Home JAMES T. CONNOLLY, as Trustee of the Parker River Realty Trust v. TOWN OF NEWBURY.

MISC 18-000695

July 1, 2019

Essex, ss.



Plaintiff James T. Connolly, the trustee of the Parker River Realty Trust, asks this Court to declare under G.L. c. 240, § 14A, how § 97-6(B) of the defendant Town of Newbury's Zoning By-Laws (the "By-Laws") applies to the Trustee's property at 277 High Road in Newbury. The parties agree that the Trustee's request turns on undisputed facts, and thus the Court properly may declare the Trustee's rights (one way or the other) on summary judgment.

Here are the undisputed facts. 277 High Road is in an Agricultural-Residential (or "R-AG") District under the By-Laws. 277 High Road sits at the intersection of two public ways, High Road and Cottage Road. The property is close to 6.5 acres in size. There are several structures on the property, including a 2.5-story, single-family residence (which this decision will call the "House") and a two-story Barn. The House and the Barn pre-date the Town's adoption of the By-Laws. The closest public way to the House and the Barn is High Road. The House and the Barn's distance from High Road varies, but it's undisputed that both buildings are less that twenty feet from that road. On the High Road side of 277 High Road, there are no buildings between the House and the Barn.

Section 97-6(B) of the By-Laws contains a Table of Dimensional Requirements (the "Table"). The Table sets forth minimum and maximum dimensions for properties in the Town of Newbury's zoning districts, depending on the property's intended uses. The Table provides that, for any type of residence proposed in the R-AG District, one is to determine the minimum setbacks for that residence in accordance with Note 2 of the Table. That note provides in pertinent part: "No part of any building on lots in said district may stand less than 10 feet from a property line or less than 20 feet from a street unless a nearer building line is already established by existing buildings."

The dispute before the Court is whether the House and the Barn comply with Note 2 (by virtue of their creating a "nearer building line" relative to High Road), or whether the House and the Barn are pre-existing, lawfully non-conforming buildings under the By-Laws (by virtue of their being closer than twenty feet to High Road, not benefiting from a "nearer building line," but having been built before the Town adopted the By-Laws). If the House and Barn comply with Note 2, the Trustee thinks he'll have greater flexibility developing 277 High Street. He's already received approval to divide the property into six single-family residential lots. If the House and Barn don't comply with Note 2, the Trustee still believes he can proceed with his development plans, but he may have to cope with By-Laws pertaining to non-conforming structures and the properties that host them.

The issue as the parties present it is purely one of interpretation: what does Note 2 mean when it provides for a "nearer building line . . . already established by existing buildings?" Courts determine the meaning of zoning bylaws "by the ordinary principles of statutory construction. We first look to the statutory language as the principal source of insight into legislative intent. When the meaning of the language is plain and unambiguous, we enforce the statute according to its plain wording unless a literal construction would yield an absurd or unworkable result." Shirley Wayside Ltd. P'ship v. Board of Appeals of Shirley, 461 Mass. 469 , 477 (2012) (internal citations and quotations omitted). Section 97-11(D)(2) of the By-Laws defines four terms that appear in Note 2, or that relate to such terms. Those terms are, in alphabetical order, "building," "lot," "street," and "street, highway." Section 97-11(D)(2) defines "building" as

A combination of any materials, whether portable or fixed, having a roof, the purpose of which is the shelter of persons, animals, property or processes. . . . The word "building" shall be construed where the context allows as though followed by the words "or parts thereof". Building includes open porches, open breezeway [sic] and other roofed areas.

"Lot" is defined as "[a]ny piece of land used or designed for use as the location of a residence or building." "Street" is defined as including "a public way. . . ." Finally, § 97-11(D)(2) defines "Street, Highway," "[f]or the purpose of . . . § 97-6" of the By-Laws (recall that Note 2 is part of § 97-6's Table) "where appropriate, the street lot line or the highway lot line."

Using these definitions, the Trustee's interpretation of Note 2's clause, "nearer building line . . . already established by existing buildings," is straightforward: (a) the House and the Barn are "buildings"; (b) they are "existing"; (c) together they create a "building line" along High Road; and hence (d) since the House and Barn form the "building line," by definition they conform to Note 2's setback requirements as they pertain to the High Road side of 277 High Road. The key piece of the Trustee's argument is his interpretation of "building line," a term that the By-Laws don't define. In the Trustee's view, a "building line" is simply the line formed by the side of an "existing building" that faces a street. If there are two or more buildings along the same street, the "building line" runs along the faces of the "existing buildings," but jumps from the corner of one "existing building" to the next.

In response to the Trustee's plain-meaning arguments, the Town suggests that Note 2 applies only in situations where there are two or more "lots" that host "existing buildings." The Town's interpretation has some support in the text of Note 2. Recall that Note 2 states (emphasis added): "No part of any building on lots in said district may stand less than 10 feet from a property line or less than 20 feet from a street unless a nearer building line is already established by existing buildings." So the Town's right that a part of Note 2 contemplates its application to multiple "lots." But the word "lots" doesn't appear in Note 2's "unless" clause (the underlined language). That's the key clause here, and the Court won't insert into it words that aren't there absent proof (missing in this case) that Newbury's town meeting intended those words to be there.

So the Town's plain-meaning argument isn't as persuasive as the Trustee's. But the Trustee's clincher is Moore v. Noyes, 18 LCR 591 (2010) (Trombly, J.). In Moore, Mark and Teresa Richey applied for and received a special permit from the Newbury Zoning Board of Appeals, under the Newbury By-Laws, to renovate their home. That home was a legal non-conforming use (but not a non-conforming structure) under the By-Laws. The Moores appealed the special permit, claiming in part that the renovated Richey residence would violate Note 2's requirement that every part of a building be at least ten feet from a property line. The ZBA recognized in granting the special permit that the Richeys' existing residence was only 2.9 feet from the Richeys' northern property line and 9.7 feet from their southern property line; the Richeys proposed to locate their renovated residence 7.5 feet from each property line. Construing the same Note 2 that's at issue in this case, this Court held that the Richeys' existing residence created "nearer building lines" on both the north and south sides of their property for purposes of Note 2, and hence the By-Law permitted those reduced setbacks as of right. Id. at 593.

The Town claims that Moore's interpretation of Note 2 is dicta. Not so: Moore states that the Moores raised the side-yard setback issue "in their appeal," and the Court's subsequent analysis of Note 2 resolved that issue. Id. While the Trustee can't claim that Moore precludes the Town from further litigating the issue (the Town wasn't a party to Moore), Moore's reasoning is sound, the Town's ZBA was a party (albeit a "passive" one, see id. at 591 n. 2 (emphasis in original)), and the Town hasn't convinced this Court that Moore was wrongly decided. So if only for consistency's sake, this Court is inclined to stick with Moore's reading of Note 2.

The Trustee offers one additional argument in support of his interpretation of "building line." It's undisputed that, after Moore was decided, Newbury's town meeting amended § 97-6 of the By-Laws three times, but didn't disturb Note 2. Citing the Supreme Judicial Court's decision Bellalta v. Zoning Bd. of Appeals of Brookline, 481 Mass. 372 , 383 (2019), quoting Norman J. Singer & J.D. Shambie Singer, 3C Statutes and Statutory Construction § 77:7, 711 (8th ed. 2018) ("[w]here a statute or provision that has been given a particular construction by the courts is reenacted 'without substantial change, it is generally fair to assume the legislature is familiar with that interpretation and adopted it'"), the Trustee argues that Newbury's town meeting effectively has ratified Moore's interpretation of "building lines."

This Court hasn't found a decision that has used the Singers' presumed-adoption doctrine to interpret a municipality's zoning bylaw. While there are numerous cases that hold that courts must interpret zoning bylaws in the same manner as the courts would interpret a statute (see, for example, Shirley Wayside, 461 Mass. at 477), there's an important difference between zoning bylaws adopted under c.40A and run-of-the-mill legislation: under c.40A, § 5, a "two-thirds vote" (or, in some cases, a "three-fourths vote") is needed to adopt a "zoning ordinance or by- law or amendment thereto. . . ." It's thus possible that, ever since Judge Trombly's decision in Moore, 65% of Newbury's town meeting members have consistently and vehemently disagreed with this Court's interpretation of Note 2, but owing to c.40A, § 5's supermajority requirements, they haven't been able to amend Note 2. For that reason, this Court declines to use the presumed-adoption doctrine in interpreting zoning bylaws adopted under § 5. The Trustee prevails in any event.

Judgment to issue accordingly.