meet the 1937 Bylaw Exception's "each-side-of-the-building-in-question" requirement only if Lot 85 had a principal building upon it. That's not the case today.

The DeSantises contend that the Board's interpretation of the 1937 Bylaw Exception is unreasonable. They argue that the Board's reading deprives those owning lots that are bordered by 500 feet or more of vacant land from ever benefiting from the Exception. That may be true, but for two reasons that's not enough for this Court to hold that the Board's interpretation of the Exception is wrong. First, the Board urged the same interpretation in DeSantis I, and this Court upheld it as reasonable. See DeSantis I, 18 LCR at 401 n. 12 ("Lot 85 is vacant and cannot be used for the 1937 Bylaw Exception."). The DeSantises didn't appeal DeSantis I, and thus the final judgment in DeSantis I precludes the DeSantises from re-litigating the issue of whether the Exception applies when there is a vacant land 500 feet to one side of the Exception's "building in question." See Kobrin v. Bd. of Registration in Med., 444 Mass. 837 , 843 (2005) (prior final judgment precludes litigation of subsequent claims where there is an identity of parties to the present and prior actions, the causes of action are identical, and the prior action produced a final judgment on the merits).

The DeSantises argue that DeSantis I actually decided the "vacant parcel" issue in their favor. They quote other language from DeSantis I's note 12 in which the Court stated that "[r]egardless, this court does not agree with the ZBA that the 1937 Bylaw Exception requires a principal building on all lots immediately adjacent to Locus." (Emphasis added.) The DeSantises misunderstand DeSantis I on this point. The Court rejected only the argument that the Exception required qualifying principal buildings on every immediately adjacent lot. That's a correct observation: after all, the Exception doesn't use the words "immediately adjacent," "lot" or "parcel." But it's equally clear from the text of the Exception and DeSantis I that the Exception frames its requirements in terms of two parameters, distance (within 500 feet of a proposed building or structure) and position (on "each side" of that building or structure). The DeSantises' current plans for their house don't meet those requirements.

Even if DeSantis I didn't preclude the DeSantises from challenging the Board's interpretation of the 1937 Bylaw Exception, this Court would reach the same result on the merits. The Exception clearly states that in order for it to apply, there must be an existing building "on each side" of the proposed building. The Court must give clear language in a zoning bylaw its "common and approved meaning, 'without regard to [the Court's] own conceptions of expediency.'" Framingham Clinic, Inc. v. Zoning Bd. of Appeals of Framingham, 382 Mass. 283 , 290 (1981), quoting Commonwealth v. S.S. Kresge Co., 257 Mass. 145 , 148 (1929). If that were not enough, under c. 40A, §17, a court usually must defer to a local board's interpretation of its own zoning bylaw. "Where the board's interpretation is reasonable . . . the court should not substitute its own judgment." Tanner v. Bd. of Appeals of Boxford, 61 Mass. App. Ct. 647 , 649 (2004). In this instance, the Court's judgment as to the meaning of the 1937 Bylaw Exception is identical to the Board's.

The Court thus DENIES the DeSantises' motion for summary judgment. Instead, the Court ENTERS summary judgment in favor of the Board. See Mass. R. Civ. P. 56(c) (providing that summary judgment may be rendered against the moving party). The decision in this case is without prejudice to the DeSantises' rights, whatever they may be, to apply for a special permit or variance for their project. Judgment to enter accordingly.