ADRIAN BIGNAMI and PETRA BIGNAMI v. MIGUEL SERRANO and MARISA SERRANO, and JESSE GELLER, JOHANNA SCHNEIDER, MARK ZUROFF, KATE POVERMAN, LARK PALERMO, STEPHEN CHIUMENTI and RANDOLPH MEIKLEJOHN as members of the Brookline Zoning Board of Appeals; TOWN OF BROOKLINE, acting by and through its Zoning Board of Appeals v. MIGUEL SERRANO and MARISA SERRANO; MIGUEL SERRANO and MARISA SERRANO v. TOWN OF BROOKLINE and JESSE GELLER, JOHANNA SCHNEIDER, MARK ZUROFF, KATE POVERMAN, LARK PALERMO, STEPHEN CHIUMENTI and RANDOLPH MEIKLEJOHN as members of the Brookline Zoning Board of Appeals

Introduction

This case involves the proposed conversion of what is presently the single-family dwelling at 150 Tappan Street in Brookline into a two-family residential structure. Miguel and Marisa Serrano (hereinafter, the "Serranos") applied for a special permit to enlarge their single-family home and then convert it into a two-family dwelling under Brookline Zoning By-law §4.07 - Table of Use Regulations, Use #3 (hereinafter, "Use #3") which also incorporates the language from Brookline Zoning By-law §4.07 - Table of Use Regulations, Use #2 (hereinafter, "Use #2"). In relevant part, those provisions allow the conversion of single-family homes into two-families if the structure being converted was "originally constructed for single family occupancy." After a hearing, the Brookline Zoning Board of Appeals denied the permit application based on its ruling that the original construction of the Serrano house was not as a single-family residence but rather as a stable, which was not converted into a dwelling until decades later.

The board's decision, however, was not filed with the Town Clerk within 90-days of the board vote. Pursuant to G.L. c. 40A, §9, that failure to take final action within the 90-day deadline resulted in a constructive allowance of the special permit. Bldg. Inspector of Attleboro v. Attleboro Landfill, Inc., 384 Mass. 109 , 113 (1981) (holding that "final action" regarding G.L. c. 40A, §9 means filing the decision with the Town or City Clerk and that failing to file within the time period results in constructive allowance of the special permit). Subsequently, the Serranos timely filed proper notice claiming the constructive grant of the special permit.

The following appeals were then filed. Case No. 19 MISC. 000246 is Adrian and Petra Bignami's (the Serranos' immediate neighbors) [Note 1] G.L. c. 40A, §17 request for annulment of the constructively-granted special permit. Case No. 19 MISC. 000248 is the Town of Brookline's appeal seeking the same relief. Case No. 19 MISC. 000235 is the Serranos' appeal of the board's untimely decision (made more than 90 days after the board vote) denying their special permit application, and their request for a declaration from this court that the board's interpretations of Use #2 and Use #3 were invalid. The cases were consolidated for trial and tried on a case-stated basis "with the court allowed to draw appropriate factual inferences" from the agreed-upon facts and documents. [Note 2] See Cady v. Dewitt, 24 LCR 636 , 636 (Mass. Land Ct., 2016) (internal citations omitted); Town of Ware v. Town of Hardwick, 67 Mass. App. Ct. 325 , 326 (2006).

The fact that there was a constructive grant has no material effect on the outcome of the appeals because each turns solely on the proper interpretation of the Brookline Zoning Bylaw - a question of law for the court to determine with no deference given to the local board, regardless of what the board's decision was. See generally Shirley Wayside Ltd. P'ship v. Bd. of Appeals of Shirley, 461 Mass. 469 , 474-475 (2012); Framingham Clinic, Inc. v. Zoning Bd. of Appeals of Framingham, 382 Mass. 283 , 290 (1981); Smith v. Cole, 27 LCR 232 , 234 (Mass. Land Ct., 2019) (citing Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 73 (2003)). As more fully explained below, the clear and unambiguous language in the zoning bylaw requires that the constructive allowance of the special permit to enlarge and convert 150 Tappan Street into a two-family dwelling be vacated and reversed.

Facts

These are the facts as I find them after trial.

In 1904, a single-family house with a stable behind it stood on what was then a single lot, located at and numbered 146 Tappan Street in Brookline. A driveway led from Tappan Street to the house, and then past it to the stable (hereafter, the "existing driveway"). The stable remained a stable until 1925, when the then-owner of the property, Edith May, applied for a "Permit for Alterations, etc." to change it into a dwelling space where she could locate her artist's studio. The permit was granted, and the stable was then so altered into the artist's studio later that year. Ms. May continued to live in the main house at the front of the property.

In early 1954, Ms. May filed an ANR plan that divided the property into two lots, one in the front and one in the back, and then conveyed the two to Benedict and Ethel Alper, where the lots remained in common ownership. The ownership of the two lots did not become separated until later in 1954 when the Alpers deeded the back lot and its house (the former stable) to George and Janet Faxon, while retaining ownership of the front lot and its house and continuing to live there. The front lot remained 146 Tappan Street and the back lot was now numbered 150 Tappan Street, with access to the back lot continuing to be over the existing driveway that now became shared.

Both lots have gone through several ownership changes since 1954. The Serranos, the current owners of 150 Tappan Street (the back lot), now seek to enlarge and then convert their house into a two-family dwelling pursuant to zoning bylaw Use #3, which incorporates the language from Use #2. The Bignamis, the current owners of the front lot, 146 Tappan Street, are adamantly opposed to the Serranos' house becoming a large two-family - an opposition joined by many of the other homeowners in the neighborhood.

Whether the conversion can take place depends upon the proper interpretation of Use #2, which permits conversion to two-family occupancy in this zoning district by special permit if, but only if, the structure being converted is a:

Detached dwelling on a separate lot originally constructed for single-family occupancy prior to the effective date of this By-law and containing a minimum gross floor area of 2,400 square feet and converted for occupancy by not more than two families, provided there is no external evidence of occupancy by more than one family.

The question thus presented is what this bylaw language means. As the Town and the Bignamis contend, should it be read as requiring that the house have been originally constructed as a single-family dwelling and been so constructed before 1962, the effective date of the bylaw? This house was not. It was originally constructed as a stable. Alternatively, as the Serranos argue, should the phrase "originally constructed for single-family occupancy" be construed to mean that the dwelling need only have been a single-family house before 1962? If that is the test, this house would meet it.

Standard of Review

The board's decision was not filed with the Town Clerk within 90-days of its vote to deny the Serranos' request for issuance of the special permit. The Serranos timely filed the required notice of this failure pursuant to G.L. c. 40A, §9. The result is a constructive allowance of the permit. G.L. c. 40A, §9.

"Zoning relief granted constructively is not beyond judicial review." Girard v. Bd. of Appeals, 14 Mass. App. Ct. 334 , 338 (1982). [Note 3] The standard of review for such a constructive grant is the same as that given to an affirmative grant: to "determine whether facts exist which would have enabled the board to grant the relief." Girard, 14 Mass. App. Ct. at 338. See also Vaillancourt v. Gray Wolf Realty, LLC, 29 Mass. L. Rep. 496, 501 (Middlesex Super. Ct., Mar. 12, 2012); Niall v. Guaranteed Builders & Developers, Inc., 23 LCR 589 , 591 n.6, 593 n.14 (Mass. Land Ct., 2015).

In a G.L. c. 40A, §17 appeal, the court engages in "a combination of de novo and deferential analysis." Shirley Wayside Ltd. P'ship, 461 Mass. at 474-475; see also Britton, 59 Mass. App. Ct. at 72-73 (noting that court process for analyzing zoning board decisions is deferential to community planning but is not deferential regarding purely legal analysis). The court makes findings of fact de novo based upon the evidence presented at trial, with no deference to the zoning board's findings. Pendergast v. Bd. of Appeals of Barnstable, 331 Mass. 555 , 558-59 (1954); Shirley Wayside Ltd. P'ship, 461 Mass. at 474. The court then "determines the content and meaning of statutes and by-laws and . . . decides whether the board has chosen from those sources the proper criteria and standards to use in deciding to grant or deny the variance or special permit application." Shirley Wayside Ltd. P'ship, 461 Mass. at 474 (quoting Britton, 59 Mass. App. Ct. at 73-74). It is "[the] court's responsibility to determine the content and meaning of statutes, with no deference owed to how local authorities may have read them." Smith, 27 LCR at 234 (citing Britton, 59 Mass. App. Ct. at 73-74). Thus, with respect to the purely legal question of bylaw interpretation this case presents, the court owes the zoning board's constructive allowance no deference. See Britton, 59 Mass. App. Ct. at 73-74.

Analysis

As noted above, this case turns on the proper interpretation of Use #2 in the zoning bylaw. Bylaw interpretation, a question of law, uses the customary principles of statutory construction. Framingham Clinic, Inc., 382 Mass. at 290 (citing Kurz v. Board of Appeals of N. Reading, 341 Mass. 110 , 112 (1960)) (noting that the interpretation of a bylaw using undefined terms was a question of law for the court). These customary principles dictate that "[w]ords are to be accorded their ordinary meaning and approved usage." Welch v. Sudbury Youth Soccer Ass'n, 453 Mass. 352 , 355 (2009) (citing Pyle v. School Comm. of S. Hadley, 423 Mass. 283 , 286 (1996)); see also G.L. c. 4, §6 (same).

When statutory language, interpreted in the above fashion, is "clear and unambiguous, it is conclusive as to the legislative intent, and the courts enforce the statute according to its [plain] wording." Martha's Vineyard Land Bank Comm'n, 62 Mass. App. Ct. at 27-28 (internal citations and quotations omitted, alterations in original); see Pyle, 423 Mass. at 285. Consequently, in such cases, "judicial inquiry into the statute's meaning, in all but the most extraordinary circumstance, is finished." Martha's Vineyard Land Bank Comm'n, 62 Mass. App. Ct. at 28 (internal quotations omitted). "Where the ordinary meaning of the statutory terms yields a workable result, we need not resort to extrinsic aids of interpretation such as legislative history." Pyle, 423 Mass. at 286 (citing Bronstein v. Prudential Ins. Co., 390 Mass. 701 , 704 (1984)). This is so even if the court "recognize[s] a potential unfairness within a statute's clear language [or] that a statute creates a potential anomaly." Martha's Vineyard Land Bank Comm'n, 62 Mass. App. Ct. at 28 (quoting Commonwealth v. Mandell, 61 Mass. App. Ct. 526 , 528 (2004)) (alterations in original). [Note 4] Any such "corrective" action can only be done by the Legislature. Mandell, 61 Mass. App. Ct. at 528. Thus, the court is required to follow the clear language unless its application would lead to an "absurd result." Boukouvalas v. Atwood, 18 LCR 84 , 84 (Mass. Land Ct., 2010) (quoting Martha's Vineyard Land Bank Comm'n, 62 Mass. App. Ct. at 27-28) (internal citations and quotations omitted); see Shirley Wayside Ltd. P'ship, 461 Mass. at 477 (internal quotations and citations omitted) (noting that plain language must be enforced "unless a literal construction would yield an absurd or unworkable result").

The relevant provision, Use #2, is plain, clear, and unambiguous. [Note 5] A "[d]etached dwelling on a separate lot originally constructed for single-family occupancy prior to the effective date of this By-law [1962]" means exactly that. To be eligible for two-family conversion, what is currently a detached dwelling must have been originally constructed for single-family occupancy, and been so constructed prior to 1962. The house at 150 Tappan Street, although currently a detached dwelling, was originally constructed as a stable. It did not become a house (an artist's studio) until decades later, in 1925, when it received building permits allowing alterations for that purpose.

The Serranos' argument - that "originally constructed for single-family occupancy" means constructed as a single-family house before 1962 - ignores the word "originally," and thus fails. See Wolfe v. Gormally, 440 Mass. 699 , 704 (2004) (statutes must "be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous") (internal citations and quotations omitted). Their argument that "originally constructed for single-family occupancy" modifies "detached dwelling", and should be determined at the time a structure becomes a dwelling on a separate lot rather than at the time the structure was originally constructed, is convoluted and strained. Martha's Vineyard Land Bank Comm'n, 62 Mass. App. Ct. at 28 n.4 (internal quotations and citations omitted) (explaining that a statute's meaning is clear if anyone fairly reading it would come to the same conclusion and any other meaning would be "strained, or far-fetched"). [Note 6] Fairly read, the bylaw can only mean what it plainly says: the house must have been "originally constructed for single-family occupancy." The simplest and most evident explanation for the bylaw's reference to detached dwellings is to make clear that attached houses, even if they were originally constructed as single-family residences, may not be converted into two-families. It is unnecessary and improper to review the Serranos' alternate interpretations of the bylaw which are "claimed to be based on legislative history[,] since our conclusion that the statute is plain and unambiguous establishes that we need no assistance from legislative history." New England Med. Center, Inc., 381 Mass. at 751.

Finally, the inability of a single-family dwelling originally constructed as a stable to now become a large two-family dwelling by special permit under the bylaw is not an absurd result. Shirley Wayside Ltd. P'ship, 461 Mass. at 477 (internal quotations and citations omitted) (courts must enforce clear language unless it would lead to an "absurd or unworkable result"). Under the bylaw's plain language, detached dwellings that were originally constructed as accessory structures, including stables, are not eligible for two-family conversion. Martha's Vineyard Land Bank Comm'n, 62 Mass. App. Ct. at 28 (clear language must be followed even if there is the potential for "unfairness" or an "anomaly" in particular cases). Far from being absurd, this rule is clear and easy to enforce. The process of discovering a structure's original construction is straightforward and the decision whether this original construction was a single-family dwelling is simple. Brookline has chosen not to allow all current single-family dwellings to be eligible for two-family conversion. It has put limits on these conversions, and these limits make perfect sense. The requirement that eligible properties must have been originally constructed as single-family dwellings results in a straightforward discovery process and a simple decision-making process. If all single-family dwellings are not to be eligible, a line needed to be drawn, and this one is practical. See Irwin v. Gavit, 268 U.S. 161, 168 (1925) (Holmes, J.) (noting that courts need not be troubled by the fact that a line was drawn, for nearly all legal questions worth arguing involve line-drawing).

Furthermore, this choice was logical. Dwellings that were originally accessory structures tend to be located behind and in close-proximity to dwellings that were originally main houses. Dwellings that began as accessory structures are therefore in subservient positions. Allowing expansion on these lots would continue adding additional people onto parcels that tend to be small, close to neighboring properties, and often with constrained access (in this case, a narrow shared driveway). As a result, it is reasonable that these dwellings should not be eligible for two-family conversion if only to avoid the general exacerbation of tightly-packed rear lots. While that exacerbation might, or might not, be the case in this specific instance, zoning rules must be applicable uniformly. See Lopes v. Peabody, 417 Mass. 299 , 303 (1994) (courts should avoid "a crazy-quilt pattern of the enforceability of a zoning law intended to have uniform applicability"); Everpure Ice Mfg. Co. v. Board of Appeals of Lawrence, 324 Mass. 433 , 439 (1949) ("A zoning ordinance is intended to apply uniformly to all property located in a particular district . . . and the properties of all the owners in that district [must be] subjected to the same restrictions for the common benefit of all").

Conclusion

For the foregoing reasons, I find and rule that the house at 150 Tappan Street is not eligible for two-family conversion under the Brookline zoning bylaw, and the zoning board's constructive allowance of a special permit allowing it to do so is thus REVERSED and VACATED.

Judgment shall enter accordingly.

SO ORDERED.