In many M.G.L. c. 40A, § 17, appeals, courts are required to interpret the local zoning bylaw or ordinance to address the underlying substantive issue. The judge's standard of review in these cases must give "substantial deference" to a board's reasonable interpretation of its zoning code. However, erroneous interpretations, are not entitled to deference. And it is interesting to see how this dynamic plays out both during a case and after the fact. The recent case of Mauri v. Zoning Bd. of Appeals of Newton, 83 Mass. App. Ct. 336 (2013) (on appeal from the Land Court) provides a good example.
In Mauri, the court looked at the "longstanding rule that considers adjoining undersized lots held in common ownership as one lot for zoning purposes, in the context of a local [Newton's] zoning ordinance that has been interpreted to provide protection against such merger." Id. at 337.
In this case, the defendants owned two adjoining residential lots that were undersized under the current zoning ordinance. Or, in zoning lingo, two "pre-existing nonconforming lots". Lot 39 has a garage and Lot 40 has a single-family dwelling. The defendants sought a building permit to construct a single-family home on the garage lot. Plaintiffs objected due to density concerns, even though the proposed house would have met current setback requirements (the proposed house would have been between 12 to 14.5 feet from plaintiffs' existing home).
The Newton building inspector issued the building permit for the new home, finding that the garage lot fell within the grandfathering provisions found in the local zoning ordinance. Although plaintiffs appealed the decision the ZBA, the requisite supermajority vote was not reached to revoke the permit. In the Land Court, however, the plaintiffs prevailed on summary judgment and the permit was revoked. The Appeals Court affirmed the lower court's decision.
After finding that the plaintiffs had standing to bring the appeal, the Appeals Court (and the Land Court) addressed the concept of "merger" in the context of zoning and the desire for conforming lots, both pursuant to M.G.L. c. 40A, § 6, and Newton's local grandfathering ordinance provision, §30-15(c).* The Appeals Court found that the protections afforded by c. 40A, § 6, did not apply to the garage lot in this instance because it was not a vacant lot.
The court then looked to see whether the local grandfathering provision offered more liberal protection. Ultimately, the Appeals Court held that it did not. As it often does, the court's analysis involved both an issue of grammatical interpretation and statutory construction. The court's inquiry focused on "which lot must be improved with a dwelling in order to qualify for the exemption; that is whether the term "such lot" as used in § 30-15(c)(3)(b) refers to the lot for which a building permit is sought, i.e., "the lot at issue," [garage lot] or the "adjacent lot" [house lot]. The Appeals Court affirmed the Land Court's interpretation that "such lot" refers to the "lot in question" (the garage lot). As a result, it is the garage lot that must be improved with a single or two-family dwelling in order to qualify for grandfather protection, which was not the case here. See id. at 342.
The court also considered whether this interpretation was illogical or unreasonable in any way. Defendants made a colorable argument in this regard, asserting that "it is illogical to provide merger protection for a lot that is already improved with a residential structure as it would already be protected as a prior nonconforming use" and thus the only lot requiring protection was the garage lot. See id. The Appeals Court was not swayed by their argument, nor the arguments raised in the amici briefs that asserted that upholding the Land Court decision "will create great havoc in the city as residents long have been relying on the buildable status of lots such as the garage lot." Id. at 343-44.
And, indeed, the City of Newton now seems to be struggling with how to sort out the consequences of this decision, i.e., how to navigate the new terrain created by the courts' interpretation of § 30-15(c). In a Working Session Memorandum posted online, dated March 22, 2013, from Newton's Director of Planning and Development to the Chair of the Board of Aldermen and the Zoning and Planning Committee, the ramifications of the Mauri decision are noted-for example, at least ten homes are now rendered non-compliant by the decision. The scenarios under two different petitions introduced to address the noncompliance are also discussed in the seven page memorandum. An additional memorandum related to this issue has also been circulated in Newton (available here) and further hashes out the various options available to the city to deal with the Mauri aftermath. It appears that the latest meeting occurred on April 22, but there is no further information available online as of this post. We will continue to monitor how Newton ultimately deals with a court decision that has had some tangible consequences for at least some of the city's landowners.
* Here is the full text of the local zoning ordinance at issue (language specifically reviewed by the court in italics/bold):
Any increase in area, frontage, or setback requirements ... shall apply to any lot in a residential zoning district except to the extent that either the provisions of [G.L. c. 40A, § 6,] as in effect on January 1, 2001, or the following provisions, provide otherwise. Any increase in area, frontage, or setback requirements prescribed in [this ordinance] shall not apply to any lot in a residential district if all of the following requirements are met:
(1) At the time of the recording or endorsement ... or on October 11, 1940, if the recording or endorsement occurred before October 11, 1940, the lot (a) conformed to the requirements in effect at the time of recording or endorsement, whichever occurred sooner, but did not conform to the increased requirements, and (b) had at least five thousand square feet of area, and (c) had a least fifty feet of frontage.
(2) The size or shape of the lot has not changed since the lot was created unless such change complied with the provisions of section 30-26.
(3) Either (a) [t]he lot was not held in common ownership at any time after January 1, 1995, with an adjoining lot or lots that had continuous frontage on the same street with the lot in question, or (b) [i]f the lot was held in common ownership at any time after January 1, 1995, with an adjoining lot or lots that had continuous frontage on the same street with the lot in question, such lot had on it a single family or two-family dwelling.
Written by Kristen M. Ploetz, Esq., of Green Lodestar Communications & Consulting, LLC, on behalf of Jeffrey T. Angley, P.C. Edited by Jeffrey T. Angley, Esq.
Copyright (c) 2011-2013 by Jeffrey T. Angley, P.C. All rights reserved.
Disclaimer: The information contained in this post is general in nature and for educational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel. This post does not create an attorney-client relationship between the reader and Jeffrey T. Angley, P.C., Phillips & Angley or their attorneys.