It is a basic and oft-cited principle of Massachusetts zoning law that the courts give "'some measure of deference' to the local board's interpretation of its own zoning by-law." Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68, 73 (2003), quoting APT Asset Mgmt., Inc. v. Board of Appeals of Melrose, 50 Mass. App. Ct. 133, 138 (2000). The standard for this measure of deference, however, is tautological: the courts "accord deference to a local board's reasonable interpretation of its own zoning bylaw, with the caveat that an 'incorrect interpretation of a statute . . . is not entitled to deference.'" Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirley, 461 Mass. 469, 475 (2012), quoting Atlanticare Med. Ctr. v. Commissioner of the Div. of Med. Assistance, 439 Mass. 1, 6 (2003) (citations omitted). Put differently, deference is given to a local bylaw interpretation when the courts happen to agree with that interpretation. This standard, as one might expect, is not completely conducive to predictable outcomes.
In our practice, we encounter many situations that illustrate the uncertainty that this aspect of zoning law creates. One example is where a building inspector develops a "policy" for how to fill in the interstices in a bylaw provision, and that "policy" then changes from application to application. This scenario likely occurs on a daily basis throughout the Commonwealth, as building inspectors have to interpret, apply and adapt local zoning bylaws to the various development proposals presented to them.
On the building inspectors' side is the principle quoted above. In principle, it is also supported by the tenet that "the right of the public to have the zoning by-law properly enforced cannot be forfeited by the action of its officers." Cullen v. Building Inspector of North Attleborough, 353 Mass. 671, 675 (1968). Indeed, even if a party relies upon an official's mistake to her substantial economic detriment, there can be no municipal estoppel; the official is allowed to correct his mistake and rescind the permit. See id. Accordingly, why couldn't a building inspector change his "policy", if the old "policy" proved wrong?
Other rules of law, however, undermine the building inspectors' position. One of the basic organizing principles of the Zoning Act is uniformity. See G. L. c. 40A, § 4 ("[any] zoning ordinance or by-law which divides cities and towns into districts shall be uniform within the district for each class or kind of structures or uses permitted"). This requirement reflects "'principles of equal treatment: all land in similar circumstances should be treated alike, so that if anyone can go ahead with a certain development [in a district], then so can everybody else.'" Bernstein v. Planning Bd. of Stockbridge, 76 Mass. App. Ct. 759, 768 (2010), quoting SCIT, Inc. v. Planning Bd. of Braintree, 19 Mass. App. Ct. 101, 107 (1984).
In addition, the basic standard of review in zoning cases-the "arbitrary and capricious" standard-would seem to be offended by "policies" that change from applicant to applicant. As Justice Kass wrote in Fafard v. Conservation Commn. of Reading, when a local, land-use board acts upon
ad hoc agenda, then [it] has acted arbitrarily because the basis for action is not uniform, and, it follows, is not predictable. . . In the administration of controls limiting the use of land-as with any exercise of the police power-uniformity of standards and enforcement are of the essence. If the laws are not applied equally they do not protect equally.
41 Mass. App. Ct. 565, 568-569 (1996).
Nevertheless, until a week or so ago, we practitioner could not accurately project how the Massachusetts judiciary would weigh in on this precise issue. On October 22, 2014, however, the Appeals Court issued its rescript decision in Pelullo v. Croft, Appeals Court Case No. 13-P-28, Slip Opinion dated October 22, 2014.
In Pelullo, the applicant sought a building permit to construct a single family residence on his property in Natick, Massachusetts. "The plaintiff, an abutter, filed an opposition on grounds that lot 1A did not meet the by-law's minimum 125 foot lot depth requirement. The building inspector issued the permit reasoning that in cases involving 'odd-shaped lots,' the 'depth is determined by established practices and procedures of the Building Department which involve a calculation of lot depth on an angle in conjunction with a determination as to satisfaction of all other applicable dimensional requirements.'" Id., at *1.
Striking the building permit down, the Appeals Court reasoned that "[n]either the building inspector nor the board explained why a diagonal measurement of lot depth was consistent with the ordinary meaning of that term, and failed to offer any reasoned basis for measuring lot depth based on a diagonal line." Id., at *2. Moreover, "[a]s the [Land Court] judge found, [the property] is not oddly shaped. [It] is more or less rectangular in shape with front and rear lot lines of about 170 feet, and side lot lines that vary from about eighty-six feet to seventy-one feet." Id. Thus, the court concluded that "[t]he use of a diagonal line to measure the depth of a rectangular lot is contrary to the ordinary and accepted meaning of the term lot depth. It is thus an incorrect interpretation of the by-law, and is not entitled to judicial deference." Id.
The court, however, went a step further, and seemed to toll the death knell for building inspectors' citation to "established practice" as the basis to save an otherwise arbitrary "policy":
Even weaker is the building inspector's bald assertion of an established practice using a diagonal line to measure the depth of lots regarded as oddly shaped. There is no evidence in the record to support the claim. Moreover, in the absence of any objective standard for determining what constitutes an 'odd-shaped lot,' the use of such a criteria would lead to arbitrary and idiosyncratic results. As the judge explained in his well-reasoned decision, '"[t]he right of the public to have the zoning by-law properly enforced cannot be forfeited by the actions of a municipality's officers. Nor can a permit legalize a structure or use that violates a zoning by-law."'
Id., quoting the trial decision (ultimately quoting Building Inspector of Franklin v. Dispatch Communications of New England, 48 Mass. App. Ct. 709, 715 (2000) (emphasis added).
Thus, after Pelullo, building inspectors everywhere will need to think twice about applying different "policies" for interpreting and applying local bylaws to different applications under the same bylaw provisions. Towns, beware of ad hoc zoning "policies"!
Written by Nicholas P. Shapiro, Esq.
Copyright (c) 2011-2014 by Jeffrey T. Angley, P.C. All rights reserved.
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